Plaintiff v Defendant

2 On 17 May 2024, I published reasons for judgment in this proceeding.[1] As explained in those reasons, the deceased's estate comprised a little over $1.5 million in net assets available for distribution between the deceased's seven children. She had intended that the estate be divided equally amongst them. However, distribution in accordance with the deceased's will would fail to discharge the deceased's moral duty to provide the plaintiff with the means to acquire basic accommodation in the area where he has lived most of his life, Glenroy. Five of the other six beneficiaries were of adequate means to live a comfortable life. The sixth, Paul Roper, was the subject of an agreement that his one-seventh share of the residuary estate would not be affected by any family provision order I might make.

3 I sought clarification from the parties as to how the agreement about Paul Roper's share might relate to any costs of the proceeding incurred by the estate. The defendant has since stated that the agreement does not preserve his share from the effects of the costs of the proceeding on the estate.[2]

4 I made orders enabling the parties to file affidavit material and submissions on the appropriate amount of the provision required for the plaintiff, consistent with the reasons for judgment. The reasons included the following remarks in this regard:

1. I accept that Daniel was, by the time the deceased died, dependent on the deceased for rent-free accommodation and without the means of obtaining even basic accommodation himself, and that there was in those circumstances a moral duty on the testator to make adequate provision for him from her estate to avoid homelessness. This is what would have been required for the deceased to provide Daniel with 'proper maintenance and support'. 'Proper maintenance and support' in this case does not mean free accommodation for life in the Andrew Street property, still less a life interest of that kind along with a monetary provision of $373,000 needed to maintain that property and meet its outgoings and the other exigencies specified by Daniel in his originating motion and summons. Given the modest size of the estate and the testator's wishes to provide a meaningful bequest to all her children, 'proper maintenance and support' for Daniel means the minimum reasonably required to give Daniel the means of avoiding homelessness and to remain in the area in which he has spent most of his life.
2. That means a small flat, for which he will require funds to meet the purchase price, stamp duty and registration, and a relatively modest lump sum, perhaps in the vicinity of about $150,000, to help him meet outgoings and contingencies. The lump sum is to be quantified on the expectation that he will continue to receive welfare payments because of his reduced capacity for work, and that welfare payments will be sufficient to meet his food, any health and pharmaceutical gap payments, and utility expenses. It appears that his payments from Centrelink have met his expenses of that kind over recent years, leaving him with a small amount of savings. It is reasonable to expect that he will be able to supplement his Centrelink payments with at least some earned income to help meet the additional costs he has not faced for the last 20 years, such as owners' corporation fees and insurance. During the proceeding and the hearing, he showed keen intelligence, eloquence (both written and oral) and skill with IT. He is also assessed by Centrelink as being able to work for up to 22 hours per week. It is therefore reasonable to expect that he can employ his skills to obtain earnings of some kind. Interest earned on the lump sum should also assist. As already mentioned, I will give the parties an opportunity to make submissions and adduce material on the appropriate amount of the provision required, in line with what I have outlined in this paragraph.

5 The plaintiff did not file any affidavit material.

6 The defendant filed an affidavit containing a price estimate for a one-bedroom ground level flat or unit in or around Glenroy, provided by an expert valuer. The valuer opined that one-bedroom properties sold in the past six months showed prices generally falling in the range of $280,000 to $320,000. This evidence was not disputed by the plaintiff.

7 The defendant submitted that provision of $300,000 for the acquisition of a flat or unit would be 'more than sufficient'.

8 I will treat $320,000 as the maximum price the plaintiff would pay in acquiring basic accommodation in Glenroy.

9 The defendant also filed an affidavit of his solicitor opining or observing that, assuming the plaintiff holds a current Services Australia Pensioner Concession Card or Health Care Card, he would be able to claim a full stamp duty exemption on the transfer of such a property to himself. The solicitor also estimated that conveyancing costs ought not to exceed $1,500. Although the plaintiff did not file any evidence disputing this, I decline to make any assumption that the plaintiff would obtain a stamp duty exemption. I will make additional provision for $15,000 in acquisition costs.

10 I turn to the quantification of a further lump sum appropriate for the plaintiff's adequate maintenance and support apart from his accommodation.

11 The defendant submitted that any additional amount awarded apart from a provision for accommodation 'ought to be limited to between $50,000 and $100,000'.

12 The plaintiff submitted that a total amount of approximately $780,000 to $805,000 should be ordered, not delineating between the amount he requires for accommodation and the amount that is appropriate as an additional lump sum.

13 The plaintiff disputed my description of his mother's estate as a modest one, and submitted that the deceased's estate was 'sizeable with more than adequate resources to provide proper support' to him. He also submitted that the other beneficiaries all have adequate resources and the reduction in their benefit is 'not a relevant concern'. He submitted that the ruling foreshadowed in my reasons for judgment was 'based on an absolute best case financial scenario with the minimal necessary to stave off homelessness and no capacity for handling the vicissitudes of life, an approach completely contrary to the principles and practice applied by the authorities with dozens of cases refuting that approach'. He submitted that 'the lowest total amounts plaintiffs have been left with in these circumstances was $650,000 in 2018 and $740,000 in 2021, accounting for inflation equivalent to ~ $785,000-$805,000 today'.

14 The plaintiff provided a detailed analysis of outcomes in many previous cases in the courts. He placed particular reliance on the Court of Appeal's 2018 decision in Davison v Kempson & Ors.[3] He described that case as 'almost identical' to this case. The case concerned an estate of about $1.7 million, which stood to be evenly distributed under the intestacy provisions between three children of the deceased. The applicant was one of the children, and had lived rent-free with the deceased for many years, caring for her. One of the other beneficiaries was in financial need and the other was not. The outcome of the Court of Appeal's decision was that the applicant received $650,000 from the estate. Due to increases in land values and the cost of living since 2017, the plaintiff submitted that this corresponds to $805,000 in 2024.

15 I do not agree that Davison was almost identical to the present case. For example, the deceased, who had had a stroke and became blind, had been dependent on the applicant as her primary carer for about the last 12 years of her life, and the applicant over that time paid about $195,000 in cash received as carer's pension to the deceased, directly contributing to the monetary value of her estate. This was one of the matters the Court of Appeal took into account when re-exercising the trial judge's discretion as to the appropriate amount of provision.[4] The deceased in this case was not in need of a full-time carer, save perhaps for periods in the last two or three years of her life; and the estimated unpaid labour the plaintiff provided to the deceased here would fall materially short of the primary care that was provided over 12 years by the applicant to the deceased in Davison. Also, in Davison there was no will of the deceased, and only three children of the deceased amongst whom the estate was to be divided. Here there is a slightly lesser amount available for distribution, amongst seven. The effect of the increase in the applicant's provision ordered in Davison had a substantially milder impact on the amounts received by other beneficiaries, and the further provision could not have been said to diverge from the deceased's will or intentions at all, because she had died intestate.

16 Are the intentions of the deceased and the effect on the other beneficiaries in the present case relevant matters for me to consider?

17 The plaintiff submits, in effect, that they are not. He contends that, at least as regards his five siblings who are of sufficient means to live comfortably, any diminution in the amounts they would receive is irrelevant. He contends that the focus should be exclusively on calculating the amount the plaintiff needs for his proper maintenance and support, and that this amount cannot fall below what has been ordered in previous cases, such as (principally) Davison.

18 Although decided in 2018, Davison was governed by the provisions of the Administration and Probate Act 1958 prior to their amendment by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. The 2014 amendments have altered the statutory framework in two ways that are material to the task before me.

19 First, they have done so by adding the matters referred to in s 91A(1) as matters I must consider:

(1) In making a family provision order, the Court must have regard to -

(a) the deceased's will, if any; and

(b) any evidence of the deceased's reasons for making the dispositions in the deceased's will (if any); and

(c) any other evidence of the deceased's intentions in relation to providing for the eligible person.

20 Secondly, the list of relevant considerations previously located in s 91(4) of the Act prior to the 2014 amendments, and now located as discretionary relevant considerations in s 91A(2), includes the following new consideration:

(l) the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; ...

21 How might these mandatory and discretionary considerations affect the task? Can they have any impact on determining the appropriate amount of a family provision order? In my view they can do so, at least to some extent. That is because the statutory expressions in ss 91(1) and (2)(d) of the Act, 'proper maintenance and support', and 'adequate provision for the proper maintenance and support of the eligible person', are somewhat flexible, and may take account of contextual matters other than the financial needs of the applicant. In particular, an assessment of what is 'proper' can be influenced by the expressed intentions of the testator and the effects an order would have on other beneficiaries, in my view. In Davison,[5] the Court of Appeal quoted a passage from Dixon CJ's judgment in Pontifical Society for Propagation of Faith v Scales[6] that makes this point (underlined):

... 'Adequate' and 'proper' in particular must be considered as words which must always be relative. The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should rewrite the law of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.[7]

22 There is no specific reference to the purposes of s 91A(1) or s 91A(4)(d) of the Act in the second reading speech associated with the 2014 amendments. Nor is there a recommendation specifically relating to any such provisions in the Victorian Law Reform Commission's report referred to in the second reading speech.[8] Nevertheless, that report did record views that might explain their inclusion. For example, in the summary report and recommendations volume, the VLRC reported (references omitted):[9]

There is a perception that the law does not accord with community expectations. A member of the public who had been an executor and beneficiary of an estate against which a family provision claim had been made expressed dismay that, in her view, a judge had been permitted to over-rule her mother's wishes where all children had been equally provided for. Another member of the public in a similar situation expressed the view that people do not want their wills changed and are generally not aware that this can happen.

23 It is likely that the inclusion of s 91A(1) as a mandatory consideration, and s 91A(4)(l) as a discretionary one, were intended by Parliament to reinforce the importance of the testator's intentions as the starting point of the exercise. In my view, the testator's intentions may inform the Court's evaluation of what amounts to 'proper' maintenance and support for the applicant, although that cannot be taken too far: the testator's intentions must be balanced with the financial needs of the applicant and modified to the extent required to meet those needs.

24 Taking into account the current Act and the authorities, and making allowances for similarities and differences between the present case and the case of Davison, I think it is appropriate to allow the plaintiff an amount of $300,000, in addition to the amount of $335,000 that I estimate would enable him to acquire basic accommodation in Glenroy, making $635,000 in total.

25 In deciding on an additional amount of $300,000, I have concluded that the amount of $150,000 I initially foreshadowed in my reasons for judgment was too low. A figure of $150,000 might have been expected, along with his Centrelink payments and some modest additional earnings, to meet the plaintiff's living expenses. However, it would have been inadequate to meet an emergency. I accept that it is necessary to substantially increase it to provide reasonable confidence that vicissitudes can be met without hardship. The amount of $300,000 should give the plaintiff reasonable confidence that he has an amount set aside for the vicissitudes of life, while taking into account the other contextual matters of relevance to the case, including the amount of funds available for distribution and the deceased's wishes to benefit all her children with a share of the estate.

26 Although the total of $635,000 is lower than the range urged by the plaintiff, I do not think that this outcome is out of step with the authorities. The approach required under the Act and the authorities is not one that requires precise consistency with calculations and outcomes in other cases. In any event, comparing this case with Davison in particular, there are distinguishing factors that justify a somewhat lower amount in this case, as summarised in paragraph 15 above.

27 As to six other beneficiaries, I acknowledge that only one of them might be said to be in financial need, and he is protected by the agreement to quarantine his share of the residuary estate. The other five are not in financial distress. However, I do not ignore the effect of a family provision order on them. Some of them have had poor health, and some have other kinds of financial demands in their lives, such as responsibilities for children. None of them could be said to be particularly wealthy. A bequest from the estate would be meaningful to them all. They were all dutiful to their mother and helped care for her in her final years. In my view, the distribution that was intended for them by their mother should not be diluted beyond what is needed to provide a basic level of accommodation and lifestyle to the plaintiff and the minimum amount likely to be needed to meet the vicissitudes of life as he gets older.

28 I will make a family provision order of $635,000 in favour of the plaintiff, to take effect in place of his entitlement to a share of the residuary estate pursuant to the terms of the deceased's will. Mr Paul Roper will receive $61,000 plus a one-seventh share of what the value of the residuary estate would have been in the absence of the $635,000 subtracted from the estate to fund the family provision order.

29 I will hear the parties on the question of costs.

[1] Roper v Roper [2024] VSC 249.

[2] Defendant's Submissions as to Quantum dated 17 June 2024, [11].

[3] [2018] VSCA 51 (Davison).

[6] [1962] HCA 19; (1962) 107 CLR 9.

[8] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 2014, 3442-5; Victorian Law Reform Commission, Succession Laws (Final Report, August 2013).

[9] Victorian Law Reform Commission, Succession Laws (Final Report, August 2013) 103 [6.25].