Plaintiff v Defendants

2 On 11 October 2006, probate of Mr Watchorn's will dated 5 April 2000 was granted to the defendants, David Huntley and Norman Watchorn, as the executors named in the will.

(a) Miss Allen receive various household effects including furniture, books and paintings;

(b) Norman Watchorn receive Mr Watchorn's car;

(c) Miss Allen receive what Ms Sparke, counsel for the defendants, described as a lifetime interest in a property at 7 Boothby Street, Northcote, with a power in the trustees to sell the property and pay the income to Miss Allen; the property was not to be sold without her written consent and, during the period it remained unsold, Miss Allen would be permitted to live there. Curiously, the will went on to stipulate in clause 4.05 that the property was not to be sold until after Miss Allen's death, whether or not she was domiciled there. On her death, the property passes to Mr Watchorn's six nieces and nephews; and

(d) the residue of the estate was to be held on trust for Mr Watchorn's six nieces and nephews.

**4 The will did not provide for a life interest as such in the property but it did stipulate that Miss Allen, who is described in the will as "my friend Elsie", be allowed to live in the property, subject to paying the outgoings of the property and keeping it insured and in reasonable repair, until Miss Allen gave her written consent to the sale of the property.

5 The Boothby Street property is now valued at approximately $775,000. In addition to this, the estate consists of cash investments and monies held in trust of $238,000.

6 Mr Watchorn was born in County Carlow, Ireland and was 85 years of age when he died. He never married and had no children. Mr Watchorn emigrated to Australia in 1957. The residuary beneficiaries and remaindermen are Norman Watchorn, a nephew, and five other nieces and nephews who live in Ireland.

7 On 11 May 2010, a directions hearing took place in this proceeding before Efthim AsJ. It was remarked in the "other matters" segment of that order that Miss Allen seeks the whole of the estate.

8 Section 91(1) of the Act provides:**

Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

**9 The jurisdiction of the Court to make an order under Part IV of the Act is dependent upon it being satisfied that Mr Watchorn had responsibility to make provision for Miss Allen. The Court is also required to be satisfied that the will does not make adequate provision for Miss Allen's proper maintenance and support. Consideration of those matters involves an assessment of the question of what provision a wise and just person would have thought it their moral duty to make in the interests of Miss Allen had they been fully aware of the relevant circumstances. The question is to be answered as at the date of death according to the standards of a wise and just testator, that is, the standards of a fair and reasonable person in the community. In answering this question the Court is bound to have regard to the factors set out in s 91(4)(e) - (o) of the Act, as well as any other matter that the Court considers relevant[1].

10 At the hearing of this matter, the issue of whether Mr Watchorn had responsibility to make provision for Miss Allen was the predominant area of dispute. Miss Allen contends that she was more than just a friend of Mr Watchorn rather, she says, she was his domestic partner. Because of this, she contends that Mr Watchorn was under a duty and responsibility to make provision for her in his will, which he indeed acknowledged by the terms of his will. However she contends that the provision he made was not adequate.

11 The defendants, more particularly Norman Watchorn who essentially conducted the matter on behalf of the estate, contended that the will in its current form is not impeachable. His co-executor, the first named defendant, who is a nephew of Miss Allen, took no part in the proceeding, save for deposing to the financial position of the estate in a short affidavit.

12 In analysing the evidence, where provision is sought from a person who is not related by marriage or blood to the testator, I have had regard to the following observations made by Harper J as he then was in Schmidt v Watkins,[2] one of the first authorities dealing with an application of this type in this State following on from the amendments to s 91 affected by the Wills Act 1997 which allowed persons who are not related by marriage or blood to make claims for further provision. Harper J observed at [22] (citation omitted):**

... It is equally clear that a duty to provide in one's will for the proper maintenance and support of a person does not arise unless the relationship between the deceased and the claimant has within it a particular quality. A mere business relationship would not of itself be enough. Nor would one which did not go beyond that of debtor and creditor. Even one founded upon, or which resulted in, acts of kindness or consideration that went well beyond the ordinary, might not do so. Generally speaking, however, a "domestic [relationship] where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner" would be sufficient to bring either one of those partners within the class of persons to whom the other had a responsibility (although, of course, in the particular case that responsibility might not arise or might have already been discharged).

13 Much of the affidavit evidence filed in the proceeding was directed to the issue of the involvement that Miss Allen had in Mr Watchorn's life. While much of that material is uncontradicted, the Court must be careful and bear in mind when considering that evidence that Mr Watchorn is not alive to give his version of events and defend the terms of his will. In Schmidt v Watkins, Harper J observed at [19] (citations omitted):

The courts have often pointed to the difficulty of assessing evidence concerning a person who is dead. An example may be found in the judgment of Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales. His Honour referred to the principle that the provision which a court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interest of his widow and children had been fully aware of all the relevant circumstances. The Chief Justice continued:

"The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them. Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told, but a testator is dead and cannot tell his."

14 Miss Allen relied on the following affidavits in her application:

(a) Elsie Myrtle Allen sworn 7 August 2008;

(b) Maree Ellen Rickard sworn 13 October 2010;

(c) Antonietta Caruc sworn 13 October 2010;

(d) Elsie Myrtle Allen sworn 13 October 2010;

(e) Raye Derwitt Bailey sworn 13 October 2010;

(f) Julie Elizabeth Adam sworn 15 October 2010;

(g) Alan Frederick Huntley sworn 15 October 2010; and

(h) Elsie Myrtle Allen sworn 1 November 2010.

15 The defendants relied on the following affidavits:

(a) Norman Lesley Watchorn sworn 10 September 2008;

(b) Norman Lesley Watchorn sworn 21 October 2010; and

(c) David Huntley sworn 27 October 2010.

**David Huntley's affidavit deposed to the financial position of the estate at or about the date of the hearing of this matter.

16 Miss Allen was born in September 1927. She never married and has no children. She is presently 83 years of age.

17 Miss Allen held various positions after leaving school at the age of 14. She moved to Melbourne when she was 23 and began work at Coles. Ultimately, she became a floor supervisor in the food hall. Subsequently, she worked for the State Insurance Office. While at Coles, she met Mr Watchorn's sister-in-law, Phyllis, who was married to Mr Watchorn's brother, Abraham. Mr Watchorn had come to Australia in 1957. His twin brother Abraham, his wife Phyllis and their son, Norman Watchorn, followed him four years later in 1961.

18 Phyllis and Miss Allen became close friends. Phyllis and Abraham Watchorn purchased a house in Thornbury but after several years they wanted to move to the outer suburbs. Mr Watchorn purchased the house at Thornbury from them. Phyllis Watchorn considered that Miss Allen and her mother, with whom Miss Allen was living at the time, would be good tenants for the Thornbury property and arranged a meeting with Mr Watchorn. Miss Allen and her mother decided to rent the house. Over time, a friendship developed between Miss Allen and Mr Watchorn. After Miss Allen and her mother moved into the Thornbury house, Mr Watchorn moved his tools and equipment into a shed at the property together with some of his belongings. He began to visit the house frequently on week nights and on Saturdays he would be at the house working in the shed. He attended for lunch on Sundays and after lunch Miss Allen and Mr Watchorn would often go for a drive or visit friends.

19 During this period, Mr Watchorn was boarding with an Irish couple, Mr and Mrs Graham. Mrs Graham was something of a surrogate mother to Mr Watchorn. She was around 20 years older than him. Mr Watchorn did not get on very well with his own mother who had died in the early sixties. His father had died in the late 1940s before Mr Watchorn emigrated to Australia.

20 Miss Allen's mother died in 1970 and she says that at that point, Mr Watchorn told her that he wanted to sell the house. The reason he gave, she says, is that Miss Allen's mother had died at the house and there were too many memories. Miss Allen left the Thornbury house and rented a property in Heidelberg. She says that when she left the house Mr Watchorn had not indicated to her that he was proposing to buy another house for her to live in. She had not informed him of her new address but he located her and told her of his intentions to buy another house. Indeed he had signed a contract for the purchase of another house but the sale had not proceeded.

21 Miss Allen says that following that unsuccessful transaction she attended various auctions. Mr Watchorn would normally work on Saturday mornings and when the auctions took place in the mornings she attended alone to bid. Where the auctions took place in the afternoon, she and Mr Watchorn would attend together. In 1971, the Boothby Street property was purchased and she moved in where she remains to this day.

22 After Boothby Street was purchased, Mr Watchorn stored his equipment in the garage and moved some of his belongings and personal possessions into the house as he had done at Thornbury. Miss Allen says that Mr Watchorn was at the house every morning and at weekends. She cooked him meals and he was effectively living with her, only leaving to sleep at the Grahams' house. When she initially took up occupation of the house she paid rent but after a time Mr Watchorn told her that she should not do so any longer.

23 She purchased a dog which Mr Watchorn, she says, regarded as his as well. He formed a close attachment to the dog and took it everywhere he went. She says that their funds were spent on food, clothes, entertainment, outgoings, maintenance and property and expenses associated with the dog and the other dogs that they subsequently had over the years. They planned their holidays around which of them would look after the dogs. The dogs were spoiled and had home cooked meals rather than canned food. The dogs lived inside the house and were their constant companions.

24 Mr Watchorn retired in 1985, after which Miss Allen says he spent every day at Boothby Street from early in the morning until late at night. He had his own key and when she was not at the house he would let himself in. He had his meals with her after she came home from work. They continued to do everything together as they had done from the mid seventies, taking the dog for a walk, going shopping and visiting friends and relatives.

25 Miss Allen says that she and Mr Watchorn attended all significant festive occasions relating to their respective families and mutual friends together such as Christmas, birthdays and weddings. They went to church together every Sunday as well as occasions such as the funerals of family and friends. She visited Ireland by herself and stayed with Mr Watchorn's relatives. She otherwise had no connection with that country. When those relatives came to Australia to visit, they made the Boothby property their base.

26 Significantly, she deposes that they did not have a sexual relationship but she says "they were a couple". She says that neighbours in Boothby Street would good-naturedly refer to her as "Mrs Watchorn".

27 Miss Allen retired in 1990. After the death of Mrs Graham in 1996, Mr Watchorn moved into the Boothby Street property permanently. Miss Allan deposes that he arrived at the house on the very day of Mrs Graham's burial at 7.00pm with his case packed and stated that he was not going back to the Graham household. Miss Allen says that Mrs Graham was a domineering woman who always got her way. She apparently ruled over Mr Watchorn and sometimes telephoned him at Boothby Street and told him to come "home". She says that because of this she thinks that he was in some way inhibited from moving in at Boothby Street and waited until after Mrs Graham's death before he felt comfortable in doing so.

28 At Boothby Street, she says that Mr Watchorn attended to the "things men do around the property" by which I take it to mean he attended to maintenance and repairs while Miss Allen says that she attended to the cooking, cleaning and general care of the property. They continued to socialise outside the home together, including volunteering at their church, attending social nights at the Maribyrnong Bowling Club, going on picnics and the like. Miss Allen remained close to Phyllis Watchorn who died in 2003.

29 Mr Watchorn was diagnosed with Alzheimer's disease in about 2003 and after this his condition steadily deteriorated. Miss Allen says that she cared for him and was his sole carer at all hours of the day and night. A stage was reached where Mr Watchorn would rise during the night, get dressed and try to get out the front door. She states that it was a fulltime role to care for him given his deteriorating condition. On occasion he would go into respite care for short periods. Ultimately, he was not able to even recognise her but she continued to look after him until she developed hip problems which required surgery. Her niece, Maree Rickard, helped arrange respite care for Mr Watchorn during the period that she was recuperating from the surgery, from which she had complications. During that period Mr Watchorn was assessed as requiring fulltime professional care and Maree Rickard attended that assessment as the family representative on her behalf. He remained in a hostel and was later transferred to a nursing home where he died in 2005.

30 After he went into fulltime care, she continued to handle his financial affairs and monitor his needs at the hostel and nursing home. She was the contact person at the hostel and nursing home if any issue arose in respect of his care and when she was not able to act in that role she nominated her niece, Maree, in her place.

31 Miss Allen says that she and Mr Watchorn were a couple and did everything together from the mid 1970s. Neither of them had a relationship with any other person during that time and Mr Watchorn was very possessive of her. She states that Mr Watchorn treated her as his wife and she treated him as her husband. He was accepted as part of her family and attended all of her family's functions.

32 She exhibits in her affidavit a collection of various photographs, wedding invitations, correspondence and cards that she says illustrates the nature of the relationship with Mr Watchorn.

33 That series of documents, which is Exhibit EMA6 to her affidavit of 7 August 2008, contains approximately 60 pages of material. What follows is what I consider to be the more significant of those documents in the context of this application.**

(a) In 1996, they were invited to a wedding of a relative of Miss Allen's, Kristen Huntley. Mr Watchorn and Miss Allen were invited to a wedding in January 1997 of Megan James and Aaron Perks at Korumburra. In January 1998, they were both invited to a wedding of people by the name of Rod and Rebecca.

(b) On 26 September 1998, Mr Watchorn wrote to Miss Allen. It is a letter quite affectionate and intimate in tone and was written from Boothby Street to Miss Allen when she was visiting Mr Watchorn's relatives in Ireland. It is apparently in response to an earlier letter from Miss Allen which was something of a travelogue of her visits to Mr Watchorn's various Irish relatives. Mr Watchorn relates various events which were occurring at home during her absence and informs her of routine every day domestic matters such as the serviceability of the television set. He concludes, "I will say God bless you hoping you won't have any trouble. Remember me to my dear cousin Jane and Maxine. Love to all from Samuel Peter Watchorn xxx xxx xxxx What a lovely name."

(c) In December 2001 they received a letter written to them by Iris, a relative of Mr Watchorn's in Ireland. The letter is addressed to both of them as a couple. Iris is obviously on very familiar terms with them and their domestic arrangement.

(d) There are several cards and letters containing Christmas greetings from relatives in Ireland. On 5 June 2002 they received a letter from "R and K" in Wicklow. It contains family news, details of medical ailments and complaints and other family news including deaths in the family. Other relatives wrote from Canada with Christmas greetings.

(d) In April 2003, a card addressed to both of them at Boothby Street from a woman called Valerie, apparently a daughter of Mr Norman Watchorn, was received from Ireland.

(e) In July 2003, an invitation was extended to Mr Watchorn and Miss Allen to attend the wedding of Avis Watchorn and Alexander Boyd at Clontarf in Ireland. Avis Boyd, as she now is, is one of the residuary beneficiaries under the will.

(f) There were post cards from people identified as Ruth and Vena who were visiting from overseas, it seems from Ireland. Again the tone in the communications assumes Mr Watchorn and Miss Allen were a couple.

(g) A woman called Sylvia wrote to them from Ireland with Christmas greetings and news from Ireland and is addressed to them as a couple. In 2002 Sylvia wrote another card in much the same tone.

(h) A cousin of Mr Watchorn's, Jane Gerlach, wrote from Canada to them both on a date which is not disclosed.

(i) A woman identifying herself as cousin Jane wrote to them both expressing Christmas greetings. The card refers to Edmonton so I would assume that the author of the greetings was from the Canadian branch of Mr Watchorn's family.

(j) The Order of Service for Mr Watchorn's Thanksgiving Service at Northern Community Church of Christ expresses thanks on behalf of Mr and Mrs Norman Watchorn and Miss Allen to all who attended the service and to those who had expressed their sympathy. (The minister who conducted the funeral service, Reverend Julie Adam stated in an affidavit filed on behalf of the Miss Allen in the proceeding that Miss Allen organised the funeral).

**34 The exhibit includes a number of other Christmas cards as well as correspondence addressed to them both containing sentiments in much the same vein as those to which I have referred to above.

35 The exhibit also contains a number of photographs of Mr Watchorn with Miss Allen with various of their respective relatives. It is difficult to glean much from those photographs save that they depict Mr Watchorn and Miss Allen together on a number of social occasions and for all appearances they are a couple.

36 In her affidavit of 13 October 2010, Miss Allen makes reference to her earlier affidavit, more particularly to the reference to the absence of a sexual component to their relationship. She deposes that she and Mr Watchorn had tried to engage in a sexual relationship however he had what she describes as a dysfunction and was unable to do so. She states that this is something that has embarrassed her and had hoped not to have to raise it in the public domain. She says that in all other respects they were a couple.

37 Miss Allen concludes by describing her present income situation. She receives a Centrelink pension of $689.58 a fortnight, a Vic Super superannuation payment of $170 per fortnight and an MLC pension payment of $110 a month. She says that the MLC pension has a capital value of approximately $18,000 and that her only other assets are savings of approximately $14,000 and an investment in Challenger Mortgage Trust of approximately $20,000. She does not have private health insurance.

38 Miss Allen was cross-examined by counsel for the defendants, Ms Sparke. Before this she gave brief oral evidence-in-chief. She stated that she was in perfect health save that she had an ulcer on her leg which has apparently been unresolved for some time and requires the attendance of a nurse from St Vincent's Hospital to change her dressing.

39 In cross-examination, Miss Allen was asked whether she continued to draw a single person's pension after Mr Watchorn moved into Boothby Street in 1996 and she agreed that she did. She was asked whether Centrelink was informed that she was living in the same house as Mr Watchorn and she replied, somewhat unconvincingly, that Centrelink knew of it and that she had "probably" told them. She stated that Centrelink was informed of this in writing but nonetheless they still continued to get single person's pensions. Asked whether Mr Watchorn ever told Centrelink that they were together as a couple, she responded that she did not know, although she thought he did. Ms Sparke pressed Miss Allen as to whether either had told Centrelink that they were living together as a couple to which she responded, "We weren't living together as a couple". Miss Allen elaborated that they were never separated. She said that Mr Watchorn was always there for breakfast, dinner and tea and they went everywhere together.

40 Questioned about Mr Watchorn's funeral, she agreed that she filled in the necessary paperwork that needed to be completed, including the death certificate. Reference was made to Exhibit EMA1 to Miss Allen's affidavit, which is Mr Watchorn's death certificate. In the segment of that document which requires the identification of the informant, it identifies Miss Allen and describes her relationship to Mr Watchorn as a "friend" of the deceased. Miss Allen stated that she would never have used that description and perhaps this was done by the undertaker who helped her complete the form. When pressed, she had no recollection of what she told the undertaker to insert in this segment of the document.

41 Ms Sparke asked Miss Allen about the Boothby Street property. Miss Allen said Mr Watchorn wanted her to go there and initially it was on terms that she paid rent but some years later she stopped doing so. She could not inform the Court as to exactly when this was but she stopped paying rent because Mr Watchorn told her to do so.

42 When pressed as to the real nature of their relationship by Ms Sparke, she stated that Mr Watchorn "couldn't manage a relationship anyway, a de facto relationship". She was asked why she did not elaborate upon the subject of the sexual aspect of their relationship in her first affidavit and she indicated that the subject caused her embarrassment. She stated that Mr Watchorn had tried at one juncture to consummate sexual relations with her but he could not. It seems, although it is not entirely clear, that Mr Watchorn's attempt at sexual relations occurred before he moved into Boothby Street in 1996. It seems that after that attempt Mr Watchorn made no further attempts to initiate a sexual relationship.

43 Miss Allen stated in cross-examination that she stopped paying rent at Boothby Street because Mr Watchorn had so many of his possessions there and he was in a sense occupying the house. Miss Allen was paying half the rates, half the water and half the cost of food instead of paying rent. She also paid half of the insurance on the house. Mr Watchorn maintained his own separate bank account. They never had a joint account. As far as entertainment was concerned, on some occasions she paid for visits to the cinema and on others Mr Watchorn did. Miss Allen stated that she spent money on the house putting blinds up, renovating the bathroom and repairing the rear of the house where the mortar on the bricks had deteriorated.

44 Miss Allen was asked whether she was ever really independent of Mr Watchorn after they met and she said that she was not. She agreed that there was nothing stopping them getting married after Mrs Graham had departed the scene and she agreed that this was the case. She stated that Mr Watchorn did ask her later when he was developing Alzheimer's disease but by then it was too late. She agrees that she indicated to Norman and Norine Watchorn that she would not claim to be Mr Watchorn's de facto but says she did that because she did not like people prying into her life. Miss Allen said that by the expression she employed "they were together all the time" she considered that that made them de facto partners.

45 Miss Allen, asked about what approaches she had made to Norman Watchorn for any assistance required in regard to the maintenance on the Boothby Street property, responded that she would never make such an approach. Her reason for not doing so would appear to me to be based on her proud and private nature.

46 Towards the end of her evidence Miss Allen appeared to become somewhat confused and disorientated and gave unresponsive answers to questions put to her by Ms Sparke. Although she said that save for the ulcer on her leg she enjoys good health, I would doubt that she will be in a position to live unassisted in the Boothby Street property for any great length of time. While the responses given by her in cross-examination were not evasive as such, they were vague and on occasion unconvincing. Nonetheless, save for the unsatisfactory explanation given in regard to drawing single pensions after Mr Watchorn took up residence, I do not consider that she was prevaricating. One obvious inference which could be drawn from the continued receipt of single pensions is that neither she nor Mr Watchorn regarded himself or herself as being in a domestic relationship.

47 When asked in re-examination what living as a couple meant to her, she stated that she did not know really but that "they were getting up at about the same time, having breakfast together, going shopping together, taking the dogs for a walk, having lunch together, having dinner together and watching television together." Asked as to why they kept separate bank accounts, she stated that she never thought of an alternative in that regard.

48 In her affidavit, Maree Rickard confirms Miss Allen's affidavit of 7 August 2008. Ms Rickard, as has been observed above, is a niece of Miss Allen. She first met Mr Watchorn in the 1960s and over the next 40 years whenever she saw one of them it was usually along with the other. She was involved with the medical needs of both of them and she saw them on a regular basis. She assisted Miss Allen in her care for Mr Watchorn as his health deteriorated in the last several years of his life. She says that they attended nearly all family functions on Miss Allen's side of the family together. Christmases were always spent first at Ms Rickard's home and then later at her aunt's home or at one of her children's homes. Mr Watchorn took her mother, Ellen McDonald, who has since died, for walks in her wheelchair regularly, sometimes weekly. She says that when her children were young they did not have the support of a father and she had the sole responsibility of caring for them. Mr Watchorn, along with others in the family, would take turns to look after the children while she was at work.

49 In her affidavit, Antonietta Karuc deposes that she was a long-term friend and neighbour to Mr Watchorn and Miss Allen. She moved to 9 Boothby Street, Northcote in 1967. She separated from her husband in 1993 and she continued to live at that address until 2001 after which she moved to the Glenroy. She first got to know Mr Watchorn and Miss Allen in 1971 after the property was purchased and Miss Allen moved in. She became close friends with them. Mr Watchorn would do jobs around the house for her and she and Miss Allen would see each other every day and have tea. As a couple they would take her out on social visits. Miss Karuc says that she can speak English well but her reading of English is not very good. For that reason, she has had read to her various identified paragraphs of Miss Allen's affidavit of 7 August 2008. She says that the public aspects of the relationship between Mr Watchorn and Miss Allen described in those paragraphs and the events deposed to are true and correct to the best of her observation. She remained in contact with them when she moved to Glenroy in 2001 and remains in touch with Miss Allen to this day.

50 Raye Bayley moved into No. 5 Boothby St, Northcote in 1998. She describes Miss Allen and Mr Watchorn as a "lovely couple". She says that whenever they went out they were nearly always together. They would do their shopping together just about every Friday. She stated that Miss Allen just about did everything for Mr Watchorn and can remember wondering whether he did anything for himself. She remembers one occasion on a Sunday when she was talking to Miss Allen and she had to excuse herself because as she said, "Sam would be expecting his Sunday lunch".

51 Like the other deponents, Miss Bayley confirms the matters in Miss Allen's affidavit of 7 August 2008 in regard to what are described as the public aspects of the relationship. She states that she had assumed that Mr Watchorn and Miss Allen were married and it came as a surprise to her that they were not. In all outward respects she says they were a couple committed to each other.

52 Julie Adam is a Minister of the Churches of Christ and became Minister at the Basting Street, Northcote church in 2001. When she took up that position, Mr Watchorn and Miss Allen were members of the church and apparently had been for some time. Reverend Adam says that it is to her recollection that they attended church together regularly, together and as a couple. She visited them at their home at Boothby Street and they were always together. She says that their dogs were their lives.

53 Reverend Adam states that as Mr Watchorn's physical condition deteriorated it was Miss Allen who provided all the care for him. She describes that in the last period of Mr Watchorn's life, Miss Allen had some medical issues of her own at which time she was assisted by her niece, Ms Rickard. She says that whenever she visited Mr Watchorn at the care facility Miss Allen was also there, and when he passed away, it was Miss Allen who organised his funeral. Miss Allen was part of the officiating party. She agrees with the matters referred to in Miss Allen's affidavit of 7 August 2008 in relation to the public aspects of the relationship between them.

54 Alan Huntley is a nephew of Miss Allen. He first met Mr Watchorn in the 1960s and he has known Miss Allen all his life. He says that over the course of the next four decades whenever he saw one of them it was usually along with the other. He confirms that they attended nearly all significant family occasions on Miss Allen's side of the family together. Christmases were apparently always first spent at Ms Rickard's home and then later at the home of his mother, Lilian Huntley, or at one of her children's homes. Again he confirms the matters referred to in Miss Allen's affidavit as to the public aspects of the relationship between them.

55 None of the deponents to the affidavits filed on behalf of the plaintiffs were cross-examined.**

**56 Norman Watchorn, in his affidavit of 10 September 2008, does not take issue with much of Miss Allen's evidence. Norman Watchorn considers that Mr Watchorn took account of his obligation to Miss Allen in both of the wills that he made and obtained professional advice in relation to his last will. He says that while he acknowledges that Miss Allen cared for Mr Watchorn during the period of his illness, both he and his wife assisted Mr Watchorn when Miss Allen was away on holidays or in hospital. Other mutual friends did the same. Norman Watchorn states that his uncle clearly acknowledged that he had an obligation to provide for Miss Allen and that he did so and made proper and adequate provision for her.

57 In his affidavit of 21 October 2010, Norman Watchorn deposes that over the years he had the opportunity to observe Mr Watchorn and his personality on his many visits. Norman Watchorn describes Mr Watchorn as a "softie" who was of a kindly disposition and readily provided assistance. He considers that Miss Allen and Mr Watchorn were friends or companions rather than partners. He used to visit them once a month or so and have a cup of tea and he had the opportunity of observing them together. He states that they were not affectionate with each other and did not speak in ways which would indicate that they were a couple. He says that he once recalled Miss Allen saying to him that she would never contend that she was a de facto partner. He states that Mr Watchorn told her that Miss Allen paid the bills in lieu of paying rent. Mr Watchorn used to refer to her as a "friend". He said that there was nothing preventing them from formalising their relationship after Mr Watchorn moved into Boothby Street. Norman Watchorn says that since Mr Watchorn's death he has not received any complaints or demands from her for repairs, costs, expenses or any other problem relating to the Boothby Street house.

58 Norman Watchorn gave brief oral evidence-in-chief and was cross-examined. He confirmed that for his part he was content for Miss Allen to continue to have an arrangement where she was able to live in the Boothby Street house and be able to use the proceeds of the sale of the house or obtain an interest-free loan from the estate to provide alternative accommodation such as a nursing home. This would include provision of a bond for nursing home accommodation and some cash for her.

59 Norman Watchorn described his visits to Mr Watchorn and Miss Allen in Boothby Street. He stated that he thought he got on very well with both of them. In particular, he says that he got on extremely well with Mr Watchorn from the time that he came to live with Norman Watchorn's family after they had moved to England from Ireland, which he thought was around 1948. He stated that he was surprised by Miss Allen's evidence that she would be uncomfortable about contacting him in relation to matters regarding the Boothby Street property.

60 Norman Watchorn confirmed his affidavit evidence in relation to Miss Allen where she is alleged to have stated that she would not claim to be Mr Watchorn's de facto partner. He states that the group would have been in the kitchen talking and having a cup of tea.

61 In cross-examination by Ms McOmish, he agreed that when he came back to Australia in 1988, Mr Watchorn gave him $10,000 to establish himself. These funds were used to assist in meeting a shortfall required to obtain a mortgage. Cross-examined about the level of care Miss Allen gave Mr Watchorn, he described it as something in the nature of a brother-sister relationship. He stated they were not in a de facto relationship, they just looked after each other and helped the other. He was asked about the photographs that were exhibited. Amongst those is a portrait taken when Norman Watchorn's daughter made her debut. Ms McOmish suggested that it was an intimate family portrait but Norman Watchorn persisted in saying that she was no more than a friend.

62 Norman Watchorn was then cross-examined as to his personal financial situation. He stated that when his mother Phyllis died in 2003 she left her house in Rosebud to him. This house, together with Norman Watchorn's house at the time, was sold and they purchased a new home. He states that he has savings of $200,000.

63 I consider that Norman Watchorn was a truthful and credible witness. He gave his evidence confidently and he was measured and considered. He did not appear to have any antipathy to Miss Allen and seemed to have her interests at heart. Despite the fact that, in addition to being an executor of the estate, he was also a remainderman and a residuary beneficiary, he was not partisan in giving his evidence. It seemed clear that he was on close and affectionate terms with his uncle and I accept his evidence that to the extent he was able, he contributed to his care and welfare in the last years of his life.

64 Norman Watchorn stated that he had been in contact with the five other residuary beneficiaries and remaindermen in Ireland. His testimony in that regard was admitted without objection. I shall detail each of their situations in turn.

65 Raymond Watchorn is 53 years old and is employed as a truck driver. He states that the company with which he is employed is currently contemplating retrenching its employees and replacing them with contractors. Raymond Watchorn has not accepted any voluntary redundancy as he could not survive on a pension and the redundancy payment. He is married, his wife does not work and he has two sons aged 22 and 19 who are both in fulltime education. The two children will be studying for the next three to five years and are both solely dependent upon him. He indicates that the current economic climate in Ireland is not bright and that any future employment for his children looks bleak.

66 Edwin Watchorn is a mechanic and the sole income earner for his family. He is married and has three children, two of whom are in fulltime education. One is aged 17 and in his final year of secondary school and the other is aged 22 and studying chemistry in third year of university. His oldest son is 26 years of age and has completed a Masters Degree in electrical engineering two years ago. However, because of the economic conditions prevailing in Ireland, he has not been able to obtain employment. Edwin Watchorn states that unemployment in Ireland is currently 13.8% and increasing. His employer is currently struggling for business and has been threatened with closure. In order to keep his employment Edwin Watchorn has taken wage reductions; he fears that if he loses his job he would find it very difficult to find another one as he is 53 years old and is recovering from cancer.

67 Avis Boyd is a niece of Mr Watchorn and is married to Alex Boyd who is a carpenter and joiner. She is approximately 40 years of age and her husband is the only income earner in the family. They have two dependent children aged two and five years and her husband has little job security as the building trade in Ireland is depressed. They live in a rural area and a motor vehicle is essential for transport but is costly to run. She is finding it difficult to make ends meet as the cost of living in rural areas has increased significantly.

68 Another of Mr Watchorn's nieces, Barbara Callis, is approximately 40 years of age and is married with three dependent children. They are aged 10, 14 and 18. They are respectively at the primary, secondary and tertiary stages of their education. Her husband is the only wage earner in the family and works in sales. The recession in Ireland is having a great impact on the day-to-day management of their limited financial resources, with her husband's conditions of employment under constant review with wage cuts being a distinct possibility. Interest rates are continuing to rise on the mortgage on their house.

69 Heather Fenton is also another niece. She is also approximately 40 years of age and is married with two young children aged 8½ and five years. The cost of living is rising for her all the time and she is concerned as to her family's future as they have a young family, a mortgage and her husband has limited job security.

70 Norman Watchorn is married and has retired from fulltime employment and has no dependent children at home. His home is valued at approximately $500,000 and is not subject to a mortgage. He owns two motor vehicles and is in receipt of the old age pension and lives off this and his savings which are presently $200,000.

71 In her affidavit of 21 October 2010, Norine Watchorn deposes that she is the wife of Norman Watchorn. She confirms the conversation referred to by Norman Watchorn in his affidavit whereby Miss Allen is alleged to have said to her words to the effect that she would "never claim to be Sam's de facto". She states that she often visited Mr Watchorn together with Norman Watchorn and on those visits she recalls Mr Watchorn referring to Elsie as a "friend". She did not see any affection between them or anything which would make them seem like a couple, rather, they seemed to be friends or companions.

72 In his affidavit of 7 October 2010, David Huntley, who is the first defendant, deposes to the financial position of the estate. He deposes that the house in Boothby Street is valued at $775,000. The estate has several bank accounts, respectively holding $55,112.76, $173,077.89 and the sum of $5,199.15, which is in the trust account of Grey and Grey Solicitors. The estate has non-specified debts and liabilities, including the unpaid portion of the legal costs of the proceeding, transaction costs including Titles Office fees and provision for capital gains tax and income tax on the estate funds income for the period until the estate is wound up.

73 I now turn to consider the discretionary factors which are prescribed by s 91(4)(e)-(p) of the Act.**

(i) Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship

**74 Miss Allen and Mr Watchorn met some time in the early to mid sixties. Miss Allen became a tenant of Mr Watchorn during that period. In 1971 Mr Watchorn purchased the Boothby Street property and Miss Allen took up residence there. Mr Watchorn moved some of his possessions into that property. Over time, it is clear to me that they became very close, although they were not sexually intimate. Miss Allen says that Mr Watchorn was physically unable to have a sexual relationship with her. Over a period of years, it would appear that they came to be emotionally dependent upon each other, although the evidence is that neither was demonstrably affectionate towards each other in the company of others. This is perhaps to be expected of people of their generation and it goes a long way to explaining Miss Allen's reticence in being forthcoming in relation to the issue of the absence of a sexual relationship. The relationship was certainly not that of a conventional domestic partnership. They maintained separate bank accounts and, for some expenses at least, each contributed one-half of the household's budget. They each continued to receive social security entitlements on the basis that they were not in a domestic relationship.

75 Of course the Victorian legislation does not require the establishment of a domestic relationship as such but rather, as I have said by reference to Harper J's decision in Schmidt v Watskins, referred to above, what is required is the establishment of a duty on Mr Watchorn's part to provide in his will for Miss Allen's proper maintenance and support. Something has sought to be made of the description in oral evidence and written documentation of Miss Allen as being a "friend" of Mr Watchorn but it seems clear to me that the relationship went a good deal further than friendship in the ordinary sense. They were very closely associated with each other for nearly 40 years, and from 1996 were living under the same roof at Boothby Street. Before that, from the time that Mr Watchorn retired in 1985, the uncontradicted evidence is that he was at Boothby Street from morning until night when he would return to his residence with Mr and Mrs Graham. From what is known of Mrs Graham, she was something of a strong personality who prevailed over Mr Watchorn. From all accounts, Mr Watchorn was something of an old-fashioned gentleman and he conformed to Mrs Graham's dictates, she being something of a surrogate mother.

76 It is of some significance that as far back as May 1992 Mr Watchorn made a will in very similar terms to his last will which provided that Miss Allen had a right of residence at Boothby Street for as long as she wished.

77 Various people have deposed that Miss Allen and Mr Watchorn appeared socially as a couple. The evidence indicates that they were invited together to numerous significant family events such as weddings and the like. She apparently cooked all his meals over a significant number of years and attended to what one of the older cases[3] refers to as the "wifely" duties around the house while he performed the counterpart role of the conventional man about the house. The evidence is they attended church together very regularly, shopped together and otherwise went about their day-to-day lives as a conventional couple would.

78 Moreover, in his will, Mr Watchorn effectively recognised his duty to make provision for Miss Allen.[4]

79 In my view, the evidence demonstrates that they had a long standing and close relationship, in which they relied on each other for emotional support and were regarded at least by members of Miss Allen's family (and probably Mr Watchorn's) and members of the community as a couple. As such, save for the absence of a sexual element, that relationship had close similarities to that which was considered by the Court of Appeal in Forsythe v Sinclair[5] to give rise to a responsibility by a person in Mr Watchorn's position to make provision. At [107] Redlich JA, in agreeing that the appeal should be dismissed observed:**

The trial judge found that the plaintiff and the testator had a long-standing intimate and caring relationship. They had deep affection for each other. They shared on a daily basis, nearly all the significant moments of their lives .The plaintiff gave the testator some level of care and support. Their 'emotional and spiritual bonds were very strong'. They had made a commitment to living together in the future.

**80 Ms McOmish made reference to s 35(2) of the Relationship Act 2008 which lists criteria for assessing whether or not a domestic relationship existed. Those criteria do not of course extend to consideration of the issue of duty to make provision under Part IV of the Act. However, when one reviews the criteria set out in that sub-section they appear to be drawn from consideration of the issue in case law and to that degree serve as something of a template. I emphasise however that I have not applied that criteria in my assessment of the issue of Mr Watchorn to make further provision.

81 Miss Allen's depiction of their relationship is somewhat at odds with that of Norman Watchorn and his wife, Norine. As I have said, I consider that Norman Watchorn has given his evidence honestly but Miss Allen, who actually lived the relationship, is in a better position to describe it. A number of Miss Allen's witnesses deposed that Miss Allen and Mr Watchorn were constantly together and this has not been contradicted. Those people saw them together more often than Norman and Norine Watchorn. I am satisfied that in their own way, despite the absence of demonstrative physical affection, which was probably a function of their respective personalities and the mores of the generation in which they were raised, they had a love for each other. There was a degree of financial dependency by Miss Allen on Mr Watchorn despite the maintenance of separate banking accounts. He in turn depended on her it seems for company and support. The correspondence exhibited from Mr Watchorn's relations in Ireland and Canada reveal that they regarded her as more than just a friend. Such material to a large degree allays what reservations I have in exercising the necessary caution when assessing Miss Allen's own evidence, which could not, of course, be challenged by Mr Watchorn. The deponents to the affidavits filed on behalf of Miss Allen gave plausible evidence and were not cross-examined. Those persons were disinterested in the outcome of Miss Allen's application. In my view, the relationship had the "particular quality" required in Harper J's formulation in Schmidt v Watkins, referred to above.**

(ii) Any obligations or responsibilities of the deceased to the applicant and any other applicant and the beneficiaries of the estate

82 I consider for the reasons that I have canvassed above that Mr Watchorn had a responsibility to provide for Miss Allen and this is indeed confirmed by the terms of his will and the previous will he made in 1992. Ms McOmish, counsel for Miss Allen contended that on the other hand there was no moral obligation for Mr Watchorn to provide for the beneficiaries under the will who are nephews and nieces and all of whom, save for Norman Watchorn, live in Ireland. While I consider that Mr Watchorn had a primary moral responsibility to provide for Miss Allen, I do not consider that Mr Watchorn's right of testamentary freedom should be cast away by reason of the fact that the beneficiaries are not his direct issue or that they live in Ireland. I have to consider the position of those beneficiaries as at the date of Mr Watchorn's death. It is obvious from the documentation exhibited by Miss Allen that Mr Watchorn fondly regarded his nieces and nephews and, despite the fact that they lived in Ireland, contact with them was maintained. I consider that by reason of the relatively large size of the estate compared to some that adequate provision can be made for Miss Allen without substantial intrusion into Mr Watchorn's freedom of testamentary disposition to make provision for those beneficiaries. While Norman Watchorn may live in relatively comfortable circumstances, the other beneficiaries still remaining in Ireland are presently enduring a harsh recession in that country and there is presently no prospect of improvement in the immediate future. All are responsible for rearing families with one breadwinner and each appears to be at risk of being made redundant at any time.

(iii) The size and nature of the estate of the deceased person and the charges and liabilities to which the estate is subject

83 As detailed above, the Boothby Street property is valued at $775,000 and the estate has approximately $238,000 in cash. Legal costs of this application are presently approximately $130,000 for both parties' legal costs.

(iv) The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and the foreseeable future

84 Miss Allen receives a social security payment of $690 per fortnight, a VicSuper lifetime pension of $170 per fortnight and an MLC pension payment of $110 per month. She has savings of approximately $14,000 and an investment with Challenger of approximately $20,000. She states that she is finding it hard to manage financially and that there are things she would like that she cannot afford although there was not a great deal of elaboration by her on what those items may be. Norman Watchorn is relatively well off. As I have said, he owns a home worth approximately $500,000 which is mortgage free, he receives on an old age pension and has savings of $200,000. I have already made detailed reference to the position of the beneficiaries who remain in Ireland. None of them are travelling very well in the current economic conditions prevailing in that country.

(v) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

**85 Miss Allen requires treatment for an ulcer as a result of a staph infection contracted when she had surgery in 2006. She otherwise claims to be in good health but my observations of her in the witness box were that she was quite frail and as I have said, towards the end of her testimony in the proceeding she seemed quite confused, fatigued and disoriented. Despite her statement to the effect that she could live independently for some considerable time to come, I have serious misgivings about how realistic she is being about that. She appears quite frail, the ulcer she suffers from is said to cause anaemia, her hearing is impaired and she walks with the aid of a stick.

86 None of the beneficiaries suffer from a mental or intellectual disability, however Edwin Watchorn is presently recovering from cancer.**

(vii) Any contribution (not for adequate consideration) of the applicant of the building up of the estate or to the welfare of the deceased or the family of the deceased

88 Miss Allen contributed to the maintenance of the Boothby Street property and apparently carried out the housework for it. Of course she had the benefit of the roof over her head in return. She paid for certain improvements and repairs to the property which are referred to above. Miss Allen indicated that at one juncture she wished to purchase a home with her niece but desisted from doing so when Mr Watchorn intervened and stopped her embarking on that course. Over many years she cooked Mr Watchorn's meals and was apparently his constant companion. I am satisfied that she undertook the primary responsibility for Mr Watchorn's welfare when he was diagnosed with Alzheimer's disease.

(viii) Any benefits previously given by the deceased person to any applicant or to any beneficiary

**89 Mr Watchorn provided Miss Allen with accommodation at Boothby Street. She did not pay any rent after the first two years or so of occupying that premises although she initially did so. She did however, as I have detailed, contribute to the expenses of that household. There was a degree of financial reliance by her on Mr Watchorn. Norman Watchorn was given $10,000 by Mr Watchorn when he returned to Australia from Ireland. This payment was in the nature of seed capital to enable Norman Watchorn to establish himself in this country. This is so long ago in the past that I regard it as of quite peripheral relevance to this application. There is no evidence that any of the other beneficiaries received any benefits from Mr Watchorn during his life.

(ix) Whether the applicant was being maintained by the deceased before that person's death either wholly or partly and where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility

90 I consider that this issue has already been dealt with adequately above. It is clear that over time Miss Allen became economically reliant on Mr Watchorn for her accommodation and a good part of her daily living expenses. With his agreement, she was living at Boothby Street and was not obliged to pay rent.**

(x) Any liability of any other person to maintain the applicant

91 No other person has a responsibility to maintain Miss Allen.

(xi) The character and conduct of the applicant or any other person

92 Miss Sparke cross-examined Miss Allen on the issue of drawing a single person's social security benefit. This is inconsistent with the position she now adopts in this proceeding of being the domestic partner of Mr Watchorn. The explanation she gave in that regard was unsatisfactory. It could be interpreted either as evidence of dishonest conduct in drawing social security benefits to which she was not entitled or, alternatively, maintaining for the purposes of this application that she was Mr Watchorn's domestic partner when, during his lifetime they did not divulge that relationship, which would have been to their financial determinant, to the relevant government agency. This is a negative factor. There are no aspersions cast at all on the character of the residuary beneficiaries.

(xii) Any other matter the Court considers relevant

93 In McKenzie v Topp, Nettle J observed at [46] (citation omitted):

Authority suggests that the sorts of factors to which regard might be had include the ability of the plaintiff to meet his financial responsibilities, the amount which is necessary for maintenance and survival, the size of the estate and of competing claims upon the testatrix, the standard of living of the plaintiff during the deceased's lifetime, the extent of contact between the plaintiff and the testatrix, the manner in which the plaintiff conducted himself in relation to the testatrix during her life, and the testatrix' wishes, in the sense of statements made by the deceased during her life as to provision that she has or has not made for the plaintiff.

**94 Several of these elements have been canvassed above. Of those that have not, my consideration is as follows. Miss Allen's ability to meet her financial responsibilities is above subsistence level but she has little funds for what the High Court in Blore v Lange described as "cheese and jam".[6] As to the standard of living of Miss Allen during Mr Watchorn's lifetime, it seems they lived a relatively modest and austere lifestyle. Miss Allen enjoyed some overseas travel and she did not want for basic material comforts.

95 Under the terms of Mr Watchorn's will, it was his wish to make provision for his nieces and nephews as residuary beneficiaries and, so far as it is possible, I consider that this wish should be honoured. The case law indicates that my task in considering this application is a three-stage one. The first stage is a consideration of whether Mr Watchorn was under a duty to make provision for Miss Allen. I consider for the reasons expressed above that he was. The next stage of the process involves a consideration of whether under the terms of Mr Watchorn's will the provision which was made is what a wise and just testator would have provided. Miss Allen contends that the provision under the will was not adequate. As the case evolved at trial, I sense that Miss Allen and her legal representatives retreated from the position that she was entitled to the whole of Mr Watchorn's estate but the position was maintained that the absence of security and flexibility arising from the terms of her occupancy of Boothby Street amounted to inadequate provision.

96 I agree with that submission. I do not however consider that in order to redress this requires Miss Allen to be given the fee simple interest in Boothby Street. Her needs in respect of her accommodation can be met adequately by a life interest in that property with provision that, in the event she was no longer willing or able to continue living there and required alternative accommodation, for the sale of Boothby Street and the securing of appropriate accommodation. Norman Watchorn was, for his part, content for this to occur.

97 If Miss Allen was no longer to live at Boothby St, the will provided that she receive the income from the capital sum realized on the sale of the property. This is at odds with clause 4.05, which provides that the trustees are not "able to sell the abovementioned property until after the death of Elsie Myrtle Allen, whether she be domiciled in the property or otherwise." I consider that the position in regard to her accommodation in the event she becomes unable to continue to live at Boothby Street should be made secure by provision to her of a life interest in Boothby Street and, if or when she is unable to continue being there, that the property be sold and that appropriate accommodation be obtained for her.

98 Miss Allen has modest savings and no other significant assets. I consider that the will should have made provision for a legacy or "nest egg" to meet contingencies and I consider that further provision should be made for her in this regard by providing for a legacy of $40,000. In addition, a fund of $20,000 should be set aside from the residue to meet the recurring costs of the Boothby street property such as rates, taxes, insurance and general maintenance.

99 At the conclusion of the hearing of this matter, I invited the parties to submit various forms of proposed orders which reflected a number of alternative outcomes for this application. The relief I intend to order has in general terms been the subject of one of those sets of proposed orders and I will hear the parties as to the exact form of the orders to be made which reflects my reasons.

[1] McKenzie v Topp [2004] VSC 90 at [15]; Bosch v Perpetual Trustee Co Limited [1938] AC 463 at 478; Grey v Harrison [1997] VR 359 at 365; Collicoat v MacMillan [1999] 3 VR 803 at 815.

[2] [2002] VSC 273.

[3] Wheatley v Wheatley [1950] 1 KB 39 at 43.

[4] See Norton v Costigan [2005] VSC 208 at [9].

[5] [2010] VSCA 147.

[6] [1960] HCA 73; (1960) 104 CLR 124 at 135.