Plaintiff v First Defendant

2 The third defendant, St Vincent de Paul Society of Victoria Inc, filed a summons on 10 June 2011 seeking, inter alia, the following relief:

1. That pursuant to Rule 23.01(1) ... and ss 62 and 63 of the Civil Procedure Act 2010 there be summary judgment for the defendants in the proceeding on the ground that the plaintiff's claim has no real prospect of success.
2. Alternatively, that pursuant to Rule 23.03 ... and ss 62 and 63 of the Civil Procedure Act 2010 there be summary judgment for the defendants in the proceeding on the ground that the plaintiff's claim has no real prospect of success.

3 The third defendant is the sole residuary beneficiary under the deceased's last will.

4 The first and second defendants are the executors. By affidavit of Raymond John Willis sworn 23 June 2011, the first and second defendants supported the third defendant's application made by summons.

Administration and Probate Act 1958

5 The power to make a maintenance order under Part IV is set out in s 91. The Court has power to make an order for provision of an applicant 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."[1] The discretion is untrammelled. However, in determining whether or not the distribution of the estate of the deceased person, as effected by the deceased's will, made adequate provision for the proper maintenance and support of the applicant, the Court must have regard to the matters set out in s 91(4) of the Act.

6 The deceased left a will dated 11 December 2006. By the terms of her will, the deceased made several specific bequests totalling $2,300,000 as follows:

(a) $150,000 to each of her nephews Peter Joy and Richard Joy as well as to her niece Pamela Joy;

(b) $150,000 to each of the two daughters of Richard Joy;

(c) $550,000 to her housekeeper Judy Edwards;

(d) $1,000,000 to her niece Ella Mary Wagner provided that any money given during the deceased's lifetime be taken in to account as an advancement.[2]

The plaintiff contends Ella Mary Wagner had already received the sum of $1,000,000 during the deceased's lifetime.

7 The deceased left the residue of her estate, after payment of debts, funeral and testamentary expenses, to the third defendant. To the best of the executors' calculations, the residuary estate will amount to approximately $1,112,900. The net estate was set out as $2,225,690.39 in the inventory. In addition, the deceased established the "Griffiths Family Trust" which has assets of around $10 million with the income (interest) being provided for medical research. The plaintiff believes that the trustee of the Griffiths Family Trust has power to make distributions to family members but she is unaware of any such distributions over the years.

8 The deceased made some five wills and one codicil prior to her last will on 11 December 2006 and codicil thereto of 30 August 2007. Provision made for the plaintiff in the prior wills[3] is as follows:

9 The plaintiff's application is supported by her affidavit sworn 20 December 2010. There were further affidavits filed in June of 2011 in support of the application or in reply to matters raised on behalf of the first and second defendants. I will not set out what is relied upon as the history of the relationship between the plaintiff and the testator is not determinative of this application. The plaintiff's counsel summarised what was to be distilled from the evidence at paragraph 12 of the submissions as follows:

The relationship was more intense than usual between a niece and an aunt. While the [plaintiff] does not claim it approached the type of relationship between a child and a parent, it is noted that the deceased and her husband were childless and therefore, like many in their position, took a special interest in nieces and nephews. Moreover, it is clear from the evidence that the [plaintiff] was a devoted niece, supplying some of the care and attention which might ordinarily be given by a child or at least a child separated by considerable distance and where there were other children of the deceased who were able to provide primary care (a position filled by the [plaintiff's] sister).

10 The third defendant, for the purpose of this application, properly conceded that:

It is clear that the plaintiff claims to have had a longstanding and loving relationship with her aunt and for the purposes of this application that should be accepted. It is also clear that this manifested itself in the plaintiff keeping in touch with her aunt regularly. Had the plaintiff's aunt chosen to leave the plaintiff money in her Will, there would have been nothing surprising about that.

However, there is nothing in the plaintiff's evidence which establishes an assumption of responsibility by the deceased to maintain the plaintiff or actions or contributions on the part of the plaintiff such as would create such a responsibility, bearing in mind that even generous and self-sacrificial assistance will not ordinarily create such a responsibility ...

As Mukhtar AsJ said in Jackson v Newns ...

The law in this field does not transform a great relationship into, therefore, a moral responsibility to provide.[4]

11 The third defendant drew to my attention other decisions dealing with applications by nieces. They sought to distinguish the plaintiff's application on the basis that in McLeod v Troy,[5] providing care to "the severe disruption it caused to [the plaintiffs'] lives"[6] led to an arguable application, and in Keil v Cook[7] where Hollingworth J found that the claim of a niece who had cared for and taken her aunt into her own home during the last six or seven months of her life was "arguable."[8] However, the lack of disruption or assumption of responsibility was contrasted with this application.

12 The first and second defendants supported the submissions by the third defendant. Counsel for the first and second defendants set out that:

The Deceased and the Plaintiff enjoyed a warm and respectful relationship and no doubt they derived pleasure from it, but in the submission of the First and Second Defendants this did not give rise to the moral obligation to make testamentary provision.[9]

13 In Schmidt v Watkins,[10] Harper J said:

The Court must in those cases, and as its initial focus of inquiry, decide whether or not the claimant falls within the class of person for whom the deceased had a responsibility to make adequate provision for his or her proper maintenance and support. Since the Court has no jurisdiction to make an order in favour of a person for whom the deceased did not have this responsibility, the Court's initial focus also falls within what is for these purposes the definition of a 'jurisdictional question'. It nevertheless seems to me that the touchstone remains that of the wise and just testator; and the Court must respect freedom of testation except in those cases where the freedom has been abused by the failure by the deceased to fulfil his or her responsibility to such a claimant.

14 By s 76 of the Civil Procedure Act, Part 4.4 of Chapter 4 applies to this proceeding. Part 4.4 permits the application for summary judgment "on the ground that a plaintiff's claim or part of that claim has no real prospect of success."[11] The summary judgment provisions under r 23.01 may be invoked in an application of this type despite there being no pleading.[12]

15 A useful summary of the principles applicable to summary judgment is found in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd.[13] There is no need to set out the principles save to say that, in effect, the task on this type of application is to determine whether or not the plaintiff's application has more than a "fanciful" prospect of success.

16 I determine that, given the provisions made in favour of the plaintiff in at least some of her previous wills, I cannot be satisfied that this application, under Part IV of the Act, does not have a "real prospect" of success. That is, the claim is something more than fanciful.

17 In Mitrovic v Perpetual Trustee Co Ltd,[14] Macready M dealt with an application by a niece for family provision. There were a number of factors germane to the determination that a larger provision ought to be made, including evidence of a close relationship illustrated by the deceased taking the plaintiff into her care after the plaintiff's mother died. That closeness of relationship is absent in the application before me. However, Macready M also had regard to a number of prior wills over the period of time wherein the plaintiff was to receive legacies. At [31], Macready M noted:

Another indicator that suggests that there are factors warranting, is the way the deceased has treated the plaintiff during her lifetime by the references made in her wills. Clearly the deceased thought the plaintiff was someone who should have recognition in her will.

18 I cannot be satisfied that there is no reasonable prospect that the trial judge would not have regard to the wills from April 2003 through to March 2005, notwithstanding no provision was made in the wills from 20 October 2005 and thereafter.

19 Accordingly, the application by summons filed 10 June 2011 is dismissed.

20 This was an entirely proper application to be brought by the third defendant. Accordingly I order that the costs of this and incidental to the summons dated filed 10 June 2011 be costs in the proceeding.

[2] Plaintiff's affidavit sworn 20 December 2010, paragraph 3.

[3] First Defendant's affidavit sworn 21 March 2011, paragraph 10.

[4] Paragraph [20] - [22] of the submissions of the third defendant.

[5] [2002] VSC 187.

[6] McLeod v Troy, per Beach J at [19].

[7] [2008] VSC 53.

[9] Paragraph [12] of the submissions of the first and second defendants.

[10] [2002] VSC 273 at [8].

[12] Harris v Bennett (No 1) [2002] VSC 139; (2002) 8 VR 411 at [51], [52].

[13] [2011] VSC 222 per Dixon J.

[14] [1999] NSWSC 900.