Roberston & Ors v Koska [2010] VSC 134

Roberston & Ors v Koska [2010] VSC 134 - VSC 2010 case summary — Zoe

[97]

(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.

(2) The Court must not make an order under subsection (1) in favour of a person unless -

(a) that person has applied for the order; or

(b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under subsection (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 -

(a) is or her will (if any); or

(b) the operation of the provisions of Part I, Division 6; or

(c) both the will and the operation of the provisions -

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

(4) The Court in determining -

(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 -

(i) the deceased's will; or

(ii) the operation of the provisions of Part I, Division 6; or

(iii) both the will and the operation of the provisions -

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; and

(d) any other matter related to an application for an order under subsection (1) -

must have regard to -

(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;

(j) the age of the applicant;

(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.

[137]

I turn therefore to the significance of the plaintiff's father's estate. Counsel for the plaintiff submitted that because the plaintiff's father left all of his estate to the deceased there arose a moral obligation or responsibility upon the deceased to continue the arrangements set in place in her latter years whereby the plaintiff was provided with accommodation. The argument was that where a man who has children from an earlier marriage leaves to his second wife the entirety of his estate, and thereby deprives the children of his first marriage of the provision which they might otherwise have expected, it falls to the second wife as a matter of moral responsibility to make adequate testamentary provision for those children. More specifically, it was said, because it is often the case that a husband cannot know with certainty the extent of the support that his widow will require, and in those circumstances it may be that anything less than the entire estate would be inadequate provision for the widow's proper maintenance and support, the children of the first marriage must forgo the provision which they might otherwise have received in order that their stepmother receive adequate provision. But if then later when the stepmother dies there is sufficient in her estate to make good some or all of the provision of which the stepchildren were earlier deprived, it is her responsibility to make it good.

The proposition is novel. It is only recently that the legislation was amended to allow stepchildren to make claims under Part IV[27] and so far nothing of this kind has been considered in any of the cases. There are a number of cases in New South Wales that have dealt with the entitlements of stepchildren, but they have been concerned with questions of whether stepchildren were sufficiently accepted as part of the testator's family to have a claim upon his bounty. In Henderson v Rowden Beach J dealt with a claim by a stepson for provision out of the estate of his stepmother, but in that case there was no evidence that the plaintiff's father made any financial contribution to the purchase of the property. Nor is there anything analogous in the decided cases to serve as much guidance. The question only arises because of the way in which the class of possible plaintiffs is now defined in Part IV: in terms of people to whom the testatrix had responsibility to make provision. It does not arise under other States' legislation in which the class of plaintiffs is exhaustively defined in terms of relationships. [Citations omitted]

[139]

Be that as it may, however, it appears to me that the proposition should be accepted, up to a point. For just as community attitudes are the touchstone of adequate provision, so too are they the criterion of responsibility to provide. Other things being equal, right thinking members of society are likely to accept that the needs of the widow of a second marriage should rank in priority ahead of the claims of the children of a first marriage; although of course it is always a question of fact. But equally, upon the death of the widow, and as it were in the event of a surplus, most would surely say that the children of the first marriage should rank for their fair share. For once the widow is gone, and therefore no longer in need of provision, her needs no longer warrant that the children rank behind her or thus her chosen successors.

Of course that is to speak in terms of broad generality and upon the assumption not only of an estate of sufficient value to provide for the children of the first marriage but also of a need for their provision. Furthermore, although the question for present purposes is confined to the first or jurisdictional aspect of the inquiry - of whether children of the first marriage may be regarded as persons for whom the widow of the second marriage has a responsibility to provide - the size of the estate and the circumstances of the children may be critical to the answer. But the need to look forward to the second stage of the inquiry in order to complete the first is endemic to most of the considerations listed in s. 91(4). It is the consequence of defining the class of eligible plaintiffs in terms of persons for whom a testator or testatrix has a responsibility to provide. The first stage of the inquiry is now informed as much by the answer to be given to the second stage as the second stage will be informed by the answer that is given to the first. But there are still two stages.

That said, the point of principle for present purposes is one of modest proportions. If children of a first marriage have stood aside in order that their father might make adequate provision for the widow of a second marriage, and upon her death there are assets in her estate, the amount left by their father to the widow maybe relevant to the question of whether she is responsible to provide for them.

[174]

(a) Upon the death of Helena, virtually all her estate went to the deceased, Franc Pozvek. No portion of her estate of any significance was paid out to any of the Plaintiffs. Upon his death, there being assets in his estate, the amount left by the Plaintiffs' mother to her husband is relevant to the question as to whether he had a responsibility to provide for them.

(b) The Plaintiff's mother, Helena, died on 8 January 2001. Subject to a relatively small amount of cash, the only evidence before the Court as to the contents and value of her estate immediately prior to her death was her interest in the Glen Waverley property which she owned together with her surviving spouse, Franc. It appears that prior to Helena's death, in about 2000, Helena and Franc had sold their two investment properties in Glen Waverley. [71]

(c) As to cash, there was evidence that each of the Plaintiffs received a gift of $5,000 shortly after their mother's death, which they understood at the time to be a distribution from her estate.[72]

(d) Irene said in her evidence that: "The property at View Point Road, Glen Waverley was owned by my mother and stepfather jointly."[73] There being no other evidence, I accept that she held her interest as a joint tenant with her former husband. This being the case, upon her death her interest was extinguished, it passed by operation of law to Franc and could not be bequeathed or disposed of by her in her will. This raises a point of distiction with McKenzie v Topp. In this case Helana's joint tenancy interest in the property could not have comprised part of her estate upon her death, because it passed automatically to her husband Franc by the rules of survivorship. This was not therefore a case, as in McKenzie, where a child or children of a first marriage stood aside in order that their natural parent might make adequate provision for the widower of the second marriage in a will, and gain moral advantage thereby.

(e) However, in the circumstances of this case, I do not consider that the point of distinction makes any material difference to the outcome. It is to be noted that this point was not a factor considered relevant by Cummins J in James v Day in determining that a testatrix, who had been provided for by her husband, the father of the plaintiffs, by joint ownership of the real property which passed to her through survivorship, assumed a moral responsibility to provide for her step children upon her death. The source of the moral responsibility in that case emanated not from the plaintiffs refraining from making a claim upon the death of their parent because they did not wish to disturb the step parent's last years, but rather from the increment in the deceased's financial position achieved upon the death of the spouse, which included gaining sole ownership of the major asset of the marriage, the real property in the matrtimonial home, by the step parent's survivorship and extinguishment of the joint tenant's interest.

(f) On this issue, I take a similar approach to that taken in James v Day.

(g) Although I accept the submission of the Defendant that prior to the marriage of Franc and Helena in 1958, the deceased brought a property into the relationship, namely the Pascoe Vale property, while Helena at that time contributed no real estate, there is evidence from which I infer that Helena contributed to the purchase of property during the marriage, including the Glen Waverley property. They purchased this property as vacant land in 1965, seven years after their marriage. Their marriage lasted 44 years. They bought and sold a number of properties together during their life as a married couple. Helena worked during her marriage to Franc and contributed to the purchase of properties which they acquired together.[74] Helena also helped Franc with the renovation of properties they purchased together.[75] Franc and Helena built their own home on the Glen Waverley property which they then occupied it as their matrimonial home for the rest of their lives together.[76] The property was acquired early in their long marriage and became their jointly owned property as a matter of law.

(h) Accordingly, I accept that Helena, during her marriage to Franc, contributed significantly to the purchase, development and maintenance of the Glen Waverley property. For the purpose of considering this element, I find that Helena's contribution to the asset wealth of Franc amounted to not less than one half of the value of the matrimonial home at 35 View Point Road, Glen Waverley.

At a glance

Court

Decision date

Before

Source

Judgment (254 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)