Suffern v Suffern-Noble [2002] VSC 389

Supreme Court of Victoria|2002-09-11|Before: Balmford J

WILLS AND PROBATE - application for further provision for the plaintiff's maintenance and support out of the deceased's estate - whether the plaintiff is a person for whom the deceased had responsibility to make provisions - whether the deceased's will makes adequate provision for the proper maintenance and support of the plaintiff - relevant considerations set out in section 91(4) of the Administration and Probate Act 1958

Coates v National Trustee Executors & Agency Company Ltd [1956] HCA 23; (1956) 95 CLR 494

Luciano v Roseblum [1985] 2 NSWLR 65

Re Allen; Allen v Manchester (1921) 41 NZLR 218

Re Howell; Howell v Lloyds Bank Ltd [1953] 1 WLR 1034

Schmidt v Watkins [2002] VSC 273

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317

In this proceeding, commenced by originating motion on 20 April 2001, the plaintiff seeks an order under Part IV of the Administration and Probate Act 1958 ("the Act") that further provision be made for her maintenance and support out of the estate of Robert John Suffern ("the deceased") who died on 28 September 1999.

As the death of the deceased occurred after the coming into operation on 20 July 1998 of the amendments to the Act effected by the Wills Act 1997, section 99AA of the Act has the effect that the provisions of the Act as thereby amended are applicable to his estate. Section 91 of the Act reads, so far as relevant:

(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 -

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

. . .

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;

. . .

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 sub-section (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.

The effect of section 91(4) is that the Court must make findings of the facts (if any) relevant to all of the considerations set out in paragraphs (e) to (p) of that sub-section before making findings as to any of the matters set out in paragraphs (a) to (d). In setting out my findings, I have found it convenient to insert underlined references to paragraphs (e) to (o) rather than setting out the evidence under separate headings derived from those paragraphs. Much of the evidence put before the Court by both parties was unchallenged. In setting out what I find to be the relevant facts, I have indicated where this was not the case. And see [20] to [24] below as to the credit of the plaintiff.

The deceased was born on 23 February 1936. He was married twice, first to Joyce, from 1957 until the marriage ended in divorce in 1978. The two children of that marriage are the firstnamed defendant ("Karen") who is aged 44 and her sister Linda Read ("Linda"), who is aged 41. The deceased married Beth in 1978, and that marriage ended in divorce in 1997. There were no children of the second marriage.

The plaintiff was born in 1952, and is thus fifty years old. She married Steven Everett ("Steven") in 1972 and there are two children of that marriage, both now in their twenties. She has no dependants. She lived with her husband in the matrimonial home at Wantirna until 28 May 1998, when she went to live with the deceased in a house at 30 Hilledge Lane Mooroolbark ("Hilledge Lane"). Her evidence is that by 1993 she and Steven were living separately under the same roof. Steven's evidence is that sexual relations between them ceased, on the plaintiff's initiative, at about the end of 1996. They were divorced in July 1999. Paragraphs (e) and (j)

From 1987 the deceased conducted a business manufacturing television antennas ("the business"), through Suffren Antennas Pty Ltd, a company which he controlled ("the company"). The plaintiff was employed as a secretary in the business from 1989, having previously been employed by another company with offices in the same building. A sexual relationship between the plaintiff and the deceased commenced in June 1994. After leaving her husband and moving in to Hilledge Lane on 28 May 1998, the plaintiff continued living with the deceased until his death on 28 September 1999. He became ill in January 1999, and was diagnosed with cancer in April 1999, at which time he ceased working in the business. From that time the plaintiff ran the business until it was sold in September 1999. Paragraphs (e) and (h)

Hilledge Lane was bought in 1996, and the deceased was the sole registered proprietor. The plaintiff and the deceased caused extensive renovations to be done to the house, which they carried out themselves wherever possible, and the plaintiff deposes that "the works were decided upon and paid for by us together". She gives no specific evidence as to the amount of her contribution to the cost of those works. Her evidence that "the furniture in the house was purchased by us and were [sic] joint assets", although unchallenged, is similarly unspecific and unsupported, and accordingly cannot be quantified. The financing of the purchase is considered further at [18] below. The plaintiff's evidence was that in the period after the purchase, and before she left the matrimonial home, the deceased lived at Hilledge Lane and she was there nearly every day and most weekends. She did the cooking, housework, cleaning, laundry and most domestic tasks. She said that during this period she would cook for the deceased in Hilledge Lane and then would buy takeaway food on the way home for her husband and son. Paragraphs (e) and (k)

She said that sometimes she and the deceased spent time together at a property owned by the deceased at Eildon, where she carried out the same tasks. She arranged for some repairs and the purchase of bedding and appliances at Eildon, but does not specifically state that she paid for them. The plaintiff deposed that she contributed $43,000 towards reducing the loan secured against the Eildon property. Paragraph (k)

The plaintiff and the deceased belonged to a motor cycle club and went on outings and holidays with that club. In her affidavit of 12 June 2001 the plaintiff deposes that:

Bob and I holidayed together. We went to Hong Kong, Singapore, the USA and Hawaii. Within Australia we went to Tasmania several times, Townsville, Brisbane and Adelaide and toured Victoria and New South Wales.

In her oral evidence she said that these travels were "a business trip cum holiday". I note that Steven said in evidence that he was unaware of the relationship with the deceased until the plaintiff left the matrimonial home in May 1998. Paragraph (e)

The deceased and the plaintiff took part together in activities with the plaintiff's children and also with Karen's children. Paragraph (e)

In 1994 and 1995 the deceased gave the plaintiff three diamond rings, the third of which was described as an engagement ring. After her divorce was finalised in June 1999 he gave her a wedding ring. She deposed that the neighbours at Hilledge Lane thought that she and the deceased were married, as did friends whom they had met since 1994. On 6 October 1999, shortly after the death of the deceased, she applied to register a change of name and was issued with a birth certificate in the name Patricia Anne Suffern. Paragraphs (e) and (l)

Probate of the deceased's will made on 24 September 1999 was granted on 20 October 2000 to the three executors named in the will, being the plaintiff, Karen, and Karen's husband David Suffern-Noble ("David"). After providing for his personal chattels to be distributed in accordance with a list, the deceased left to the plaintiff the sum of $100,000, the property at Hilledge Lane and its contents, and a Statesman motor vehicle. His superannuation entitlements, and, after payment of debts, funeral and testamentary expenses and duties, the residue of his estate, were divided equally between his daughters. There is no evidence relating to any list of personal chattels, save that the plaintiff deposes that certain items of furniture at Hilledge Lane did not vest in her.

It transpired that the motor vehicle was the property of the company, and thus the deceased had no power to dispose of it. However, that vehicle remains in the possession of the plaintiff, and Karen indicated in evidence that "we [either Karen and Linda as residuary beneficiaries, or Karen and David as executors] were happy for her to have it. That's what Dad wanted her to have". (It is to be assumed that whoever now controls the company is a party to that decision.) The daughters have made no challenge to the provision for the plaintiff contained in the will. There appears to be no other person, besides the plaintiff, the daughters and their families, as to whom it might be said that the deceased had any relevant obligations or responsibilities. Paragraph (f)

Values for the assets and liabilities of the estate are set out in David's affidavit sworn on 13 August 2002 in his capacity as executor. Counsel for the plaintiff did not challenge the contents of that affidavit, save as to three properties, namely Hilledge Lane, a house and land at Eildon ("Eildon"), and a factory and land at Bayswater North. The two sets of estimates are set out below, showing a difference of about $138,000:

The defendants' figures derive from kerbside valuations only and the plaintiff's figures appear to have no formal basis at all.

The calculation of the value of the estate, according to David's estimates, may be summarised as:

The defendants' estimate of the value of the estate is therefore about $1.36 million. If the figure of $138,000, being the additional value ascribed to the properties by the plaintiff, is added to that total, the plaintiff's estimate of the total value is about $1.5 million. Given the informal basis of the valuation, there is little purpose to be served by analysing the material in detail in order to resolve the differences. Paragraph (g)

David said in evidence that he did all the book work for the company from the time when the business began. His evidence was that "this saved Bob's business money on accounting fees", from which I assume that he was not remunerated for that work.

In cross-examination David agreed that he had presented accounts to the company's accountants for income tax purposes which he knew presented a false picture of the company's trading, which enabled the company to avoid income tax and deceive its auditors. This evidence is relevant to the credibility of David.

The plaintiff gave evidence that the deceased said to David in her presence that he wanted David to find out what was owing on the mortgage and pay it out. At the request of the deceased she made a telephone call to the mortgagee on 17 or 18 September 1999 in David's presence and ascertained that $105,000 would suffice to pay out the loan. David denies that the request was made to him by the deceased, denies that the telephone call took place, and says that the deceased was fully aware at the time that there was approximately $100,000 owing on the mortgage and did not need to ask the mortgagee. Either way, I find that the deceased would have been aware at the time of making his will on 24 September 1999 that the amount required to pay out the mortgage was approximately $100,000. However, for reasons which appear at [24] below, I would prefer the evidence of David to that of the plaintiff on this matter. Had the deceased wished to direct in his will that the mortgage be discharged out of residue, he could have done so. The plaintiff agreed in evidence that the deceased would have been aware that she would be entitled to something under the property settlement with Steven arising out of her divorce proceeding. Paragraphs (g) and (h)

Hilledge Lane was purchased in 1996 and the plaintiff deposed that she contributed $58,000 to the purchase price, which was used as the deposit, the deceased contributed $12,000, and the balance was funded by a loan from FAI, secured by a mortgage. She deposed, however, that Hilledge Lane was purchased in the sole name of the deceased "because at that stage we were both still married and thought it would be less complicated if the title was only in the name of one of us." It should be noted that, although in her affidavit of 13 June 2001 she states that the balance due on Hilledge Lane was "paid by way of a joint loan", she was not a party to the mortgage of Hilledge Lane, and accordingly had accepted no liability for the repayments under the loan secured by the mortgage. There is no documentary evidence that she had accepted such a liability. She conceded that she had given no instructions to the solicitors who acted on the purchase as to her having any interest in the property. Paragraphs (g) and (k)

On 21 September 1999 the deceased arranged for the repayment of $60,000 of the amount owing to FAI on the house loan. David deposes as executor that from the death of the deceased until 30 June 2001, the regular repayments of that loan were made by the estate. An amount of $9,194.80 in that regard appears in the accounts of the estate as a loan to the plaintiff. The plaintiff deposed on 13 June 2001 that "I have mainly serviced the FAI loan since Bob's death**.** The repayments were being directly debited from an account in Bob's name. That ceased in or around May 2000. I have made all payments since then." I prefer the evidence of David, given in the context of his role as executor, and find that the plaintiff commenced making the repayments on the loan from 1 July 2001. Paragraph (g)

The plaintiff deposed that she believed herself to be a part owner of Hilledge Lane and Eildon because of her contributions [1] . She was asked why, in that case, she had not disclosed her interest in Hilledge Lane in her affidavit sworn on 29 February 2000 in the Family Court proceedings between herself and Steven ("the Family Court affidavit") as to her assets at the date of separation, 28 May 1998. She replied that if she had done so, Steven would have expected half of that house, and that no-one knew about Hilledge Lane except the deceased and herself. Asked whether she was prepared to commit perjury in the Family Court, she replied "Yes, and so was Bob [i.e. the deceased]."

Despite what she had deposed to about the ownership of the house [2], when she said in oral evidence she said "It was put in Bob's name for a purpose", and was asked what that purpose was, she replied:

I still hadn't gone through my property settlement, he was going through his, he had no intentions of mentioning it in his, when I went through mine, if Bob had been still alive he wouldn't have wanted to give half his house to Steve.

Asked whether she was prepared to keep that asset from judgment in the Family Court, she replied, "I suppose so".

She said in evidence that she had $43,000 in a Commonwealth Bank account at the date of separation, but again said that that asset had not been listed in her affidavit of 29 February 2000 because she wished to keep it from the knowledge of her husband.

She deposed that she was the owner of two motor cycles, a Kawasaki valued at $7,900 and a BMW valued at $18,000, both of which were registered in the name of the deceased. She had paid for one and contributed to the payment for the other, but they were registered in the name of the deceased, again because she did not want Steven to be able to claim an interest in them in the Family Court proceeding.

It is clear that the plaintiff regards it as appropriate that she should lie on oath in order to benefit herself, regardless of the truth. Her evidence in this proceeding, where it is challenged, or where it is unsupported as to matters where support would have been expected, cannot be relied upon.

The plaintiff was cross-examined at some length about the source of the money which she claimed to have contributed to the purchase of Hilledge Lane, Eildon, and the motor cycles. I cannot be satisfied, on the evidence before me, that that money was paid from her own resources. Much of her evidence on the subject is highly improbable, not to say fantastic.

Some $77,000 was paid into the plaintiff's account at the Bank of Melbourne between November 1995 and January 1998. She claims to have paid some of that money out of $40,000 cash which she had kept in the safe at the matrimonial home at Wantirna. However, her former husband, who had a key to the safe, said in evidence that he never saw that money in the safe. She said that the reason for keeping the money in the safe rather than in an interest-bearing bank account was that if she earned interest she would have to pay tax on it. She said that she was paid award wages by the company, amounting to some $30,000 a year. However, she said that until she left the matrimonial home, her husband was paying all the household expenses, and she made no contribution to the household at all. She would pay her husband pocket money out of his wages, and he did not know what happened to her wages. She would carry around up to twenty of her pay packets in her handbag at one time rather than banking them, and she took pride in banking every penny which she earned.

However, in the Family Court affidavit she deposes:

That in April 1989 I started working as a secretary full-time. The children had started to attend private schools and I needed a more secure job to pay for the fees and the other expenses we had. This included paying off the house, building a spa and having extensive paving done around the house. We also built a brick front fence and a six foot brick side fence which I paid for.

She deposes further in that affidavit that at some time after 1993:

we started to retain our discretionary income and to use it for our own individual purposes after we had paid the general housekeeping and school expenses. . . . during this period I saved my extra money to purchase an investment property. The husband refused to have anything to do with the purchase of the unit. . . . I also purchased two cars for the children when they were 18 years old.

She claimed to have made money by gambling, to have received loans from the deceased, and to have had a gift of some $20,000 from her sister who is now dead. No other evidence was adduced in support of any of these claims, and the inconsistency between her evidence to this Court and to the Family Court is manifest. Paragraph (k)

However, it is not in issue that the plaintiff and the deceased lived as man and wife after she separated from her husband and until the death of the deceased. The evidence of the plaintiff is that during that period they paid some bills out of his account and some out of hers. She was still working in the business and being paid. The evidence does not enable me to determine whether and if so to what extent or on what basis the deceased had accepted any responsibility towards the plaintiff, although that finding is, of course, not conclusive as to whether he had such a responsibility. I note her evidence as to the descriptions of the rings referred to in [10] above. On 16 July 1999 she swore an affidavit in the Family Court seeking an abridgment of time for the obtaining of a decree nisi on the grounds of her intention to marry when free to do so and the serious illness of the deceased**.** However, no marriage took place. It does not appear from the evidence that any other person has any liability to maintain her. Paragraphs (m) and (n)

I cannot be satisfied that the plaintiff made any quantifiable contribution not for adequate consideration to the building up of the estate. Paragraph (k)

The plaintiff deposed on 30 June 2001 that she had $45,000 invested in a Commonwealth Bank Income Fund, paying 5.8% per annum, $36,000 in a cash management account, earning 4.4% per annum, and 600 shares in Telstra She was receiving a pension of $363.00 per fortnight, and her income from her investments averaged $80 per week. In the same affidavit she deposes that "I have no income of my own". It is not clear what that sentence was intended to mean. She said that she was servicing the FAI loan, on which at that date there was an amount of $91,656.42 owing [3] . She had a credit card debt of $3,000. At the date of the deceased's death she had had $35,000 in bank accounts, and she had subsequently received $126,000 as her share of the proceeds of the property settlement with her former husband. She said that her expenses exceeded her income, and since the death of the deceased she had been running down capital. Paragraph (h)

She said in evidence, with supporting documentation, that she now had $47,000 in Commonwealth Bank investment funds, $700 in a Commonwealth Bank savings account, $219 in a National Bank account, $13,799 in a Commonwealth Bank cash management account, and 600 Telstra shares. There was $86,124 owing on the house loan and she owed $2600 on a credit card. Her pension was $427 a fortnight, and last year she had investment income of $2,200, giving her a total annual income of some $13,300.

Asked about her present state of health, the plaintiff replied:

I'm waiting to have an operation on my bowel. I suffer with depression, I have medication for it, I haven't been well over the last three years, I've had several operations. And a lot of it is through stress. . . . I could do with a new pair of glasses. I'm worn out, I'm stressed, I have a back problem where if I do anything that's too physical I end up in bed.

She had earlier said that she was receiving a disability [support] pension, but did not indicate what was the impairment which qualified her for that payment [4] . No medical or other evidence was adduced in support of any of these statements. I note that the plaintiff was represented by experienced solicitors and counsel.

There is no evidence of any physical, mental or intellectual disability of either of the daughters. The quality of the relationship of the daughters with the deceased varied over time, but they were reconciled when he became ill with cancer. Little purpose would be served by analysing the detailed accounts of those relationships over the years. For the reasons stated above, where the evidence of the plaintiff and the daughters conflicts, I would prefer the evidence of the daughters to the evidence of the plaintiff. Paragraph (i)

Karen and David were married in 1986, and have three daughters, Keisha born in 1989, Tiahnne, born in 1990 and Diandra, born in 1994. In 1994 or 1995 David unwillingly left the company where he had worked for 13 years, and in mid 1995 he and Karen bought a newsagency. This was not a success. Karen deposed that the deceased helped them with advice at this time. David obtained another position and ultimately the newsagency was sold at a substantial loss. David and Karen have sold their house, in part to enable them to pay for their elder daughter to attend Tintern Girls Grammar School ("Tintern"). Karen is working 26 hours a week at Myers Eastland, earning approximately $13 per hour, and is also employed by AMC as a personal assistant earning $28,000 per annum. David is employed at AMC on a salary of $72,000 per annum plus two cars, superannuation and bonus. Karen said in evidence that they would, in their present financial position, be unable to send their children to the school of their choice. Tiahnne has learning difficulties, and Tintern has special expertise in that sort of problem. Karen and David have assets totalling $297,993.83 and liabilities totalling $136,360.63, giving net assets of $161,633,20. That statement takes no account of the need to finance the purchase of their new house by a loan of some $200,000. Paragraph (h)

Linda and her husband ("Lawrence") were married in 1984 and have three children, Brenton, Elyse and Ashleigh, born in 1986, 1989 and 1993. Lawrence has a business jointly with his father's estate in which he and Linda are both employed, Lawrence on a salary of $50,000 and a car, Linda on a salary of $28,000 and a car. Lawrence's share in the business was valued at $97,020 (there appears to be a miscalculation in the court book) in March 2001. They have assets totalling $650,643 and liabilities totalling $200,460. Their son Brenton proposes to study engineering at a TAFE college, and they wish their two daughters to commence at Caulfield Grammar School in 2003 and 2006 respectively. Linda said in evidence that they would be able to afford to send "maybe one, not two" of the girls to that school. Paragraph (h)

The evidence does not indicate that the deceased gave any significant benefits to his daughters after they became adults and were no longer dependent on him. Paragraph (h)

Karen and Linda said in evidence that the plaintiff told them that if their mother, the deceased's first wife, or his second wife, Beth, or a friend of his named Peter Noone, came to the deceased's funeral she would have them removed by security guards. Each of the daughters would have wished their mother to be there. Karen said that her mother did not attend, because she did not want to cause trouble for her daughters. The plaintiff specifically denied in her second affidavit sworn on 12 February 2002 that she had told Beth that if she attended the plaintiff would have guards remove her, but in cross-examination she admitted that she probably had made that statement. I am satisfied that the statements quoted by the daughters were made. Paragraph (o)

A dispute arose between the plaintiff and the daughters as to the design of the headstone to be erected on the grave of the deceased in Lilydale Cemetery. It is not necessary for me to determine the rights and wrongs of that dispute. In the end, the plaintiff erected two headstones on adjoining plots. One commemorates the deceased, describing him as "devoted husband and soulmate of Patricia" and makes no reference to his children or grandchildren. The other commemorates the plaintiff, as "adored wife of Bob" and refers to her own two children and one grandchild. The daughters were distressed by the failure to refer to them and their children on their father's headstone. Paragraph (o)

The plaintiff deposes that "my age and secretarial skills are such that I am now no longer able to find employment". She is fifty years old. I note that the deceased's daughters are aged 44 and 41 respectively and are both working. The plaintiff gave no other evidence as to any deficiency in her secretarial skills. She was asked in cross-examination whether she wanted to work, and said, "Well if you can find me a position, I'll take it. At the wage I was receiving and in the position that I had." Later she said, "Well, considering I'm on my own and my living expenses are something like $39,000 a year, I would have to have a job that paid a little bit more. To live comfortably. And maybe stress-free for a change." She gave no evidence of any attempts to obtain work since the death of the deceased. Paragraph (h)

During the whole period when the deceased knew her, starting in 1989 and possibly earlier [5] , the plaintiff was in employment, and from 1989 she was employed in his business. She ran the business single-handed from April to September 1999 [6] . In evidence she said that in that period "When I said here that I ran the business, I ordered all the goods for the business, I organised the goods to leave the business, I paid the wages, I banked the cheques that came in, it was an every day general thing until the business got sold." The woman whom the deceased had in mind when making his will was obviously a competent member of the paid work force. There is no medical evidence to indicate that she is unable to work. The submission of Mr Boaden, for the plaintiff, that his client is "a mess psychologically and to some extent physically and medically" is unsupported by the evidence. Her weeping in the witness box does not lead to that conclusion; many witnesses, understandably, weep in the witness box. Karen also wept in the witness box. The plaintiff was well presented, and well able to cope with cross-examination. Her evidence that she is receiving a disability support pension was not accompanied by any indication of the basis on which she was receiving it, save for unsupported statements about her health [7] . I cannot find that she no longer has the earning capacity which she demonstrated over a number of years until the deceased's business was sold in September 1999. Paragraph (h)

In Grey v Harrison [8] the Court of Appeal was concerned with a claim arising under the Act as it stood prior to the amendments to the Act effected by the Wills Act 1997. Callaway JA, with whom Tadgell and Charles JJA agreed, adopted the test stated by Salmond J in Re Allen; Allen v Manchester in the following words [9] , and approved on many occasions:

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.

. . . 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. So much may be derived from the concept of "proper" maintenance and support but also, and more fundamentally, from those considerations.

Those passages are equally applicable to the amended legislation, which extends the Court's discretion from the power conferred in the earlier legislation to make orders for the provision for the proper maintenance and support of a widow, widower or child to the power to make such orders in respect of "a person for whom the deceased had responsibility to make provision" (section 91(1)).

Thus the legislation now has the effect that in the case of a claim on the estate of a deceased person who died on or after 20 July 1998, the Court must first consider, as a jurisdictional question, whether the claimant is a person for whom the deceased had responsibility to make provision ("the first question"), before turning to the question as to whether the distribution of the estate effected by the will of the deceased made adequate provision for the proper maintenance and support of that person ("the second question") [11] .

The second question has received much judicial examination over the years, some of which is inevitably relevant to the consideration of what is now the first question. Mason CJ and Deane and McHugh JJ in their joint judgment in Singer v Berghouse [12] said of the second question:

the correct view is that [that question] is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.

That passage seems to me to be equally relevant to the first question, the evaluative character of which stems from the need to determine whether the deceased had responsibility to make provision for the applicant.

It is clear from the authorities on legislation similar to the provisions of the Act as they stood prior to 20 July 1998 that the second question falls to be answered as at the date of death of the testator. Dixon CJ said in Blore v Lang [13] :

Now the first question which s. 3 (1) of the Testator's Family Maintenance and Guardianship of Infants, Act 1916-1954 sets for the court is whether the testator disposed of his property, either wholly or partly by will in such a manner that his daughter, the respondent, was left without adequate provision for her proper maintenance education or advancement in life. It is upon the fulfilment of the condition expressed by these words that the authority of the court to intervene depends, its "jurisdiction" as it is commonly expressed with more respect for the language of Chancery tradition than for juristic theory. The nature and effect of the condition has of course been much examined judicially. It is settled that you look at the circumstances as they were at the time when the testator died and not at the time when the application is made to the court. But the contingencies which a testator ought reasonably to have foreseen are not to be left out of view: Dun v. Dun [1959] UKPCHCA 2; (1959) 100 CLR 361 (PC); (1957) 99 CLR 325 (HCA).

Fullagar J in Coates v National Trustees Executors & Agency Company Ltd [14] cited Evershed MR in Re Howell; Howell v Lloyds Bank Ltd [15] as saying:

I think, prima facie, at any rate, that it must be right to judge this matter, whether the testator was unreasonable, in the light of the circumstances which did present, or should have presented, themselves to him up to the moment of his death.

Those passages prima facie seem to me to be equally applicable to the consideration of the first question. If the issue is whether the deceased carried out his moral obligation to use his testamentary powers for the purpose of making proper and adequate provision after his death for a person for whom he had responsibility to make provision, the circumstances which go to the determination of whether the plaintiff is such a person must be decided on the basis of those circumstances which were or should have been known to the testator at the time when he used those powers.

However, I note the requirement of paragraphs 91(4)(a) and (b) of the Act that in considering both the first and the second questions the Court "must have regard to" the matters set out in paragraphs (e) to (p) of sub-section 91(4). Paragraph (h) reads, with emphasis added:

(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;

These are matters which it cannot be assumed were or should have been known to the deceased at the time of making his testamentary dispositions. However, given the specific inclusion of the emphasised passage in paragraph (h) and in no other paragraph of sub-section 91(4), it is to be assumed that Parliament had in mind when enacting that provision the rule that Acts altering the common law should be construed as doing so only so far as is necessary to give effect to their provisions. [16] Thus the principles set out in the passages cited in [46] above still apply in relation to the other matters listed in the sub-section to which the Court is required to have regard.

A person for whom the deceased had responsibility to make provision

Whether or not the deceased had a responsibility to make proper provision for the plaintiff is, as I have said, a question of fact [17] . Section 91(4)(a) now requires that, in considering that question, the Court must have regard to all of the matters set out in paragraphs (e) to (o) of that sub-section as well as any other matter the Court considers relevant (paragraph (p)). I have sent out above my findings of fact, and referred those findings to the relevant paragraphs of the sub-section.

In considering this question I have had regard to all of those matters, and in particular to those facts which appear in [5] to [13] and [29] above. Mr Boaden submitted that as the plaintiff had left a husband who was a good provider and cast in her lot with the deceased, that "created a very high degree of responsibility" in him towards her. However, the plaintiff was in employment at the time when that occurred, and continued in employment; she had no need to be dependent upon anybody. Further, her evidence that her husband was such a good provider that she made no contribution to the matrimonial finances and was entirely supported by her husband until she left the matrimonial home is both improbable and inconsistent with her Family Court affidavit, and I am not in a position to accept it.

Some of the plaintiff's evidence as to the relationship between herself and the deceased, particularly as to the period before she left her husband, is also improbable. However, that relationship was clearly a close and loving one. Although the actual period of shared life in the house at Hilledge Lane was relatively short, I accept that the relationship had been in existence for some time before that, on a working as well as a domestic basis. To borrow the language of section 275 of the Property Law Act 1958 as amended by the Statute Law Amendment (Relationships) Act 2001, from 28 May 1998 until the time of the deceased's death, the plaintiff and the deceased were "living . . . together as a couple on a genuine domestic basis".

I note in particular that the deceased's daughters have not challenged the provision made for the plaintiff by their father in his will, and have allowed her to retain the motor vehicle although it was not his to bequeath. That behaviour seems to me to indicate a perception in the daughters, whose knowledge of the relationship between the plaintiff and their father would be far greater than that of the Court, that that relationship was such that their father had a responsibility to make provision for the plaintiff.

Having regard to the matters to which I have referred, I find on balance that the deceased did have a responsibility to make provision for the plaintiff.

It is to be noted, however, that section 91 as amended in 1998 confers on the Court a discretion to be exercised in favour of "a person for whom the deceased had responsibility to make provision", not "a person dependent on the deceased" or "a person wholly dependent on the deceased" or "a person whom the deceased had sole responsibility to support". A finding that the deceased had responsibility to make provision for the plaintiff is not to be taken as a finding that she was wholly or partly dependent upon him, or that he had the sole responsibility for her support.

Adequate provision for proper maintenance and support

The second question then arises: whether the distribution of the estate of the deceased effected by his will "does not make adequate provision for the proper maintenance and support" of the plaintiff. There is much authority as to the duty of the wise and just testator towards his widow. Mr Boaden referred me to Luciano v Rosenblum [18] where Powell J said:

It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

It is to be noted that the style of living to which the plaintiff was accustomed at the death of the deceased involved working full-time in the deceased's business and being paid award wages for that work.

More recent authority is also of relevance to this question. Toohey J in Singer v Berghouse [19] referred to the need to take into account in that context "the changing position of parties to a marriage or de facto relationship, including the heightened earning capacity of women", and the Court is specifically required by section 91(4)(h) to have regard to the earning capacity of the claimant. Of course, each case must be considered on its own facts, and in Collicoat v McMillan [20] Ormiston J referred to the particular responsibility of "testators seeking to dispose of estates in circumstances where those with moral claims can point to an upbringing and background reflecting at least in part the experience of other eras" when many women were not trained to earn a living, and a woman who was able to earn a living was expected to cease doing so on marriage. That is not this case.

Section 91(4)(b), like section 91(4)(a), requires that, in considering the question as to whether or not the distribution of the estate of the deceased as effected by the will makes adequate provision for the proper maintenance and support of the plaintiff, the Court must have regard to all of the matters set out in paragraphs (e) to (o) of that sub-section as well as any other matter the Court considers relevant (paragraph (p)). I have set out above my findings of fact, and referred those findings to the relevant paragraphs of the sub-section.

In considering this question, I have had regard to all of those matters, and in particular to those facts which appear in paragraphs [4] to [8], [12] to [14], [17], [19], [23], [24], [29] to [32], [35], [36], and [38] to [41]. I note that the question relates to "the distribution of the estate of the deceased person effected by his or her will" and accordingly the forbearance of the company in allowing the plaintiff to retain the Statesman motor vehicle is not a strictly relevant consideration. However, it is relevant, in the context of the plaintiff's present financial resources and financial needs, that she does have a Statesman motor vehicle, and that Karen stated on oath that "we were happy for her to have it". And it is also relevant that, in purporting to leave her the vehicle, the deceased may be assumed to have been acting in the performance of what appeared to him to be his moral duty.

As Salmond J said in Re Allen [21] the legislation:

was 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.

Thus in considering whether adequate provision was made for the proper maintenance and support of the plaintiff, it is necessary to consider the position of the two other beneficiaries, their means and deserts and their moral claims upon the bounty of the deceased (and see paragraphs 91(4)(f) and (h)). Their respective financial positions are set out in [35] and [36] above and by virtue of paragraph (h) I must have regard to their financial situation at the date of the hearing and for the foreseeable future. I note that Mr Boaden in his submissions on behalf of the plaintiff made almost no reference to any obligation of the deceased to his daughters.

The plaintiff received under the will a house, its contents and an amount of money which the deceased would have known was enough to pay off the mortgage over the house; the total value of these items, after deduction of the loan owing on the house, can be taken to be $437,500. This sum is calculated as follows:

Looking at the calculations in [14] above, if the total value of the estate is taken as $1.5 million, she received a little under than one-third of that amount. If the total value is taken as $1.36 million, she received about one-third of that amount.

The plaintiff has chosen not to resume employment, and to reduce her capital. From [31] above it appears that at the date of the deceased's death she had $35,000, and she subsequently received $126,000 under the property settlement. She deposes that she now has $91,000 and 600 Telstra shares, and is receiving a pension. Paragraph 91(4)(h) requires me to have regard to her financial situation as at the date of the hearing and in the foreseeable future; but in doing so, I must also have regard to the reasons why her financial situation is as it is.

During her life with the deceased the plaintiff was in full-time employment, and on the evidence before me I cannot find that she has lost her earning capacity. Thus she is in a position to maintain herself in the foreseeable future. Both of the daughters are in employment, (Karen certainly, and Linda probably, part-time) despite each having three children. It may be said that in each of the daughters' households two people are working to support five people, three of whom are being educated. The need to educate those six children will affect the financial situation of their mothers in the foreseeable future. I am not satisfied of any reason why I should interfere with the dispositions of the deceased by ordering that further payment be made to the plaintiff to maintain her in early retirement at the expense of his daughters.

The deceased, in a will made only a few days before his death and in the knowledge that the plaintiff would be receiving a payment under the property settlement, left to her the house and its contents and a sum of money which could be looked at either as enough money to pay off the mortgage, or as a nest egg, if she preferred to make regular repayments under the mortgage out of income. He also left her the car, which was not his to dispose of, but which she has, in the event, retained. He knew her as a person in employment and those dispositions would indicate that he considered that she would continue in employment after his death.

In my view, taking into account all of the matters to which I am required to have regard, the deceased, acting consistently with the authorities, as a wise and just husband and father, considering, at the time when he made his will, the means and deserts of the several claimants upon his bounty, did not abuse his right to dispose of his property as he thought fit. I find that, on that basis, the distribution of his estate as effected by his will made adequate provision for the proper maintenance and support of the plaintiff. The plaintiff's claim accordingly fails.

[11] See the thoughtful consideration of these questions by Harper J in Schmidt v Watkins [2002] VSC 273 at [6] to [25]

[16] See Burchett and Ryan JJ in Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317 at 329 and the cases there cited.

Testator's Family Maintenance and Guardianship of Infants, Act 1916

At a glance

Court

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Before

Source

Judgment (113 paragraphs)

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Legislation Cited (8)

Cases Cited (6)