Plaintiff v First Defendant

2 The testator died on 30 January 2003 at the age of 64, leaving a will dated 17 June 1999. Probate of the will was granted to the first defendant ("David") on 12 March 2003 with leave being reserved to the plaintiff to come in and prove the same.

3 The testator was born on 21 April 1938. The testator had a prior marriage and there were three children of this marriage (the three defendants) who were: David (born in 1963), Catherine (born in 1965) and Stephen (born in 1971). In 1962 the testator and his first wife purchased a residence in Bundoora. In 1967 the testator had a lottery win and as a result was able to pay off the mortgage on his Bundoora property. The first wife of the testator died on 15 June 1980.

4 The plaintiff was born in London on 7 June 1938. Her mother, Kathleen Mulligan, continues to reside in the United Kingdom, as do six surviving sisters of the plaintiff.

5 The plaintiff married her first husband, Edwin Peck, on 30 March 1959 in the United Kingdom. They emigrated to Australia in 1963. There were four children of the plaintiff's first marriage, two sons and two daughters, all of whom reside in Australia and the youngest of whom is now aged about 36. The plaintiff and her first husband separated in or about 1979 and were divorced in 1982.

6 When the plaintiff separated from her first husband she had no significant assets. Her two eldest children had employment and she was responsible for the two youngest children. She worked as a tea lady. A short time later, the two youngest children ceased living with the plaintiff - one went to live with her sister and the other with his father.

7 In early 1982 the plaintiff met the testator at the Royal Children's Hospital where he was working as a butcher and she had taken up employment as a cook. They commenced living together as man and wife in late 1982 and they were married on 3 April 1983. The plaintiff had moved into the testator's house in Bundoora. This was a modern brick veneer house of four bedrooms and it was already fully furnished. The plaintiff contributed some furniture of her own and there was some rationalisation of their joint furniture holdings. The plaintiff also owned her own motor vehicle (a 1970s model Leyland P76). At the time that the plaintiff moved in with the testator, the testator's children were also living in the Bundoora house. David (then aged 18) was an apprentice cabinet maker; Catherine (then aged 16) and Stephen (then aged 11) were students. The plaintiff's youngest daughter also came to live with them for a while. The plaintiff performed normal household duties and fulfilled the role of mother to all of the children.

8 With the exception of a few short separations, the plaintiff and the testator enjoyed a continuous and generally harmonious married life from April 1983 until the death of the testator in January 2003.

9 After their marriage the testator and the plaintiff at first both continued working full time at the Royal Children's Hospital, although their particular jobs and duties changed from time to time. They received a similar amount in weekly wages from their employment. Broadly speaking they contributed an equal amount to the running expenses of the house.

10 However the plaintiff ceased employment in mid-1988 after having sustained injuries in two motor car accidents. As a result of those accidents the plaintiff has suffered continuous back pain and takes pain-killing medication three times daily and some other medications. The plaintiff received approximately $80,000 net as a result of litigation relating to these motor car accidents. Of that sum she expended about $20,000 on the cost of travel to the United Kingdom to visit her mother and sisters, living expenses while she was there and gifts to her English family. She bought her mother a washing machine, a dryer and a refrigerator and some heaters. She also bought her mother some clothes and took her on a holiday. She bought one of her sisters a refrigerator and bought presents for the other sisters. Her travel costs included visiting one sister who lived on the Shetland Islands and other family members in Kent and in Scotland. She contributed about $7,000 to improvements and furnishings in the Bundoora house (the testator contributed a similar amount). The plaintiff placed the balance in savings and investment accounts with a bank. She used those savings, together with the interest thereon, in order to continue sharing the household expenses and to buy a Ford Laser motor vehicle which she purchased for the sum of about $16,000, together with the trade-in of a motor car which she had earlier bought.

11 In the early 1990s, the plaintiff's savings were exhausted and she applied for and obtained a disability pension. In the late 1990s the testator was retrenched from his employment and received approximately $60,000 net of tax as a consequence. After ceasing work the testator together with the plaintiff moved to Echuca, having built a house there. The testator had earlier sold the Bundoora house and the testator and the plaintiff lived in a caravan for about six months while the Echuca house was completed. The cost of the land in Echuca (at 20 Fehring Lane) and the cost of constructing and furnishing the house was in the region of $200,000. These funds were derived from the sale of the testator's Bundoora house and from a sum of about $30,000 inherited by the testator. There is some confusion in the plaintiff's evidence concerning the relevant dates and amounts but the substance of what happened is as stated. The Echuca house was erected on about 2 acres of land with a large garden including an orchard. The house was quite large with four bedrooms and two bathrooms.

12 The testator began experiencing serious health problems in February 2002 and was hospitalised for 5 months. The plaintiff did what she could to maintain the garden and orchard. When the testator was discharged from hospital it was difficult for him to walk. At first he had the use of a wheelchair and later could take a few steps with the aid of walking sticks. The plaintiff's health also declined somewhat in this period and she also sustained an eye injury while gardening. The testator was re-admitted to hospital in Melbourne and the plaintiff stayed with him for the last two weeks of his life. He died on 30 January 2003.

13 By his will, the testator, after disposing of certain valuables and chattels, gave the sum of $5,000 to each of his four grandchildren and a motor vehicle to the plaintiff. He left his personal belongings to the plaintiff and one quarter of his real estate and cash or money assets to the plaintiff, and the residue of his real and personal estate to his children David, Catherine and Stephen in equal shares.

14 The testator's assets at the date of death were the real estate at 20 Fehring Lane Echuca, a 1999 Ford Fairlane motor vehicle registered in his name and cash investments of about $70,000. The motor vehicle was sold for the sum of $26,000 which has been paid to the plaintiff. I am satisfied on the evidence that the motor vehicle was in reality the joint property of the testator and the plaintiff. The cash assets, after the payment of funeral and testamentary expenses, have been distributed as follows:

5 grandchildren (one born after death of the testator)

15 The plaintiff does not seek to disturb the above distributions. The consequence is that the only asset remaining available in the estate for the purpose of this proceeding is the Echuca property worth about $350,000. Under the provisions of the will and assuming that the sum of $340,000 net is available from the proceeds of sale of the Echuca property (apart from any costs of this proceeding), the plaintiff is entitled to one quarter thereof, namely, the sum of about $85,000.

16 The plaintiff owns some furniture, has about $8,000 in a bank account and owns a 1993 Mitsubishi Magna sedan which she purchased for the sum of $6,000. She has lent $10,000 to a daughter, which she expects to be repaid, and she lent $5,000 to her son, of which $3,000 has so far been repaid. Apart from her pension she receives about $32 per week from ironing (work which she began doing in about 1996). Her current expenses exceed her income especially because of expenses associated with the Echuca property.

17 The plaintiff, having lived in quite comfortable and substantial residences for the whole of her nearly twenty years of married life with the testator, will be without a roof over her head once the Echuca property is sold. The plaintiff is now aged nearly 66, and, as the parties accepted on the basis of the Australian Life Tables, she has a life expectancy of a further 19 years. Her assets and income are inadequate to provide any sort of reasonable accommodation for her and the defendants did not seek to contend otherwise. Although none of the defendants have more than relatively modest assets and income, none of them have any special needs and, again, the defendants' counsel did not suggest otherwise.

18 In addition to her need for a residence, the plaintiff expressed a wish to visit her elderly and ailing mother and her sisters in England. The plaintiff said that the testator was not extravagant but rather was "quite frugal", and the plaintiff said that she and the testator "were totally opposite probably in that respect". In addition to the sums which she spent when visiting her family in the United Kingdom, the plaintiff gave evidence of her presents or contributions for the benefit of David and Catherine.

19 Counsel for the defendants said that the testator was a cautious, careful and thoughtful man who had put considerable thought into his testamentary provisions. His estate reflected his efforts and those of his first wife. The house in Bundoora had been purchased and improved by the testator and his first wife and the mortgage loan had been paid off as a result of their efforts and a small lottery win by the testator. The plaintiff had brought very little into the marriage by way of assets and when she received compensation in the sum of about $80,000 that sum had been "basically expended by her in a way that produced no tangible improvement to the parties' position". I interpolate that the latter submission is, on the evidence, misleading because a substantial part of the said sum of $80,000 had been spent by the plaintiff in ways which related to the joint concerns of the testator and the plaintiff.

20 Counsel for the defendants went on to submit that the Echuca land was purchased in the name of the testator and from his resources, and that the costs of the house erected on the Echuca land was also paid from the resources of the testator. It was submitted that the testator was aware that the plaintiff "was not good with money" and "was equally aware that the children of his first marriage deserved to benefit from an estate that basically had been built up by him and their late mother." Counsel for the defendants said that the testator had carefully considered these matters when drawing his last will.

21 Counsel for the defendants emphasised that the plaintiff had not managed to save any amount from the monies that had come into her hands. The defendants had had the misfortune of losing their mother at an early stage in their lives and had of course not participated in her estate which had passed to the testator. Counsel for the defendants emphasised the freedom of testation, referring to what was said by Callaway JA in Grey v Harrison.[1]

22 Counsel for the defendants accepted that the testator had a responsibility to make provision for the plaintiff but said that he had done so in his will. He criticised the plaintiff's lending of monies to her children and her wish to travel to the United Kingdom for a stay of some months. He submitted that the Court should uphold the carefully considered terms of the testator's last will.

23 The foregoing is a summary of written submissions handed up by counsel for the defendants at the commencement of his submissions. In oral submissions counsel for the defendants put that, if, contrary to his primary submission, the Court considered that further provision should be made for the plaintiff, then the appropriate order would be to provide for a life interest for her in the residue of the estate - in that way the needs of the plaintiff could be provided for without ultimately depriving the defendants of their inheritance. Counsel added that the plaintiff could be granted a life interest in such a way that she could decide what amount should be devoted to a residence and what amount should be invested to produce additional income for herself.

24 It was submitted on behalf of the plaintiff that the testator had failed to make adequate provision for her proper maintenance and support. The will failed to provide for a roof over the plaintiff's head, or for an adequate fund for contingencies having regard to the plaintiff's age and financial position. Counsel for the plaintiff submitted that a life interest in the residue would be an inadequate and insufficient provision for the plaintiff who was entitled to independence and flexibility in relation to her residential needs and in relation to future contingencies (such as health care and the like). Looking at the matters listed in section 91(4) of the Act, counsel emphasised the lengthy and harmonious marriage, the amount in the estate, the absence of other special claims upon it, the age and financial position of the plaintiff and the plaintiff's contributions to their joint expenditures during the marriage.

25 Counsel for the plaintiff said, as had been initially stated before the Master, that the plaintiff sought three quarters of the residue of the estate absolutely and the remaining one quarter of the estate for her life with the remainder over to the defendants.

26 Counsel for the plaintiff referred to a number of cases in which a testator's duty to his widow had been considered.[2] Counsel referred to cases where the adequacy and appropriateness of provision for a widow of a residence and a nest egg (or a fund for contingencies) were considered, and to judicial statements about a widow's need for a degree of independence, self respect and autonomy.[3] Further, reference was made to judicial statements about the difficulties and inflexibility inherent in the provision of a life estate or interest to a widow.[4]

Part IV of the Administration and Probate Act

27 Section 91 of the Act (as amended) provides, so far as relevant, as follows:

(1) 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.

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -

does not make adequate provision for the proper maintenance and support of the person.

(a) whether or not the deceased had responsibility to make provision for a person; and

(b) whether or not the distribution of the estate of the deceased person as effected by -

makes adequate provision for the proper maintenance and support of the person; and

(c) the amount of provision (if any) which the Court may order for the person; ...

(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;

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

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

(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;

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

(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;

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

(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;

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

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

(p) any other matter the Court considers relevant."

28 In Blair v Blair,[5] Chernov JA (with whom Hansen AJA agreed) said:

"... it is probably apt to describe the obligation of the testator that forms the subject of the enquiry under sub-ss. (1) and (3) as a moral obligation, as that concept has been explained in cases that preceded the recent amendments to Part IV of the Act, including the decision of Ormiston, J. in Collicoat v. McMillan [[1999] 3 VR 803, 815-824] and Grey v. Harrison [[1997] 2 VR 359, 361, 364-366]. Thus, it is clear enough that the "responsibility" of which sub-s.(1) speaks is the moral duty or obligation of the testator to make provision for the proper maintenance and support of the claimant. Similarly, sub-s.(3) is essentially concerned with whether the deceased - as a wise and just testator - has fulfilled his moral obligation to make adequate provision for the claimant's proper maintenance and support. Given, however, that the court is now directed by the legislation to have regard to the matters specified in paragraphs (e) to (p) of sub-s.91(4) when determining the jurisdictional issues, characterisation of the deceased's relevant obligation by reference to moral duty is likely to be of less utility than was the case prior to the recent amendments to Part IV of the Act. Be that as it may, it should be noted that while the criterion in each of paragraphs (e)-(o) of sub-s.91(4) is concerned with a specific matter, paragraph (p) is open ended, enabling the court to consider "any other matter [it] considers relevant" and giving it a wide discretion to look beyond the specific statutory matters which are set out in the immediately preceding sub-paragraphs for the purpose of determining if the jurisdictional requirement has been satisfied and, where relevant, bringing into consideration the testator's moral obligation to the claimant."

29 In a concurring judgment in the same case, Nettle JA said:[6]

"I agree with Chernov, J.A., for the reasons which his Honour gives, that the appeal should be dismissed.

I wish, however, to add to his Honour's observations with respect to the continuing relevance of the conception of moral duty to the jurisdictional questions posed by ss. 91(1) and 91(3) of the Administration and Probate Act 1958.

The court is bound in answering each of those questions to have regard to the matters mentioned in ss. 91(4)(e) to (o) and, pursuant to s. 91(4)(p), to any other matter considered to be relevant. Self evidently, such matters are of themselves incapable of providing an answer to either question. To reason from the matters mentioned in ss. 91(e) to (p) to a conclusion that a testator had a responsibility to make provision for a claimant, or that the testator failed to make adequate provision for the claimant, necessitates the application of a test or standard to the matters to be considered. That test remains one of whether and if so what provision a wise and just testator would have thought it his moral duty to make in the interests of the claimant."

30 Since that case, the use of the expressions "moral duty", "moral obligation" and "moral claim" in family provision cases have been considered by the High Court in Vigolo v Bostin.[7] Gleeson CJ, Callinan and Heydon JJ referred to the value and usefulness of the concepts, whereas Gummow and Hayne JJ thought that it was better not to use them and to adhere to the statutory language. It is to be noted that these judgments were given in the context of the Inheritance (Family & Dependants Provision) Act 1972 (WA) which contained provisions similar to those which are found in Part IV of the Victorian Act but which did not contain the additional language now found in section 91 of the Victorian Act which replaces the "listed categories of persons" approach with the formula "a person for whom the deceased had responsibility to make provision". The use of the word "responsibility" might be thought to support the utility, in the Victorian context, of these concepts of moral duty, obligation, and claim, provided that they do not supplant the statutory language.

31 It was necessarily accepted by the parties that the testator had responsibility to make provision for the plaintiff.[8] The question is whether the distribution of the estate effected by the testator's will made adequate provision for the proper maintenance and support of the plaintiff. This must be considered in the light of the criteria listed in s.91(4) of the Act (so far as relevant), to which I now turn.

(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

32 As already stated, the plaintiff enjoyed a relatively harmonious marriage with the testator for a period of nearly twenty years, during which period they shared the burden of their regular expenses and outgoings. The testator provided comfortable residential accommodation for the plaintiff from his own resources.

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

33 The testator was responsible for the provision of maintenance and support to the plaintiff. He might also be said to have had an obligation to make some provision for the long term needs of his adult children but only if he had the resources to do so after making provision for his wife, as his children had no special needs or claims.

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

34 The net estate is worth about $340,000, being the amount likely to be available from the sale of the Echuca property.

(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

35 The plaintiff has virtually no financial resources and very limited earning capacity. She needs a residence and, if possible, a fund for the contingencies of life (including medical and other care) in the context of a life expectancy of about 19 years.

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

(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

38 The plaintiff did not make any substantial contribution to the building up of the testator's estate, save that she contributed to running expenses over the years. The plaintiff dutifully carried out the responsibilities of a wife to her husband, the testator, and towards his welfare.

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

39 It is not suggested that there are any relevant benefits previously given by the testator to any person. However, the plaintiff has already received the sum of $11,000 from the estate and, in addition, a small pension benefit on the death of the testator. Each of the children has received a distribution of $11,000 under the will which will not be disturbed. Five grandchildren have each received $5,000 and the distribution of these sums totalling $25,000 is, again, not to be disturbed.

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

40 There are no disentitling factors arising from the character or conduct of the plaintiff.

41 It is relevant to consider that the estate of the testator, largely if not entirely, derived from a period prior to the marriage of the testator to his second wife (the plaintiff) and that the sources of the estate existed before the plaintiff came on the scene. The testator's children might hold a not unreasonable expectation that they should enjoy some inheritance from the estates of their mother (the testator's first wife) and of the testator. It is also relevant to take into account the contribution of the plaintiff to the maintenance of the testator's assets in her capacity as wife and "homemaker".

42 Having regard to the evidence as a whole and in the light of all of the above matters, I find that the testator failed by his will to make adequate provision for the proper maintenance and support of the plaintiff. One quarter of the testator's real estate and of his cash or money assets amounts to approximately $96,000 (including the sum of $11,000 which the plaintiff has already received). That sum is manifestly inadequate to provide a suitable residence for the plaintiff, in her circumstances, let alone to provide for her future contingencies. A wise and just testator would have considered it his prime responsibility and moral duty to make a substantially greater provision for his widow.

What further provision should the Court order? [9]

43 The parties were given an opportunity, which they utilised, to provide evidence of the cost of appropriate accommodation for the plaintiff in the Echuca area and, after further affidavits were filed in this regard, the Court heard further submissions. I am satisfied that an adequate residence for the plaintiff would cost in the range of about $180,000 to about $250,000.

44 In my opinion it would not be adequate or proper provision for the plaintiff merely to grant her further provision by way of a life interest in the whole of the residue of the estate. I agree with the submissions made on her behalf that such a provision would not be sufficiently flexible and would unduly restrict her independence, having regard to her age and future needs.

45 I consider that further provision should be made for the plaintiff by way of an absolute entitlement to three-quarters of the residue of the estate, together with a life interest in the remaining one-quarter, as was specifically sought on her behalf. The result of such a provision, after costs, would be that the plaintiff would have available to her the approximate sum of $225,000 for the purchase of a suitable residence. On the evidence, that would be sufficient to obtain a suitable residence, even if not at the top of the price range.

46 To the extent that the plaintiff might choose to purchase a suitable residence of lower cost (and the evidence shows that there are a number available at lesser prices), she would have an amount available to set aside for future contingencies. In addition, and in any event, she will have the income available from one-quarter of the residue to which she will be entitled for her life.

47 It is true that, as a result of making further provision for the plaintiff in this way, the defendants might well be substantially deprived of their expectation of an inheritance from their parents. However they will eventually succeed to one-quarter of the residue. In addition, they have already received the benefit of distributions totalling $33,000 and the grandchildren (their own children) have also received a total of $25,000. In the context of an estate of this size, and in the light of the requirements of Part IV of the Act, their interests have been met so far as is possible.

48 For the foregoing reasons, provision will be ordered for the plaintiff by amending the will of the testator dated 17 June 1999 as follows:

(i) by deleting clause 4(a) of the will and substituting the following:

"(a) as to three-quarters thereof, to pay the same to my wife AGNES MOORE absolutely"

(ii) by deleting clause 4(b) of the will and substituting the following:

"(b) as to one-quarter thereof, to invest and pay the income therefrom to my wife AGNES MOORE for her life and after her death to pay the same absolutely to my said children David, Catherine and Stephen as shall survive me as tenants in common in equal shares".

49 There will be a further order that the distributions which have already been made by the executor to the plaintiff and to each of the defendants and to the grandchildren of the testator shall not be disturbed or taken into account in giving effect to the above provision for the plaintiff.

50 It will be further ordered that the costs and expenses of the defendant executor be taxed and paid or retained out of the residue of the estate and that the costs of the plaintiff and the other defendants be taxed as between solicitor and client and paid out of the residue of the estate.

1. [1] [1997] 2 VR 359, 366.
2. [2] See White v Barron [1980] HCA 14; (1980) 144 CLR 431; Luciano v Rosenblum (1985) 2 NSWLR 65; Elliott v Elliot (Unreported, 24 April 1986, NSW Court of Appeal; Kirby P, Glass & McHugh JJA); King v White [1992] VicRp 72; [1992] 2 VR 417; Ross v Ross [2002] VSC 544; Downing v Downing [2003] VSC 28.

3. [3] See Luciano v Rosenblum (1985) 2 NSWLR 65, 69 per Powell J; Elliott v Elliot (Unreported, 24 April 1986, NSW Court of Appeal; Kirby P, Glass & McHugh JJA) per Kirby P (at p.3), per Glass JA (at pp.7,9); King v White [1992] VicRp 72; [1992] 2 VR 417.
4. [4] King v White [1992] VicRp 72; [1992] 2 VR 417, 424-5 per Hedigan J (and cases there cited); Downing v Downing [2003] VSC 28.
5. [5] [2004] VSCA 149, at [13].
6. [6] [2004] VSCA 149 at [39]- [41].
7. [7] [2005] HCA 11.
8. [8] See s.91(4)(a) of the Act.
9. [9] See s.91(3)(c) to (p) of the Act.