Higgins v Wilkinson [2017] VCC 1534 (27 October 2017)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

Not Restricted

Suitable for Publication

BRIANNA HIGGINS	Plaintiff

v

JENNIFER WILKINSON (as Executor of the Will of Wayne Kelvin Higgins, deceased)	Defendant

JUDGE:	HER HONOUR JUDGE KINGS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2017
DATE OF JUDGMENT:	27 October 2017
CASE MAY BE CITED AS:	Higgins v Wilkinson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1534

Catchwords: Application under Part IV of the Administration and Probate Act 1958 – deceased survived by wife and adult daughter of first marriage – claim by the plaintiff daughter for further provision out of the estate for her proper maintenance and support

Judgment: The plaintiff’s application for further provision from the Estate of the deceased is dismissed.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S G R Wilmoth	Bartram Lawyers

For the Defendant	Ms R G Morison	Hassall’s Litigation Services

1 By Originating Motion filed on 15 August 2016, the plaintiff makes application to the Court for further provision from the Estate of Wayne Kelvin Higgins, the deceased, for her proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”).

2 On 1 May 2015, the deceased died from cancer at the age of fifty-three years. The deceased was survived by his wife, Barbara Dawn Hassall (“Ms Hassall”), and his daughter, Brianna Higgins, the child of his first marriage.

3 By his Will dated 13 January 2015, the deceased appointed his sister, Jennifer Wilkinson, as the Executor of his Will and Trustee of his Estate. By his last Will, the deceased left his Estate as follows:

• An Apple iMac computer to be gifted to the plaintiff (“the computer”); and

4 On 16 February 2016, Probate of the Will was granted to the defendant. The evidence was that the defendant only made an application to probate the Will in order to obtain the deceased’s long service leave entitlements from the Department of Education and Training.

5 It was accepted between the parties that the computer was gifted to the plaintiff by the deceased during his lifetime. The parties agreed that the computer was valued at approximately $2,500 at the date of death.[1]

6 As at 27 January 2016, the defendant filed an inventory of assets and liabilities of the deceased’s Estate, which stated as follows:

• Department of Education and Training unused long service leave balance of $7,836.27

7 It follows that, once liabilities are subtracted, the deceased’s Estate comprising of cash and chattels is worth approximately $40,315.53 in total. Accordingly, the Estate is a small estate within the meaning of s71 of the Act, being valued at less than $104,870.00.

8 Counsel for the plaintiff told the Court that after the legal costs of obtaining Probate of the Will and defending the proceeding to the judicial settlement conference in May 2017 were deducted from the cash component of the Estate, nothing remains. I was told the defendant and Ms Hassall have personally paid money into the Estate to fund the defence of this proceeding.

9 Prior to the issue of this proceeding, on 4 August 2015, the plaintiff instructed her solicitors to lodge a caveat against a property registered in the name of Ms Hassall, being 80 Cook Road, Longwarry, Victoria 3816 (“the Longwarry property”). The plaintiff asserted that she had an implied, resulting or constructive trust over the Longwarry property (“the caveat proceeding”). Counsel for the plaintiff told the Court that the Longwarry property should form part of the deceased’s Estate.

10 By reason of the deceased’s date of death, the plaintiff’s claim for further provision is governed by the amendments to the Act as contained in the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, which came into effect on 1 January 2015.

11 The plaintiff makes an application under s90A of the Act that the Court make a family provision order in her favour. Pursuant to s91(1), the Court is given the power to order that, upon application under s90A of the Act, provision be made out of an estate of a deceased person for the proper maintenance and support of a person for whom the deceased had the responsibility to make provision.[6]

12 Pursuant to s91(2), the Court must not make such an order unless it is satisfied of the following:

• That, at the time of the deceased’s death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support;[8] and

• That the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person.[9]

13 In making its determination, the Court must take into account the factors outlined in s91A(1), which are:

• Any evidence of the deceased’s reasons for making the dispositions in the will, if any; and

• Any other evidence of the deceased’s intentions in relation to providing for an eligible person.

14 Further, the Court may have regard to the factors outlined in s91A(2), which are listed as follows:[10]

• The nature of the relationship, including the length of relationship, if relevant;

• Any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries;

• The current and future financial resources, earning capacity and financial needs of the eligible person and any beneficiary;

• Any physical, mental or intellectual disability of any eligible person or any beneficiary;

• Any contributions (not for adequate consideration) of the eligible person to building up the estate or to the welfare of the deceased or the deceased’s family;

• Whether the eligible person was being wholly or partially maintained by the deceased, and if so, the extent and basis of such maintenance;

• The effect that a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries; and

15 The factors that are relevant to determine the amount of provision the Court should award are set out in s91(4)(a) to (d), and relevantly include:

• The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

• The degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of the eligible person.

16 Pursuant to s91(5), the Act requires that the amount the Court awards must not provide for an amount greater than is necessary for the eligible person’s proper maintenance and support.[11]

17 The authorities have established that whether or not the deceased had responsibility to make provision for a person, the Court must be satisfied there was a moral duty to do so and the testator ought to have given provision as a “just and wise” testator.[12]

18 In Lee v Hearn,[13] Callaway JA said that “responsibility” to make provision meant a legal or moral responsibility, according to the sense in which “moral” has been explained in the authorities. He used the words “what a wise and just testator would consider his or her moral duty”[14] and said that this may change with time or in response to community standards.

19 Ormiston J, as he then was, in Collicoat & Ors v McMillan & Anor,[15] discussed the concept of “moral duty” and “moral obligation”.[16] At paragraph [43], he said:

20 Typically, the courts have recognised that adult children have a powerful claim on the bounty of their parents, in that the relationship of a child and parent “carries with it a well-recognised obligation”.[17]

21 In Walsh v Walsh,[18] Hallen J helpfully summarised a number of general principles in relation to claims made by adult children:

• It is impossible to describe the moral obligation or community expectation of a parent in respect of an adult child in terms of universal application;

• Generally, the community does not expect a parent to look after his or her child for the rest of the child’s life and into retirement;

• There is no need for an applicant child to show some special need or some special claim in order to be entitled to further provision.

22 The nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant is not fixed or static but instead a flexible concept.[19] What constitutes adequate provision for the proper maintenance and support of an applicant involves a consideration of the mandatory and discretionary matters under the Act.[20]

23 In Brimelow v Alampi,[21] McMillan J described the determination of the ultimate question as follows:

25 The plaintiff relied upon a position statement filed on 28 February 2017 and gave evidence, was cross-examined and re-examined in Court. The defendant relied upon a position statement filed on 27 February 2017. The defendant and Ms Hassall gave evidence, were cross-examined and re-examined in Court. In my view, all of the witnesses answered questions directly, made appropriate concessions and impressed me as truthful.

27 The plaintiff was born in February 1996 and is now twenty-one years old. The deceased and the plaintiff’s mother separated when the plaintiff was two years old. Until she was sixteen years of age, the plaintiff said she spent every second weekend with the deceased including every Father’s Day, Christmas and Boxing Day in alternate years and half of every school holidays. The plaintiff received benefits from the deceased by way of child welfare payments until she attained eighteen years of age.[23]

28 The plaintiff said her relationship with the deceased was negatively affected when he married Ms Hassall on 11 March 2002. At the time, the plaintiff was six years old. The plaintiff said that the relationship was detrimental to the plaintiff’s wellbeing. She said she no longer wished to see her father at the Longwarry property in which the deceased resided with Ms Hassall. The plaintiff said the deceased instead visited her every second weekend for a few hours.[24]

29 The plaintiff said that she and the deceased often discussed his work and music and that she attended a number of his musical performances. The plaintiff told the Court that she maintained contact with the deceased during the last years of his life and up until his death.[25]

30 The plaintiff’s evidence was that she was under the impression that Ms Hassall paid for the motor vehicle that formed part of the deceased’s Estate.[26] The plaintiff said she also thought she had a basis for filing the caveat. Her evidence was that the caveat was lodged to ensure that the Longwarry property was not sold during this proceeding.[27] She agreed that she did not contribute to the property by way of payment towards the purchase, upkeep or mortgage repayments or rates.[28]

31 Currently, the plaintiff is twenty-one years of age, single and lives independently.[29] In 2016, the plaintiff graduated with a Bachelor’s degree in Psychology from Deakin University and she intends to commence a course in Applied Science in 2018.[30] She has no savings or investments and has no other assets than personal chattels. She is a part-time employee at Officeworks and earns $13,620.00 per year in net income. Her weekly expenses are approximately $340.00.[31] In cross-examination, the plaintiff agreed that any difference between her expenses and her earnings were covered by her mother until she recently moved out of home.[32] Her current Higher Education Contribution Scheme (“HECS”) debt is $30,000 and she expects to incur further debt when she continues her university studies in 2018. The plaintiff told the Court that she would use any further provision obtained from the deceased’s Estate to reduce her HECS debt.[33]

32 Ms Hassall told the Court that she and the deceased met at about the time she purchased the Longwarry property, although they were not living together at that stage. She gave evidence that she purchased the Longwarry property in July 1999 from the proceeds of a matrimonial settlement from her first marriage for $160,000, which was funded by a loan with the Bank of Western Australia of $120,000 secured by a mortgage. The only evidence of the current value of the Longwarry property was an assertion by counsel for the plaintiff that the property was valued between $500,000 and $550,000 with a current mortgage of $190,000. Ms Hassall said that the only asset the deceased brought into the relationship was his car.[34] She said that, although the motor vehicle was registered in the deceased’s name, and save for a deposit of $500, she paid all of the purchase price. She worked throughout her marriage at a shop in Pakenham, Western Wear Shop, for approximately fifteen years. Ms Hassall said that her mother died and left her some money, which she used to purchase a car for herself and the deceased, and pay off credit cards. At the time of her husband’s death, she was receiving a carer’s allowance.

33 Ms Hassall gave evidence that she thought that the arrangement whereby the plaintiff would visit the deceased at the Longwarry property was interfering with the plaintiff’s social life so the deceased would go to her every Saturday to teach her driving, have lunch and go shopping.[35] Ms Hassall agreed that she did not particularly get on with the plaintiff.[36] However, she agreed that the plaintiff’s relationship with the deceased was a “loving one”.[37]

34 Initially, the deceased was employed as a fitter and turner. By 2003, he was no longer working as a fitter and turner, although he occasionally did some local work while studying to obtain his teaching qualifications. Ms Hassall agreed that the deceased worked as a fitter and turner whilst he was studying but that it was not regular work. She also agreed that, on occasions, he could tutor students in music but that it was unlikely that he took students on because he was not well enough.[38] Ms Hassall agreed that the deceased played in a band and a duo and that he was paid for some performances and others were for charity. She disagreed that he was earning money as a teacher, tutor, band member and member of a duo all at the same time.[39] Ms Hassall was unsure how much the deceased earned. She agreed she was responsible for maintaining the deceased, both physically and financially, whilst he was unwell.

35 In around 2008, the deceased was diagnosed with cancer.[40] He was in his final year of a teaching degree. Ms Hassall said that the deceased commenced work as a teacher’s aide at Longwarry Primary school and was not earning a lot.[41] His position was for three days a week, which was reduced to two days a week, before he ceased work due to illness in August 2014.[42]

36 The evidence is that the deceased intended to undertake a bone marrow transplant. Ms Hassall told the Court that the deceased decided to spend some time at home in late April 2015. On or about 29 April 2015, the plaintiff attended the deceased’s home where the deceased gave the computer to the plaintiff, which formed part of the deceased’s Estate. This was confirmed by the defendant and Ms Hassall who were present at that time.[43] The deceased died one day later, on 1 May 2015.

37 The defendant gave evidence that a fundraising concert was held to raise money because, had the bone marrow treatment been successful, the deceased would not have been able to work for some time. The concert raised approximately $12,000.[44] The defendant told the Court that the money was used to reduce the deceased’s existing credit card debt as well as donating some of the money to the Royal Melbourne Hospital.[45]

38 Counsel for the plaintiff submitted that the deceased had a moral responsibility to provide the plaintiff with further provision from his Estate for the plaintiff’s proper maintenance and support. Counsel for the plaintiff submitted that proper provision from the deceased’s Estate would be used to reduce the plaintiff’s HECS debt of $30,000 and contribute to paying off the legal costs incurred in this proceeding.[46]

39 Counsel for the defendant submitted that, taking into account Ms Hassall’s competing moral claim on the deceased’s Estate as the wife of the deceased and the fact it is an extremely small estate, the computer given to the plaintiff in the deceased’s Will was adequate provision for her proper maintenance and support. Counsel for the defendant said the circumstances weighed against an order being made in favour of the plaintiff because it would be disproportionate and render the only other beneficiary’s entitlement to nil.[47]

40 The evidence is that the deceased made his last Will on 13 January 2015, which was after he was diagnosed with cancer in around 2008 and prior to being hospitalised for a bone marrow transplant from which he died approximately four months later, on 1 May 2015. The Will directed the defendant to gift the computer to the plaintiff and distribute the residue of his Estate to his wife.

41 It was not in dispute that the deceased carried out his testamentary intention by gifting the computer to the plaintiff himself prior to his death. The defendant told the Court that she was present when this occurred and that it was her view that the plaintiff seemed very grateful for the gift.[48] Ms Hassall described it as follows:

42 The plaintiff agreed that the deceased made sure she had the computer so that he could help her with her studies at the time.[50]

43 The defendant told the Court that the deceased did not communicate any intentions regarding the distribution of his Estate to her but that it was usual for him not to do so.[51] She said she found out that the deceased had appointed her as Executor of his Will one week prior to his death.

44 In respect to the deceased’s intentions regarding the distribution of his Estate, Ms Hassall told the Court:

45 On this evidence, I consider that the deceased, in his Will, intended to provide Ms Hassall with the residuary of the Estate as a small nest egg within an extremely small estate to provide for her future.

Discretionary factors under s91A(2) of the Act in making a family provision order

(a) The relationship between the deceased and the plaintiff including the nature and length of the relationship

46 Based on the evidence of the plaintiff and Ms Hassall, I take the view that the plaintiff had a longlasting and loving relationship with her father, which involved spending regular time with each other. I consider that the plaintiff saw the deceased less frequently after she turned sixteen years old but that they maintained a close relationship nonetheless.

(b) Any obligations or responsibilities of the deceased to the plaintiff, any other eligible person and beneficiary

47 It was accepted between the parties that the deceased owed an obligation or had a responsibility to maintain his surviving spouse of thirteen years, Ms Hassall. I consider this a strong moral obligation to his wife. It is also evident, and was accepted between the parties, that the deceased owed an obligation to the plaintiff as her father. There are no other eligible persons or beneficiaries to consider.

48 Counsel for the plaintiff took issue with the extent and value of the deceased’s Estate. In particular, that the musical instruments were worth considerably more than $5,650, which was valued by Syndal Music Centre on 8 July 2015 on behalf of the defendant. I note that the plaintiff chose not to undertake her own valuation of the musical instruments and tender it before the Court. I therefore must accept that the musical instruments are valued at $5,650 based on the defendant’s valuation.

49 In the defendant’s position paper, the defendant refuted the plaintiff’s claim that any intellectual property and associated rights with music of the deceased were valuable.[53] Counsel for the plaintiff did not raise this as an issue at trial and I do not intend to consider it further.

50 Having regard to the liabilities and assets of the deceased’s Estate, the net asset position of the Estate is $40,315.53.

51 I also have regard to recent authorities on the size and nature of the Estate. His Honour Judge Saccardo considered a claim on an estate in the vicinity of $100,000 to be an “extremely small estate” in Farrugia v State Trustees Limited.[54] In Gibb v Gibb,[55] his Honour Justice McDonald considered a situation where the size of the estate had been significantly reduced by litigation costs and that an Estate of approximately $150,000 was a “small estate”.

52 In light of these authorities and the evidence before me, I consider an estate of $40,315.53 to be an extremely small estate.

(d) The current and future financial resources, earning capacity and financial needs of the plaintiff, any other eligible person and any other beneficiary

53 The plaintiff does not own her own home, has no savings or investments and no assets other than personal chattels.[56] She earns approximately $13,620.00 per year in net income and her weekly expenses are approximately $340.00.[57] The plaintiff agreed that any discrepancy between her earnings and expenses was covered by her mother until she moved out of home.[58] The plaintiff has a HECS debt of $30,000 and she intends to incur a further HECS debt when she undertakes further studies in 2018.[59]

54 I consider that the plaintiff is young, educated and has her adult life to earn money and establish an asset pool. She has a relatively small amount of debt, which is payable over time, depending on her income, and is a debt that most young adults incur through university studies.

55 There was little evidence put before the Court as to Ms Hassall’s financial position. She is the registered proprietor of the Longwarry property, which consists of a house on five acres of land, which is mortgaged. She worked for fifteen years at the Western Wear Shop in Pakenham. She could not remember what she earned. Counsel for the plaintiff submitted that the property was worth between $500,000 and $550,000 with a mortgage of $190,000 but no such valuation was tendered before the Court. Ms Hassall was not cross-examined as to the value of the property or the quantum of the mortgage on the property. Counsel for the defendant submitted that Ms Hassall was towards the end of her working life and that she does not have anyone else to maintain her now that her husband has died.

(e) Any physical, mental or intellectual disability of any eligible person or any beneficiary of the Estate

(g) Any contribution of the eligible person to building up the Estate or the welfare of the deceased or the deceased’s family

58 The plaintiff does not assert any contributions to building up the Estate of the deceased or to his welfare. I consider there is no such evidence of any such contribution to building of the Estate of the deceased or to his welfare.

59 Ms Hassall made strong financial contributions to the deceased, including providing him with a home, support whilst he completed a teaching degree, the purchase of a motor vehicle and maintaining the deceased when he ceased work in August 2014. Further, Ms Hassall cared for the deceased during their marriage, the seven years the deceased suffered from cancer and then when he was in palliative care. I consider Ms Hassall made significant contributions to building up the deceased’s Estate and to the welfare of the deceased.

(h) Any benefits previously given by the deceased to any eligible person or to any beneficiary

60 The plaintiff received benefits throughout her lifetime from the deceased by way of child welfare payments. I can infer that Ms Hassall would have received benefits from a marriage with the deceased; however, the evidence is that most if not all of the assets brought into the marriage were from Ms Hassall.

(i) Whether the eligible person was being maintained by the deceased before the deceased’s death, either wholly or partly

61 Although the deceased paid child support payments until the plaintiff reached eighteen years of age, she was an adult at the time of the deceased’s death. The evidence is that the plaintiff lived with, and was financially supported by, her mother during her childhood up until recently, when she chose to move into rental accommodation. In the absence of evidence, I do not consider that the plaintiff was being maintained by the deceased at the date of his death.

62 In Court, the plaintiff acknowledged that any shortfall between her income and expenses was covered by her mother. In the plaintiff’s position paper, she acknowledged that she was financially supported by her mother.[60] Although she has now moved out of home, I can infer that the plaintiff’s mother will continue to support her as she did during her childhood but to a more limited extent.

63 Counsel for the plaintiff raised the soured relationship between the plaintiff and Ms Hassall as having an impact upon the plaintiff’s relationship with the deceased. Counsel for the plaintiff submitted that it was not the plaintiff’s social life that prevented contact, as alleged by Ms Hassall, but it was Ms Hassall’s behaviour towards the plaintiff that prevented visiting her father at the Longwarry property. Ms Hassall acknowledged that she and the plaintiff did not get on particularly but denied this deterred the plaintiff from attending her home.

64 Counsel for the defendant submitted that it was not relevant in my consideration. On the evidence, including from Ms Hassall, the plaintiff maintained a good relationship with his daughter, the plaintiff. Accordingly, I do not believe any such past conduct of Ms Hassall towards the plaintiff, whether true or not, is relevant to my consideration.

(l) The effects a family provision order would have on the amounts received from the deceased’s Estate by other beneficiaries

65 I accept counsel for the defendant’s submission that any family provision order made in favour of the plaintiff would have an adverse effect on the amount available for Ms Hassall, in that almost nothing would remain in the Estate.

66 The Estate comprises of a Bankwest savings account in the amount of $2,379.26 and unused long service leave payments from the Department of Education and Training in the amount of $7,836.27. Accordingly, the Estate comprises of approximately $10,215.50. If I was to make an order for further provision for the plaintiff, it would necessarily mean that some or all of the chattels be sold in order to satisfy the order. I note that Ms Hassall purchased the car for the deceased, save for $500.00 of the purchase price, which is the substantial asset of the Estate. Whilst this is a factor to consider, the fact that chattels may need to be sold does not prevent me from ordering further provision to the plaintiff from the Estate.

67 Counsel for the plaintiff submitted that the Longwarry property forms part of the deceased’s Estate, in that the deceased had an “inevitable” interest in the property.[61] Counsel for the plaintiff argued that the interest was held in part on an implied, constructive or resulting trust for the deceased, which was based on the principles in Muschinski v Dodds[62] whereby the Court could impose a constructive trust over the Longwarry property in favour of the deceased in proportion to his contribution to the property. Counsel accepted that there would be difficulties in quantifying any equitable interest that the deceased might have had. I consider that there is a lack of evidence to show that the deceased made any contributions to the Longwarry property. In fact, the evidence indicates to the contrary, in that Ms Hassall purchased the property with her own money prior to marrying the deceased. I accept counsel for the defendant’s submission that, even in the unlikely situation a Court imposed a constructive trust, the Longwarry property was held jointly by the deceased and Ms Hassall and therefore reverted to Ms Hassall upon the deceased’s death.[63] For the foregoing reasons, I do not accept that the Longwarry property, or an interest in it, forms part of the deceased’s Estate.

68 Counsel for the defendant submitted that Ms Hassall, in defending the caveat lodged by the plaintiff against the Longwarry property, incurred $24,336.85. In Court, the plaintiff acknowledged that she had not contributed any purchase monies towards the upkeep, any mortgage repayments or any rates repayments of the Longwarry property.[64] I accept that, in any event, the proper plaintiff alleging a trust as asserted in the caveat is the Executor of the Estate and not the plaintiff. Pursuant to s91A(2)(m), I take the costs incurred by Ms Hassall in defending the caveat lodged on the Longwarry property into account in my assessment.

69 I will now address the three questions as outlined in s91(2), which I must be satisfied of in order to make an order for provision.

70 The parties agreed that the plaintiff, as a child of the deceased, is an eligible person pursuant to s90(a) of the Act.

(ii) As of 1 May 2015, did the deceased have a moral duty to provide for the eligible person’s proper maintenance and support?

71 It was also not in issue between the parties that the deceased owed a moral duty to provide for the plaintiff, as his daughter, at the date of his death.

(iii) Did the distribution of the deceased’s Estate, that is, gifting her the computer, fail to make adequate provision for the proper maintenance and support for the plaintiff?

72 The issue for my determination is whether the deceased discharged his moral duty to the plaintiff by leaving her the computer in his Will and whether that provision was adequate for the plaintiff’s proper maintenance and support.

74 Having regard to the mandatory considerations under s91A of the Act, which recognises the principle of freedom of testamentary disposition, the deceased’s Will and evidence surrounding his testamentary intentions establish that he intended to provide both the plaintiff and his wife within a very small Estate. All witnesses acknowledged that the deceased gifted the computer to the plaintiff prior to his death to assist her with her studies. Further, I accept Ms Hassall’s evidence that the deceased told her he wanted her “to be okay”, in that he intended the residue of his Estate to be a small nest egg for her future. In my view, the statement has a ring of truth to it.

75 I also have regard to the discretionary factors that I have detailed above. The plaintiff is a young, educated woman who has a long working life ahead of her with which to build up an asset pool. She has a small HECS debt. She does not have a “need” for further provision.

76 The size of the Estate is a weighty factor, in that I consider an estate worth $40,315.53 to be an extremely small estate. I note that the computer was said to be valued at approximately $2,500, which did not form part of the Estate.

77 The authorities make clear that any order for further provision from the deceased’s Estate must be balanced against competing claims. The evidence supports that Ms Hassall had a loving, caring husband and wife relationship for approximately thirteen years. She made significant financial and emotional contributions to the deceased’s Estate and welfare. Ms Hassall is at the end of her working life and her major asset is the Longwarry property, which is mortgaged. The deceased had a strong moral obligation to Ms Hassall as the surviving spouse, which outweighs any moral obligation to the plaintiff, his child.

• The fact that Ms Hassall has a stronger moral claim on the deceased’s Estate as a surviving spouse, which outweighs the plaintiff’s moral claim on her father’s Estate;

• That any further provision awarded to the plaintiff would substantially reduce Ms Hassall’s entitlements from the deceased’s Estate;

I am not satisfied that the deceased failed to make adequate and proper provision for the plaintiff’s proper maintenance and support. In the circumstances, I take the view that a just and wise testator discharged his moral obligation in the provision of the computer to the plaintiff in the Will

79 I therefore order that the plaintiff’s application for further provision from the Estate of the deceased is dismissed.

81 The general discretion of the Court to deal with costs of and incidental to the proceeding is set out in s78A of the County Court Act 1958 (Vic), which provides:

(1) The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.

(2) In the due exercise of the discretion conferred by subsection (1), in any proceedings before the Court, the Court may order a legal practitioner to pay the costs of the proceedings or a portion of the costs.

(3) The Court may order that the costs of, and incidental to, a proceeding in the Court be assessed, settled, taxed or reviewed by the Costs Court.

82 The general principle is that costs follow the event in that, save for special circumstances, costs are awarded in favour of the successful party and against the unsuccessful one.

83 However, family provision cases are different.[65] Where a Part IV claim fails, it is common for there to be no order as to costs, the effect of which is that the unsuccessful plaintiff bears their own costs and the defendant receives their costs out of the estate.[66] However, recent authorities make clear that a plaintiff can no longer assume that he or she will not be ordered to pay the legal costs of the estate.[67]

84 As Justice McMillan stated in Briggs v Mantz (No 2),[68] the principles relating to costs in Part IV litigation require the Court to consider general principles of justice and the reasonableness of the parties in conducting litigation. In the end, how the costs of the parties should be dealt with must be determined on a consideration of what is “just” in the circumstances of each particular case.[69]

86 In IMO Moerth (No 2),[71] Gardiner AsJ reviewed the authorities on the question of what orders should be made as to costs following an unsuccessful application by a plaintiff for provision in a Part IV claim. Associate Justice Gardiner opined that there was no special type of principle in applications under Part IV of the Act that an unsuccessful plaintiff will, as a starting point, be awarded their costs out of the estate.

89 In that case, Gardiner AsJ concluded that the plaintiff’s Part IV claim was commenced and maintained for the wrong reasons and that the estate should not be inflicted with such costs. Further, that the plaintiff’s claim, when considered objectively, had no reasonable prospects of success, given he had no “need” for further provision, taking in to account his financial state. The Court awarded that the plaintiff pay the estate’s costs of the proceeding and that he bear his own costs of the proceeding.

90 Counsel for the defendant forcefully argued that the Court award indemnity costs as the proceeding was brought in wilful disregard of the fact that the estate was negligible and with no hope of obtaining further provision from the estate. Counsel put forward a number of reasons, which included:

(a) The caveat lodged by the plaintiff against the Longwarry property was misconceived and unnecessarily incurred legal costs;

(b) The plaintiff and the plaintiff’s solicitors are in breach of their overarching obligations under the Civil Procedure Act 2010 (Vic); and

(c) If the costs were to be borne by the Estate, it would render Ms Hassall’s entitlement under the Will to almost nothing.

91 Counsel for the plaintiff sought an order that the costs of the proceeding be paid out of the Estate.[73] At trial, counsel for the plaintiff made a brief submission in reply that there was nothing wrong in bringing a claim against a small estate and to make a cost penalty against the plaintiff for bringing a claim where it is available to the Court to make an order in her favour is misconceived.[74] Counsel for the plaintiff did not address me on costs incurred in respect of the caveat proceeding.

93 Counsel for the plaintiff submitted that the plaintiff’s estimated legal costs were $30,000.[75] However, I was not informed as to whether that figure included any costs in relation to the lodging of the caveat.

94 The defendant’s position paper stated that the defendant and Ms Hassall have funded the proceedings. I was told that Ms Hassall has funded the defendant’s legal costs of this proceeding since 15 August 2016. I was informed that Ms Hassall necessarily became involved in the litigation as a result of the caveat lodged against the Longwarry property. I was not informed as to the current status of the caveat lodged on the Longwarry property. Ms Hassall’s legal costs are $24,336.85. I was further informed that a further amount of $3,461.66 has been incurred by the solicitor acting for the defendant. Counsel for the defendant estimated its legal costs inclusive of the grant of Probate and the proceeding at $10,543.60 plus disbursements of $6,600.00 to the first day of trial.

95 On any view, the costs that the defendant/Ms Hassall has incurred exceeded the value of the deceased’s Estate. On this basis, it is clear that this claim cannot be justified in accordance with s24 of the Civil Procedure Act 2010 (Vic), which states that a person must use reasonable endeavours to ensure legal costs are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute.

96 At trial, the Estate was worth approximately $40,315.53. Subtracting the legal costs incurred by the defendant, the Estate is reduced to nil.

97 Ordinarily, the unsuccessful plaintiff would bear her own costs and the defendant would receive its costs from the estate. However, applying the statements of Gardiner AsJ in the case of IMO Moerth (No 2)[76] where a plaintiff brings a weak claim in the context of a small estate, it may be just, in all of the circumstances of the case, to order that the plaintiff pay the costs of the Estate. Similarly, the Estate has been entirely wasted on legal costs for litigation that should not have been commenced.

98 The size of the Estate is extremely small. Whilst counsel for the plaintiff made assertions that the true size of the Estate was larger, that is, the valuation of the musical instruments and the Longwarry property, there was no evidence at all to substantiate his submissions. In light of such a small Estate, it would be plain that any provision that the plaintiff would receive would be lost to legal costs and reduce any beneficiaries’ entitlements under the Will.

99 Further, it is generally recognised in a Part IV claim that a widow has a higher moral claim on the estate of her deceased husband than anyone else.[77] The plaintiff should have considered this when bringing proceedings in the context of such a small estate where the higher moral claim and responsibility to make proper provision is owed by the deceased to Ms Hassall.

100 Given that the Estate is extremely small, the higher moral claim of Ms Hassall on the deceased’s Estate than that of the plaintiff and that if the defendant’s costs were paid out of the Estate it would reduce Ms Hassall’s entitlements to almost nothing, I consider it is just that the plaintiff pay the costs of the defendant in this proceeding.

102 For the above mentioned reasons, I take the view that the plaintiff should bear the costs of the Estate on a solicitor-client basis.

103 At trial, counsel for the plaintiff acknowledged that the proper plaintiff alleging a trust as asserted in the caveat is the executor of the estate and not the plaintiff.[78] On the evidence, I take the view that the plaintiff lacked a proper legal basis to lodge a caveat on the Longwarry property.

105 Pursuant to s89A(7)(a), I am prepared to exercise my power to order that the caveat be removed if it has not already been done so.

106 Counsel for the defendant sought an order that the plaintiff pay Ms Hassall’s costs of and incidental to the proceeding on an indemnity basis. Other than being told that the caveat was lodged and that Ms Hassall incurred legal costs, the Court was not informed as to what occurred and whether any proceedings were in fact commenced. I will hear further submissions from the parties in respect to whether I should order that the plaintiff pay Ms Hassall’s costs on the caveat proceeding. In an attempt to keep legal costs incurred to a minimum, I am prepared to receive written submissions from the parties on costs.

107 I propose to order that the plaintiff’s application for further provision from the Estate of the deceased be dismissed. I also propose to order that the plaintiff bear the costs of the Estate in this proceeding on a solicitor-client basis.

108 I will reserve my decision on costs of the caveat proceeding until I receive written submissions from the parties.

^[2] This was an increase from the value of $18,500 in the inventory to $20,000 as agreed between the parties (Transcript (“T”) 6)

^[10] which are essentially the same factors as the pre-amendment legislation in s91(4)(e) to (p) of the Act

^[19] Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (NSWSC, 17 May 1996, unreported); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59

^[67] Forsyth v Sinclair (No 2) [2010] VSCA 195; Briggs v Mantz (No 2) (supra) at paragraph [22]. Note also there are a number of recent authorities where judges have capped legal costs where a Part IV claim was brought on a small estate

County Court of Victoria

Higgins v Wilkinson [2017] VCC 1534 (27 October 2017)