Singvongsa v Madden [2002] VSC 316

5. The last will of the deceased, dated 25 May 1997, appoints the defendant as executor and leaves the whole of the residuary estate to the deceased's children, Alexandre Phonesavan Thibaudeau and Sorya Lucia Serrati, in equal shares. Clause 5 of the will is as follows:

"I declare that I make no provision for my husband Viroun Singvongsa as I believe I have adequately provided for him during my lifetime and it is my wish that my children are the sole beneficiaries of my estate."

9. It was accepted by counsel that, contrary to cl. 5, no provision had been made for the plaintiff during the lifetime of the deceased so that this statement was false. At the conclusion of the trial I formed the clear view that provision should be made in favour of the plaintiff and that he should have a one-third share of residue. I announced this conclusion. These are my reasons.

13. Born in Laos in the early 1950's, the plaintiff and the deceased were second cousins and had known one another since they were children. In 1965, the deceased moved with her family to Geneva and, in the late 1960's, when the deceased was visiting Laos, the plaintiff and the deceased became involved in a romantic relationship which continued for four years.

16. The plaintiff lived and studied in France in the 1970's and emigrated to Australia in February 1988 with his first wife, Natchanok Suvansopha, and their three children. He became an Australian citizen in 1990. His wife abandoned him and the children in 1996.

19. The deceased married Jean Maurice Rene Thibaudeau in 1976 and a son, Alexandre, was born in 1978. The couple divorced in May 1982. The deceased formed a relationship with a Joseph Serrati and daughter Sorya was born in January 1984; that relationship ended in 1985.

22. The plaintiff's younger sister, Vilay Frichit, had maintained contact with the deceased over the years and in 1996 the deceased contacted the plaintiff by telephone from France when she heard of his distress following his wife's departure. The pair resumed their friendship by telephone and in May 1996, the deceased visited Australia and stayed with the plaintiff for a period of two weeks. About this time, at the suggestion of the deceased, the plaintiff divorced his wife. In July 1996, the deceased emigrated to Australia with her daughter and commenced living with the plaintiff. The couple married on 10 August of that year. The will was made in March 1997 containing the remarkable cl. 5 which I have set out above.

25. The marriage thereafter appears to have been characterised by her efforts to live apart from her husband, and his to find her and resume their married live. In or around October 1997, the deceased moved to Bangkok to work for twelve months and in late 1997 the deceased told the plaintiff over the telephone from Bangkok that he would have to vacate the Dandenong property as she intended to rent it. After she told him she did not want to see him he went to Bangkok to find her. His efforts were in vain, as she had moved without a forwarding address. The plaintiff returned to Melbourne where he lived with his sister. The deceased ceased all communication with the plaintiff. According to the plaintiff, the couple resumed their relationship in France and Bangkok briefly in May 1998 and again in Melbourne in August 1998, when they lived together for four months. They separated finally in January 1999. On 4 August 1999, the deceased, at a time when she was preparing to leave for Belgium to live and work so as to be closer to her children, was murdered. She left a net distributable estate valued at approximately $620,000.

30. The Court's approach in an application for family provision under Part IV of the Act is a two-stage test. First, the Court must determine whether the applicant has been left without adequate provision for his proper maintenance, education and advancement in life. Second, if the Court concludes that the applicant has been left without adequate provision, it must then go on to decide what provision ought be made out of the deceased's estate for the applicant.[1]

33. The question of whether there was adequate provision made for the plaintiff turns on whether there is a moral obligation for the deceased to make provision for him. When determining this first question the Court is required to have regard to the matters set out in s 91(4)(e) - (p) of the Act. This I have done. I mention in particular the following which have special bearing on this case.

36. The marriage was of 3 years' duration, not an inconsequential period of time. The plaintiff told me and I accept that he had a genuine affection for the deceased which was rekindled when they resumed contact in 1996. The deceased's son, Alexandre, stated in his affidavit dated 23 November 2001 that the deceased told him that she had married the plaintiff in order to stay in Australia and that the marriage was not going very well. Further, it was submitted by counsel for the defendant that the marriage was one of convenience to the deceased to enable her to obtain permanent residency in Australia. The plaintiff denied this, protesting that theirs was a marriage of love. I accept his evidence. The couple had a friendship of long standing; the deceased stated in her statutory declaration sworn on 26 September 1996 that the pair married in the presence of all their friends and family, that she loved the plaintiff "very much" and that she believed that the pair should have married when they were young and first in love.

39. While the plaintiff did not contribute to payment of the mortgage on the house in Dandenong North, he paid all living and household expenses and outgoings. The plaintiff also housed and supported the deceased's daughter, then aged 13 years, for approximately 3 months in late 1997 when the deceased was working in Bangkok. She was then earning a substantial wage which she applied in payment of the mortgage instalments and in gambling.

42. The plaintiff is aged in his fifties, is in financial need and is currently receiving unemployment benefits and rental assistance totalling $405.00 per fortnight.

45. I find that the deceased at the date of her death had a moral obligation to make provision for her husband in circumstances where the value of the estate was then thought to be approximately $400,000 and where the husband had no assets and a modest income.

48. I turn now to the final question of the quantum of the provision to be made for the plaintiff. This is the provision necessary for the plaintiff's maintenance and support. Again, I have regard to the matters prescribed in s. 91(4), including the present size of the estate and the fact that the deceased's two children are young and financially disadvantaged.

51. Counsel for the plaintiff asked for provision to enable her client to purchase a home for himself and his new wife. To my mind this is appropriate. In the unhappy circumstances of this case, I determined that the proper course is that the net estate be shared equally between the plaintiff and the two children of the deceased. Orders were made accordingly.

[1] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208, per Mason CJ, Deane and McHugh JJ.