Plaintiff v Defendants

For Peter Morris and Amy Summer Morris (by her next friend Margaret Bonnar)

1 The plaintiff ('Mrs Morris') is the widow of Maxwell Vernon Morris ('the deceased'). Pursuant to s 91 of the Administration and Probate Act 1958 ('the Act'), Mrs Morris claims the deceased had a responsibility to make further provision for her.

2 The deceased died on 27 February 2010, leaving a will dated 8 April 2009 ('the will'). Probate of the deceased's will was granted to the defendants on 15 September 2010. At the date of his death, the deceased was survived by:

(b) his three adult children of his first marriage:

(i) Mr Peter Morris ('Mr Morris'), his adult son and the first plaintiff in a separate proceeding seeking further provision from the estate ('Mr Morris' Part IV claim'); and

(ii) Mrs Susan Linda Smoel and Mrs Susan Carolyn Wooster, his adult daughters and the defendants in this proceeding; and

(c) His grandchildren, including his granddaughter Ms Amy-Summer Morris ('Amy), who is the second plaintiff in Mr Morris' Part IV claim.

3 The trial of this proceeding was heard together with Mr Morris' Part IV claim, and the evidence and submissions in both trials took place on 23 April 2013 and 29 April 2013, with a further hearing on 11 November 2013. My reasons for judgment in Mr Morris' Part IV claim are set out in Peter Morris v Smoel.[1]

The Estimated Value of the Deceased's Estate at Trial

4 The trial was conducted on the basis that the estimated value of the estate at the date of hearing was greater than $200 000 but less than $300 000, in circumstances where legal costs for the estate had been assessed up to 28 March 2013, and did not cover the further costs involved in three hearings and a mediation.

5 An estimate of the up-to-date value of the estate could not be provided until the determination of another proceeding arising from the death of the deceased ('the superannuation proceeding'). This was a claim by the defendants in their personal capacity against Mrs Morris, her son Mr Nathan Ashman ('Mr Ashman') and Upper Swan Nominees Pty Ltd in its personal capacity and as trustee of the Morris Family Superannuation Fund. In that proceeding, the defendants sought judgment and costs in respect of a binding death nomination signed by the deceased in their favour in respect of certain funds in the Morris Family Superannuation Fund.

6 The Court was informed that Mrs Morris died on 24 September 2013. On 1 November 2013, judgment was delivered in the superannuation proceeding in favour of the defendants for the judgment debt, interest and costs. To the extent that the defendants are unable to recover the amount due to them from the Morris Family Superannuation Fund, the shortfall was ordered to be paid by the estate of Mrs Morris.[2] For the reasons set out below, the shortfall will not be recovered by the defendants.

7 By consent orders made on 11 November 2013 in this proceeding, Mr Ashman, an executor appointed by Mrs Morris' will, now represents the estate of Mrs Morris. Leave was granted to the parties to re-open the evidence in this proceeding, limited to the filing of further affidavits updating their financial positions. By affidavit sworn 15 November 2013, Mr Ashman deposed that the estate of Mrs Morris held the sum of $1414.50 in a bank account and had liabilities of $101 316.26 to her previous solicitors, K&L Gates.[3] In his affidavit, Mr Ashman deposed that, in the week commencing 18 November 2013, he would make an application for the administration of the estate.[4]

8 At a hearing on 11 November 2013, counsel for the estate of Mrs Morris informed the Court that her estate wished to continue with her Part IV claim. The authorities provide that, where an applicant dies after proceedings are issued but before those proceedings are determined, the cause of action survives the death of the applicant, but is limited to the provision that would have been appropriate up to the applicant's death.[5] In respect of the bankruptcy of her estate, any amount awarded to the estate of Mrs Morris vests in the trustee of her bankrupt estate. If there is any surplus once her debts and costs have been paid, that surplus would be payable to her estate.[6]

The Defendants' Estimated Value of the Deceased's Estate at Judgment

9 Pursuant to leave granted by orders made 11 November 2013, the second defendant filed an affidavit sworn 18 November 2013, providing a current estimate of the assets and liabilities of the estate, with the result being that the net assets of the estate were now $194 346.55.

10 This estimate excludes an estimate of contingent assets of approximately $486 386 due to the estate from the Morris Family Trust and amounts owed to the estate by Mrs Morris. The major component of his amount is the result of a further proceeding issued by Petunia Corporation Pty Ltd (in its capacity as trustee of the Morris Family Trust) against the executors of the estate of the deceased ('the Morris Family Trust proceeding').[7] In that proceeding, Zammit AsJ gave judgment on 10 April 2013 in favour of the executors against Petunia Corporation Pty Ltd for a sum of $276 532 plus interest and costs now amounting to $445 202. As the Morris Family Trust is insolvent, owing well in excess of $900 000, it is unlikely that the judgment can be enforced.

11 The balance of the contingent amount is a reference to Mrs Morris' liability to the estate of the deceased for costs in the sum of $41 000, pursuant to orders made in another proceeding issued by the executors against Mrs Morris seeking orders for the sale of estate assets being a property in Rye and a Porsche Boxster motor vehicle ('the Rye Sale proceeding'). Orders were made for the sale of these assets. The orders were the subject of an appeal by Mrs Morris, which was dismissed with costs.[8] The quantum of costs was subsequently agreed to be $41 000, payment of which was stayed until seven days after delivery of judgment in this proceeding. Mrs Morris also owes Mr Morris an agreed amount for costs of $19 000 in the Rye Sale proceeding, payment of which was also stayed pending the outcome of this proceeding.

12 In addition, the defendants will have incurred further costs in this proceeding and in Mr Morris' Part IV claim, part but not all of which have been included in the updated estimate.

13 I now turn to the substance of Mrs Morris' proceeding against the estate of the deceased. In respect of Mrs Morris, pursuant to his will, the deceased:

(a) left a life interest to Mrs Morris in the matrimonial home at 21 Cass Avenue, Croydon ('the Croydon property') and a holiday home at 82 Dunham Street, Rye ('the Rye property'), the contents of those homes, and a Mercedes Benz CLS 500 motor vehicle;

(b) directed that the income of the residuary estate be used to pay the expenses and outgoings for the two properties and the Mercedes Benz motor vehicle;

(c) directed that his Porsche Boxster motor vehicle be sold, and the proceeds be used to purchase a C Class Share in National Golf Holdings Limited for Mrs Morris;

(d) provided under cl 7(b) that the defendants, as executors of his estate:

should use their best endeavours to pay a reasonable living allowance to my wife PATRICIA MOLLY MORRIS from the proceeds of the Morris Family Trust and my superannuation fund upon my death, and I FURTHER DIRECT THAT my said daughters should take into account the amount to be provided to my said wife from my superannuation fund and any other income she may be entitled to when determining an adequate living allowance to be paid to my said wife;

Save for clause 3 thereof, I have made no provision in this my Will for my wife the said PATRICIA MOLLY MORRIS. The reasons that I have not made greater provision for PATRICIA MOLLY MORRIS is that I believe I have made adequate provision for her through directing that my said daughters in their capacity as Directors of the Trustee of the Morris Family Trust pay to my wife a reasonable living allowance from the Morris Family Trust and my superannuation, in addition to the pension which my wife is paid from the Morris Family Superannuation Fund to which I contributed a large amount of the balance.

(a) left an A Class Share in National Golf Holdings Limited to the second defendant; and

(b) left the residuary estate to the defendants as tenants in common in equal shares subject to an adjustment for the value of the share left to the second defendant; and

have been extremely supportive of me during times of past difficulty.

In those circumstances, I consider that greater provision for my said daughters should be made as opposed to any other children of mine or my wife.

15 Peter Morris was left a legacy of $10 000. In clause 13(b), the deceased explained:

I have not made greater provision in this my Will for my son PETER MORRIS for the following reasons:

(i) He has not for some time displayed the proper and expected behaviour of a child towards his father; and

(ii) I have provided him with adequate financial support throughout his lifetime, including loans that I made to him which have not been repaid.

16 The deceased's estate, valued at the date of death by the defendants at $1 802 182.80, comprised the following assets and liabilities:

(a) the Croydon property (valued at $445 000) and the Rye property (valued at $307 650);

(b) A loan account due to the estate from the Morris Family Trust estimated at $791 338;

(c) A further loan due to the estate from the Morris Family Trust of $61 803.28;

(f) 1106 shares with the Commonwealth Bank of Australia;

(g) 5 shares in Lucktress Pty Ltd, the trustee company of the Morris Family Trust;

17 Mrs Morris relied on three affidavits sworn by her. The defendants relied on an affidavit sworn by the second defendant sworn 18 August 2011. In addition, the second defendant filed an affidavit sworn 22 April 2013 setting out the then financial assets and liabilities of the estate. Mr Morris filed affidavits in his Part IV claim and some of the evidence in his affidavits was relevant to this proceeding. At the trial, only Mrs Morris and Mr Morris were cross-examined.

18 Mrs Morris was born on 6 June 1941. At the date of her death, she was aged 72 years. She left school at the age of 14 and took up a dressmaking position in Western Australia. After two years, she began working in a drapery store. At the age of 18, she joined the Royal Australian Air Force, working as a tailoress at Point Cook in Victoria for eight years. Mrs Morris did not have any formal training for those positions.

19 Mrs Morris and the deceased met in 1990 and were married in December 1991. At that time the deceased was an accountant and worked in a senior position with an insurance company. After her marriage, at the insistence of the deceased, Mrs Morris gave up her work as a caterer. She brought around $90 000 to the marriage and pooled those funds with those of the deceased. The marriage was a second marriage for both of them. Patricia has two adult children from her first marriage. The deceased had three adult children from his first marriage, the defendants and Mr Morris.

20 A week before the marriage, the deceased was diagnosed with prostate cancer. In January 1992, the deceased underwent an operation for his cancer that left him impotent, meaning the couple were unable to have sex for almost the whole of their marriage. Notwithstanding, Mrs Morris said that their relationship was a loving and caring relationship and that they were compatible and happy.

21 The deceased told Mrs Morris that she did not have to work. He provided her with a house, paid for her living expenses, gave her the use of a car and paid for her holidays. The deceased managed and controlled their household finances, without telling Mrs Morris many of the details. She was entirely dependent on the deceased for her financial welfare. In 1992, the deceased told Mrs Morris that she no longer needed her own car, so she gave it to one of her sons. Mrs Morris was not allowed to change anything about their matrimonial home, the Croydon property or their holiday home, the Rye property.

22 The deceased retired from full-time work in the middle of 1992, but worked as a part-time company secretary from home until the company closed its office. After the deceased ceased working, they enjoyed a relaxed lifestyle, doing things such as shopping, having coffee and meals together, maintaining the Croydon and the Rye properties, gardening, staying at the Rye property when the deceased played golf (which occurred approximately every three weeks, for a period of five days) and driving in the Porsche Boxster motor car.

23 In 1994, the deceased was diagnosed with secondary prostate cancer and told that he had four to six years to live, although happily he ultimately lived far longer than that. The deceased, as his condition worsened, searched for alternative treatments for his cancer. By 2005, his health was in a serious decline, so they travelled to Mexico for the deceased to attend an 'alternative' clinic. The treatment was not effective. The deceased then underwent further treatment in Australia but his condition worsened and his health declined even further. In late 2007, the deceased started chemotherapy treatment, finishing in May 2008. His health seemed to improve for a time but by 2009 his health deteriorated again. Eventually he went into palliative and nursing home care, coming home only for a short amount of time before his death in February 2010. Mrs Morris supported and cared for the deceased throughout his long illness.

24 Mrs Morris said that she remained loyal and supportive to the deceased throughout their marriage, including during his long and severe illness and incapacitation. The second plaintiff claimed in her affidavit that the relationship between the deceased and Mrs Morris deteriorated in the last six or seven years of the deceased's life, that she had separated from the deceased for a period around Christmas of 2007 and that she 'effectively jumped for joy' when the deceased died. Mrs Morris denied these claims. She said that, in the last 42 weeks of his life, the deceased spent 26 weeks in hospital or palliative care and, as much as she could, she cared for the deceased so that he was able to live an almost normal life, including for the brief periods when he was at home not long before he died. She ensured the deceased was comfortable and had companionship in what were undoubtedly very difficult circumstances.

25 The deceased always assured Mrs Morris that she would be looked after following his death and was told by him that she would receive a wage or annuity of between $52 000 and $80 000.

26 At the time of the trial in April 2013, Mrs Morris described her health as good, with just the usual complaints associated with her age, although she described herself as emotionally distressed by the way the defendants had treated her since the deceased's death. After the hearing of the evidence and submissions, Mrs Morris' health deteriorated suddenly, resulting in her death in September 2013.

27 As at 22 April 2013, Mrs Morris deposed that her assets were as follows:

(a) an interest in the Morris Family Superannuation Fund, worth approximately $500 000;

(b) a half-share in a property in Wantirna worth approximately $170 000. The other half-share in the Wantirna property is owned by her first husband. The house does not have a tenant, and is in need of significant repairs and renovations;

(c) a deposit in an ANZ Bank Account of $62 395.30;

(d) a deposit in a Goldman Sachs account of $17 466.99;

28 Mrs Morris' estimated that her monthly outgoings as at April 2013 were approximately $3022, comprising:

(a) rates, insurance and property related expenses of $700 per month;

(b) food, groceries and household needs of $1500 per month;

29 Since Mrs Morris swore an affidavit setting out her financial position, it has now been determined that the Morris Family Trust is insolvent, and that her interest in the Morris Superannuation Fund will be subsumed by the judgment in the superannuation proceeding.[9]

30 In an application for provision made under s 91 of the Act, the Court must decide:

(a) at the date of his death, whether the deceased had a responsibility to make provision for the maintenance and support of an applicant;

(b) if so, whether the deceased's will made adequate provision for an applicant's proper maintenance and support; and

(c) if not, the amount of provision that should be ordered.

31 In considering these questions, the Court must have regard to the matters set out in ss 91(4)(e)-(p) of the Act, which I have outlined below at [47]-[68].

32 The basis of the Court's jurisdiction is responsibility, traditionally described as the enforcement of moral obligations.[10] The question is what a wise and just testator would have thought it his moral duty to make for the plaintiff,[11] as expressed by Lord Romer in Bosch v Perpetual Trustee Co Ltd:

Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father. This no doubt is what the learned judge meant by a just, but not a loving, husband or father. As was truly said by Salmond J in In re Allen (Deceased), Allen v Manchester:

The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the 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 interests of his widow and children had he been fully aware of all the relevant circumstances.[12]

33 In Collicoat v McMillan, Ormiston J explained what is meant by the idea of a 'moral claim' so frequently referred to in the jurisprudence on this and similar legislative provisions:

In my opinion the expression 'moral claim' has always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of persons within the class specified. That 'moral obligation', as described in Re Allen and many later cases, reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.[13]

34 It involves a broad evaluative judgment, made with respect to a capable testator's judgment as to who should benefit from the estate.[14] A balance must be struck between, on the one hand, the freedom our society accords to a person to do as he or she pleases with his or her own property, and on the other hand, the moral requirement that a testator consider those persons closest to him or her as being the first in the line of recipients of the estate. The Court should only interfere with the terms of a will if the testator has failed in his or her moral duty.[15] In Grey v Harrison Callaway JA stated:

it is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent.[16]

35 The plaintiff bears the onus of proving that the deceased had such a responsibility, on the balance of probabilities. In assessing the evidence, the Court must have regard to the seriousness of an allegation that the testator has abused his freedom of testation, and the difficulty of assessing the evidence in the inevitable circumstance that the Court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008.[17]

36 Whether the testator had a duty to provide further, and whether there is a failure to make adequate provision for the proper maintenance and support of an applicant, are determined by consideration of the facts and matters known to the deceased at the time of his or her death. A wise and just testator is deemed to be aware of the relevant circumstances prevailing at the time of death, but the testator will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of death.[18] Where an applicant's financial position was sound at the date of death but had worsened substantially at the date of trial, the time for assessing need is at the date of the trial.[19]

General Principles Applying to Claims by Second and Subsequent Wives

37 The circumstances of this case - a contest between the second wife of the deceased, and the deceased's children by another marriage - are not unusual. In assessing the 'moral claim', the Court is in the difficult position of balancing the recognised duties a husband has to his spouse, on the one hand, and the fact that the assets of the deceased that would be recognised as the family assets were accumulated in the large part prior to the second marriage.

38 In Montague v Montague, the deceased left a one-third share of the matrimonial home to his second wife, in circumstances where she had considerable assets of her own. Austin J held that:

there is no absolute obstacle to the Court taking into account the widow's separate assets in deciding whether the testator has made adequate provision for her security of accommodation, and in exercising its discretion to make or decline to make further provision for her out of the assets of the estate.[20]

39 His Honour however ultimately considered that the obligations of the deceased extended to ensuring that his widow had a roof over her head:

In my opinion, the plaintiff has established that the provision made in her favour by the deceased during his lifetime, when he gave her a one-third interest in the Residence, is inadequate for her proper maintenance and advancement in life. There is no claim that her income is insufficient to support her maintenance. The general principle in Luciano v Rosenblum is to the effect that the deceased should ensure that his widow is secure in her home. Here the deceased and his widow had lived together for 15 years, most of that time in the Residence. ... The deceased should have provided for the plaintiff security in her home, as well as sufficient income, and she was entitled to expect him to do so. He failed to ensure that she would have security in her home.[21]

40 Courts addressing this issue have consistently recognised the provision of a home as the overriding concern, variously awarding claimant wives the matrimonial home absolutely,[22] sufficient funds to purchase a suitable residence,[23] or a life interest.[24] Which of these is appropriate, or indeed whether there is any obligation to provide a home, depends on the circumstances of the case, including consideration of the factors contained in s 91 of the Act.

41 At the trial in April 2013, Mrs Morris submitted that the appropriate order to be made in this proceeding was, at a minimum, for the Croydon property to be transferred to her. In support of this submission, Mrs Morris noted that both her financial position and the financial position of the estate of the deceased had been significantly reduced by the Morris Family Trust proceeding, the Superannuation proceeding, the Rye Sale proceeding and the legal fees charged by the solicitors involved in those proceedings.

42 Mrs Morris submitted that, given this, the sensible way to protect what is left of the estate and to ensure that she has somewhere to live for the rest of her life is to transfer the Croydon property to her. She also submitted that, to the extent that the Court determines that there are any remaining entitlements, it should find that these entitlements are subordinate to and should yield to Mrs Morris' entitlements. Thus, if there is anything left in the estate after the transfer of the Croydon property to her, she should receive a pecuniary legacy representing 60 per cent of what is left with the balance distributed to any remaining beneficiaries and the solicitors.

43 This result, Mrs Morris submitted, is consistent with the existing authorities in similar circumstances, and accords with the wishes of the deceased that his widow should be secure in her future.

44 The defendants accepted that the deceased had a moral obligation to make provision for Mrs Morris in his will. They submitted that he fulfilled that obligation by leaving her a life interest in the matrimonial home, a holiday house, a car, and otherwise forming the view that she would be provided for financially by reason of the superannuation fund, her own investments and income from the Morris Family Trust.

45 The defendants submitted that it is relevant to have regard to what the deceased effectively left Mrs Morris at his death. They also submitted that, in taking into account the significant losses the estate has suffered as a result of the litigation I have previously referred to, the Court should have regard to Mrs Morris' role in that litigation. The defendants estimated that, by April 2013, Mrs Morris had spent over $600 000 in litigation against the estate. They submitted that Mrs Morris elected to spend her sizeable benefit from the Morris Family Trust on litigation with the estate and in the Superannuation proceeding. To do so was a decision made of her own volition to use 'what the deceased gave her' under the will, from the Morris Family Trust, and from the Morris Superannuation Fund.

46 The defendants submitted that Mrs Morris' actions placed her in a much poorer financial position than she would otherwise have been in, and further had the effect of significantly depleting the value of the estate and eroding the value of her own life interest in the Croydon property. In addition, the litigation concerning the Morris Family Trust and the Morris Family Superannuation Fund has destroyed any financial benefits she may otherwise have enjoyed from those funds. Ultimately, this has left very little in the residuary estate for the benefit of the defendants, or indeed for Mr Morris' Part IV claim, which the estate remains subject to. If Mrs Morris were to be given the further provision she seeks, the defendants would lose a future benefit to which they were entitled, having already lost their specific bequests to the costs of the litigation that she had instigated.

Summary of the Considerations under s 91(4) of the Act

47 In order to determine the three stages of the plaintiff's claim for provision from the estate of the deceased, consideration is required of the matters contained in ss 91(4)(e)-(p) of the Act. In respect of the various matters, I set out my findings as follows:

(e) 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.

48 Mrs Morris and the deceased were married in 1991. They were married for over 18 years, ending with the death of the deceased in 2010. It was a second marriage for both of them. The marriage was a loving and caring relationship. For the major part of the marriage, the deceased was ill with cancer, and his health deteriorated over time. During this time, Mrs Morris cared for the deceased.

(f) Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate.

49 It is acknowledged by each of the parties that the deceased had a responsibility to Mrs Morris, as she was financially dependent on the deceased throughout the marriage. During the lifetime of the deceased, they led a comfortable lifestyle. The deceased provided for her financially, and was in control of the finances at all times. On his death, he sought to provide for her in three ways, firstly by the provisions relevant to her in his will, secondly through the Morris Family Trust, and thirdly by provision for her from the Morris Superannuation Fund.

50 The deceased did not have any specific obligations or responsibilities towards his adult children or to his grandchildren. I have considered the nature and extent of his obligations towards Mr Morris and Amy in Mr Morris' Part IV proceeding.[25]

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

51 I have referred to the size and nature of the estate of the deceased as at the date of death, at the date of trial and at the date of judgment, noting that the estate has been significantly reduced. I consider that reduction, and the manner of that reduction, to be relevant considerations. The estate, although valued at $1 802 182.80 at the death of the deceased, has most recently been estimated at $194 346.55.

(h) 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 for the foreseeable future.

52 Mrs Morris' financial resources at the time of the initial hearing were estimated at $250 243.29, not including the interest in the Morris Family Superannuation Trust that it was later determined she was not entitled to. The Court was later informed that her estate intended to file for bankruptcy. As Mrs Morris is now deceased, she no longer has any future financial needs.

53 Mr Morris and the second plaintiff in Mr Morris' Part IV claim are also applicants for provision from the estate of the deceased. In summary, their financial resources are minimal, although I will return to his position in my judgment in that proceeding.[26]

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

54 Mrs Morris did not have any physical, mental or intellectual disabilities relevant to the provision the deceased ought to have made for her.

55 It was submitted on behalf of Amy Summer-Morris that she suffers from a number of disabilities, primarily manifested in learning difficulties. The details of her position are set out in Peter Morris v Smoel.[27]

56 Mrs Morris was 68 when her husband died, and 72 when she herself died.

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

57 Mrs Morris contributed $90 000 to the finances of the marriage at the commencement of the marriage in 1991. Otherwise, her contribution was to care for the deceased during the marriage.

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

58 Mrs Morris was provided for financially by the deceased during the marriage.

(m) Whether the applicant was being maintained by the deceased person 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.

59 As well as providing for Mrs Morris financially during the marriage, the deceased also contributed either all or almost all of the funds in the Morris Family Superannuation Fund, from which Mrs Morris was entitled to draw a pension, although that fund was subsumed in the superannuation proceeding.

(n) The liability of any other person to maintain the applicant.

60 Given that Mrs Morris has now died, this is no longer relevant.

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

61 Mrs Morris' character and conduct are evidenced in her fierce pursuit of losing litigation against the estate of the deceased and in the superannuation proceeding. She held a stubborn belief in what she considered to be her entitlements, as well as the correctness of her stand, no matter the ultimate financial or emotional cost was to her, to the estate of the deceased, or to the defendants.

62 Throughout the litigation, Mrs Morris either failed to understand, or refused to accept, the economic consequences of the positions that she took in the various proceedings. This approach has been disastrous, both legally and financially, for her and the estate of the deceased. In particular, Mrs Morris has consistently downplayed, or at least underestimated, the impact that her conduct would have upon others involved in the litigation, ignoring the reality of the situation.

63 An example of this is the position taken by her in this proceeding in her primary submission that the Croydon property ought to be transferred to her absolutely. This submission was made in April 2013, when the estimated value of the estate was less than $300 000 including that property. She failed to understand that her desired outcome could not be achieved in the circumstances. An order that the Croydon property, the only remaining substantial asset, be transferred to her would have left the estate insolvent, leaving nothing for the defendants as residuary beneficiaries of the estate.

64 Another example of this was her stance taken in the Rye sale proceeding. In December 2012 Mrs Morris maintained that, if the estate was successful against the Morris Family Trust, there would be sufficient funds in the estate such that the Rye property would not need to be sold to pay the estate's debts. This was in circumstances where the accounts for the Morris Family Trust (at March 2011) showed the trust to be insolvent in excess of $900 000.

65 A final example was her contradictory position taken in Mr Morris' Part IV proceeding. Mrs Morris actively encouraged Mr Morris to pursue his claim against the estate, yet, in her final submissions in this proceeding, submitted that his claims were weak compared to her own claim because of the period of estrangement between Mr Morris and the deceased. Mrs Morris then submitted that, with such a small estate, Mr Morris has no claim beyond the $10 000 that he is entitled to under the deceased's will. By encouraging Mr Morris to proceed against the estate, Mrs Morris has contributed to the legal costs of defending the claim, a claim that she ultimately submitted should fail.

(p) Any other matter the Court considers relevant.

66 By the various proceedings referred to, Mrs Morris is primarily (although not solely) responsible for the astonishing diminution of the assets of the estate of the deceased, as her pursuit and defence of litigation has resulted in the estate incurring substantial legal fees. In bringing the Rye sale proceeding, she unduly hindered the administration of the estate. In refusing to pay money owing to the estate from the Morris Family Trust, she forced the defendants as executrices to bring proceedings to recover the money. Although the superannuation proceeding did not directly affect the assets of the estate, it did cause further delay, and great expense for the defendants personally.

67 She has substantially diminished her own financial position, the position of the Morris Family Trust and the position of the Morris Family Superannuation Fund, such that the deceased's intention that she receive a reasonable living allowance from the Trust and a pension from the Fund is no longer possible as a result of the costs of the litigation involving those entities.

68 The estate of Mrs Morris is now bankrupt and, if any further provision were made for her, it would now pass to the estate's trustee in bankruptcy. As any award made would be ultimately for the benefit of the creditors of her estate, the insolvency of the estate is relevant to any provision the Court would make, should Mrs Morris establish that she was not properly provided for by the deceased.

69 It was accepted on all sides that Mrs Morris was a person for whom the deceased had responsibility to make provision under his will. The real question in dispute is whether the distribution of the estate of the deceased in his will does not make adequate provision for the proper maintenance and support of Mrs Morris.

70 In my view, looking at the position of the deceased and considering what he ought to have done in all of the circumstances of the case, there is no doubt in my mind that the deceased has acted as a wise and just husband in the provision he has made for his widow. The provisions of the deceased's will demonstrate that he considered carefully those he wished to benefit. Primarily, this was Mrs Morris and the defendants. He has taken great care to achieve proper and adequate financial provision for Mrs Morris. He ensured that Mrs Morris would have in her lifetime their matrimonial home in Croydon, their holiday house in Rye, and a motor vehicle. He provided that the expenses associated with each of these should be paid out of the estate. He also stipulated that she was to be provided with an adequate income during her lifetime from the Morris Family Trust and superannuation fund, jointly held assets that derived from the deceased.

71 This case is most unlike the case of Montague v Montague.[28] At issue in that case was the fact that the deceased's widow, having only been provided with a one-third interest in her home, had no security of residence or income. If the home were sold at the instance of her co-owners, she would have been left homeless, with insufficient funds both to purchase a home for herself and to maintain an adequate income.[29] In contrast, Mrs Morris had been provided with a right to continue to live as she had been - in the same home, the same holiday house, with all her expenses paid and an income provided. Had the assets of the estate remained substantially similar to what they were at the date of death of the deceased, Mrs Morris was certainly provided for properly.

72 For her own reasons, Mrs Morris chose to undermine substantially the asset base from which she was to derive her lifetime financial security. The assets of the estate are now a mere shell of what they were at the date of death of the deceased, an astonishing result given the size and nature of the estate. Mrs Morris must bear the primary responsibility for this achievement. Her decision unsuccessfully to pursue and defend litigation has dissipated both her own legacy and that of the defendants. Such an outcome could not have been even remotely foreseeable to the deceased at the date of his death. In accordance with s 91(3) of the Act, I am satisfied that proper provision was made by the deceased to Mrs Morris, and dismiss the application for further provision.

73 However, even if I were of the view that such provision could in fact be made by this Court, I consider that further provision ought not be made. In the circumstances of her death and her continuation of her claim against the estate of the deceased, any provision must be limited to provision that would have been appropriate up to her death. Where an award of provision has the effect of benefitting the creditors of an applicant, generally, the authorities regard such provision not to be for the maintenance and support of an applicant.[30] In some circumstances, a financial benefit could possibly be a benefit to an applicant, for example, an injection of funds into an applicant's business that may pay off some creditors and would benefit an applicant.[31]

74 That is not the position in the case of Mrs Morris. If further provision were made to the estate of Mrs Morris, it would vest in the trustee of Mrs Morris' bankrupt estate. Mrs Morris' main liability is to her former solicitors, K&L Gates, for professional costs incurred by her pursuing and defending the proceedings arising from the death of the deceased. In those circumstances, I consider that no further provision should be made to the estate of Mrs Morris and her claim is dismissed.

75 Writing in 1853, Charles Dickens described the fictional case of Jarndyce v Jarndyce in his serialised novel, Bleak House:

Jarndyce v Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce v Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce v Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce v Jarndyce still drags its dreary length before the court, perennially hopeless.[32]

76 In argument before me, counsel for the defendant referred to Jarndyvce v Jarndyce as 'a very good illustration of the damage done to the community, the law and the parties where this sort of litigation is allowed to continue'. Dickens himself insisted, in his preface to the novel, that 'everything set forth in these pages concerning the Court of Chancery is substantially true', and that he could name one suit some 20 years old, in which 30 to 40 counsel had been engaged at any one time.[33] Indeed, the case of Thelluson v Woodford, on which Dickens is said to have based his book, was still before the Courts some 31 years after the death of the testator, and 27 years after it was first heard.[34] One hopes that the law has come a long way since that time. Litigants, and their lawyers, are not simply entitled to press the 'numerous difficulties, contingencies, masterly fictions, and forms of procedure' that arise in litigation until 'the whole estate is found to have been absorbed in costs' and 'the suit lapses and melts away'.[35]

77 However, the history of these proceedings does not paint an encouraging picture. As a result of Mrs Morris' unsuccessful pursuits in the proceedings that have arisen from the death of the deceased, it is axiomatic that the resulting costs have been out of all proportion to any likely gains. In the appeal from my decision in the Rye sale proceeding, Maxwell P concluded:

It is always a matter of deep concern to the Court when assets in an estate are being used up in litigation about who should receive what share of the estate. It is clear from the material that there have been efforts to resolve the disputes and there has been mediation. The Associate Justices who have had conduct of various parts of these multiple proceedings have themselves been urging the parties to try and seek a resolution. But the fact that we have an appeal regarding the disposal of one asset shows that there is a spirit of disputation abroad.

In my respectful view, the time has come for someone (other than the lawyers, who are doing their best to represent the warring parties in the litigation) with an interest in maximising the return to beneficiaries, to take control of the situation and show leadership, imagination and a spirit of compromise. There is an urgent need to work out some way, outside the limited powers of the Court (and they are, at best, limited), to resolve the matter, so that as little as possible of the remaining assets are consumed in litigation and that all of those entitled to share in the estate are able to do so, as Mr Morris no doubt intended they should. The alternative is potentially endless litigation, and no-one will benefit from that.[36]

78 Plainly, this advice was not heeded. I accept that the issue of costs was not ignored by the parties, and the consequent depletion of the assets of the estate was a focus for counsel in the many hearings before me. Yet still, this litigation has, in the end, swallowed all but a small amount of the assets of the estate. In Re Sherbourne (No 2); Vanvalen v Neaves, Palmer J was faced with a like outcome and made the following observation, with which I concur:

What has happened in this case is a dark stain on the administration of justice. One might wonder that anything has changed since Dickens' Bleak House.[37]

[1] [2014] VSC 32 (14 February 2014) (McMillan J).

[2] Wooster v Morris [2013] VSC 594 (1 November 2013) [73] (McMillan J).

[3] K&L Gates represented Mrs Morris in some of her litigation until they sought and obtained leave to withdraw as Mrs Morris' solicitors, prior to the trial of this proceeding.

[4] Pursuant to the Bankruptcy Act 1966 (Cth_)_ s 247(1A). On 19 December 2013, Registrar Burns in the Federal Circuit Court made a sequestration order in respect of the estate.

[5] Read v Nicholls [2004] VSC 66 (16 March 2004) [37]-[41] (Nettle J); Poesch v Grosvero [2013] VSC 596 (1 November 2013) [31]-[32] (Derham AsJ).

[6] Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, 311-4 (Mason CJ, Brennan, Deane, Dawson & Gaudron JJ); Re Hemming's Estate [2009] Ch 313, 320-7 (Snowden QC).

[7] Mrs Morris was the sole director of the Petunia Corporation Pty Ltd at the time of the proceeding.

[8] Morris v Smoel [2013] VSCA 11 (15 January 2013).

[10] Collicoat v McMillan [1999] 3 VR 803, 818 (Ormiston JA); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 75-6 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA).

[11] Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478-9 (Lord Romer); Grey v Harrison [1997] 2 VR 359, 361 (Tadgell JA), 364 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 820 (Ormiston J); Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 76 (Chernov JA); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 200 (Gleeson CJ); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA).

[12] [1938] AC 463, 478-9 (citations omitted). Cited with approval in, for instance, Grey v Harrison [1997] 2 VR 359, 364-5 (Callaway JA); Collicoat v McMillan [1999] 3 VR 803, 815-19 (Ormiston J).

[13] [1999] 3 VR 803, 818. See also Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 77-80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [61] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA).

[14] White v Barron [1980] HCA 14; (1980) 144 CLR 431, 440 (Stephen J); Whitehead v State Trustees [2011] VSC 424 (2 September 2011) [40] (Bell J); Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656, 660 (Allsop P) 679-80 (Barrett JA); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [125]-[127] (White J).

[15] Forsyth v Sinclair [2010] VSCA 147 (22 June 2010) [60] (Neave JA); Lee v Hearn [2005] VSCA 127; (2005) 11 VR 270, 273-4 (Callaway JA); Grey v Harrison [1997] 2 VR 359, 365 (Callaway JA).

[16] [1997] 2 VR 359, 366.

[17] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362, 368-9 (Dixon J); Schmidt v Watkins [2002] VSC 273 (24 July 2002) [17]-[21] (Harper J); Webb v Ryan [2012] VSC 377 (3 September 2012) [21] (Whelan J); State Trustees v Bedford [2012] VSCA 274 (16 November 2012) [104] (Neave JA).

[18] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 (Dixon CJ); Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, 130 (Dixon CJ); Prosser v Twiss [1970] VicRp 29; [1970] VR 225, 232 (Lush J); Slack v Rogan [2013] NSWSC 522 (10 May 2013) [127] (White J).

[19] Panozzo v Worland [2009] VSC 206 (25 June 2009) [56]-[57] (Forrest J).

[20] [2002] NSWSC 328 (22 April 2002) [62] (Austin J).

[22] Smith v Barker [2005] NSWSC 14 (2 February 2005) (McLaughlin M).

[23] Moore v Moore [2005] VSC 95 (8 April 2005) (Mandie J).

[24] Abrego v Simpson [2008] NSWSC 215 (13 March 2008) (Windeyer J).

[25] Peter Morris v Smoel [2014] VSC 32 (14 February 2014) [92]-[96] (McMillan J).

[27] Ibid [47]-[54], [104]-[105].

[28] [2002] NSWSC 328 (22 April 2002) (Austin J), referred to above at [38]-[39].

[30] Caska v Caska [1999] NSWSC 289 (1 April 1999) (Bryson J); Thomas v Jackson [2002] NSWSC 660 (26 July 2002) (Macready M); Diver v Neal [2008] NSWSC 304 (7 April 2008) (McLaughlin AsJ); Strano v Jovcevski [2008] NSWSC 380 (30 April 2008) (McLaughlin AsJ);

[31] Diver v Neal [2009] NSWCA 54 (18 March 2009) (Basten JA).

[32] Charles Dickens, Bleak House (Bradbury & Evans, London, 1853) 3.

[34] (1829) 5 Russ 100; 38 ER 965. The claim that this case is the basis for Jarndyce v Jarndyce was made by Roger Kerridge in 'Undue Influence and Testamentary Dispositions: A Response' 2012 (2) Conv 129, 130 (n 6). However, in Collier v Queensland [2010] QSC 254 (20 July 2010) Atkinson J, citing Hurst G (1949_) Lincoln's Inn Essays_, Constable & Co Ltd at 116-8, claimed Jarndyce v Jarndyce was loosely based on Re Jennens, Willis v Earl of Howe (1880) 50 LJ Ch 4.

[35] Dickens, Bleak House (Bradbury & Evans, London, 1853) 615-6.

[36] Morris v Smoel [2013] VSCA 11 (15 January 2013) [46]-[47] (Maxwell P).

[37] [2005] NSWSC 1003; (2005) 65 NSWLR 268, 271 (Palmer J).