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County Court of Victoria |
Last Updated: 22 December 2017
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Revised
Not Restricted Suitable for Publication |
Case No. CI-17-00722
IN THE MATTER of the Estate of NORMAN JAMES FREEMAN deceased
AND
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
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Defendants
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: TESTATOR’S FAMILY MAINTENANCE
Catchwords: Application under Administration and Probate Act 1958 (Vic) Part IV as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic), s5 - whether the testator owed a moral duty to provide for the applicant – whether the plaintiff had been estranged from the deceased and, if so, how did such estrangement affect the moral duty owed – adequate quantum of such provision
Legislation Cited: Administration and Probate Act 1958 (Vic) (as amended); Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s5
Cases Cited: Brimelow v Alampi 
[2016] VSC 135 
; (2016) 50 VR 219; Smith v Thwaites
[2017] VSC 365; Bosch v Perpetual Trustee Co Ltd [1938] AC 463;
Collicoat & Ors v McMillan & Anor [1999] 3 VR 803
Judgment: Orders made making further provision for the plaintiff out of the Estate of the deceased.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Constable Connor & Co Pty Ltd
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For the Defendant
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Roger O’Halloran & Co
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1 Norman James Freeman (“the deceased”) died on 21 August 2016, aged eighty-six years.
2 He had been married to Dawn, who died in June 1980.
3 The deceased and Dawn had two daughters – Suzanne and the plaintiff, Jennifer.
4 Suzanne died in 2014 aged in her early sixties.
5 The plaintiff was born in 1955. As at the date of the deceased’s death, she was aged sixty. She is now aged sixty-one.
6 The deceased left an estate consisting of the following assets:
the value of which was agreed by the parties
(net of sale expenses) - $300,000.00
__________
Total: $917,601.19
==========
7 The Estate appears to have had no liabilities as at the date of the deceased’s death. However, the Estate has since incurred liabilities in connection with this proceeding which amounted to $56,245 calculated up to 16 October 2017 and estimated to incur a further $24,000 up to 23 October 2017 when the trial was completed. In addition, further costs of estate administration to finalisation are estimated at $4,000.
8 On this basis, the Estate is valued at $917,601.19 less $65,745.00, a net figure of $851,856.19.
9 By his last Will made on 27 May 2016, the deceased left:
(a) The Belmont unit and its contents to his friend Jean Payne;
(b) The following bequests:
(i) $120,000 to his niece, Roslyn Morrison
(ii) $120,000 to his niece, Janice Wood
(iii) $120,000 to his niece, Colleen Smith
(iv) $10,000 to his niece, Toni Hoch
(v) $25,000 to his nephew, Michael Coleman
(vi) $10,000 to his nephew, Denis Coleman
(vii) $10,000 to his nephew, Kevin Coleman
(viii) $10,000 to his nephew, Pieter Coleman
(ix) $10,000 to his niece, Patricia Coleman
(x) $10,000 to his nephew, Robin Birrell
(xi) $50,000 to the plaintiff
(xii) $10,000 to his nephew, James Cunningham
(xiii) $10,000 to his niece, Wendy May;
(e) The residue of his Estate equally to the following charities:
(i) Geelong Hospital
(ii) Geelong charity – “Give Where you Live”
(iii) Royal Children’s Hospital; and
(iv) Peter McCallum Cancer Centre.
10 On 19 December 2016, the Executors (the defendants) obtained a grant of Probate of the Will.
11 In this proceeding, the plaintiff seeks a Family Provision Order pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”) as amended by the Justice Legislation Amendment (Succession and Surrogacy Act) 2014. She seeks further provision from the Estate of the deceased, over and above the $50,000 left to her.
12 Applicable principles relating to the amended legislation were conveniently set out in the judgment of McMillan J in Brimelow v Alampi.[1]
13 Section 91(1) of the Act provides that the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an “eligible person”. In this proceeding, it was not disputed that the plaintiff, being a daughter of the deceased, was an eligible person within the defined meaning.[2]
14 Section 91(2) of the Act provides, insofar as it is relevant, that the Court must not make a family provision order unless it is satisfied that:
• at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
• the distribution of the deceased’s Estate fails to make adequate provision for the proper maintenance and support of the eligible person.
15 The plaintiff, as a child of the deceased, is not required to satisfy any dependency requirements.
16 Section 91(4) of the Act provides that, in determining the amount of provision to be made by a family provision order, if any, the Court must take into account:
(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b) the degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support for the eligible person; and
(c) the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person’s proper maintenance and support.
The provisions of s91(4)(d) are not relevant here.
17 Section 91A(1) of the Act provides that, in making a family provision order, the Court must have regard to:
(b) any evidence of the deceased’s reasons for making the dispositions in the Will; and
(c) any other evidence of the deceased’s intentions in relation to providing for an eligible person.
18 Section 91A(2) of the Act provides that, in making a family provision order, the Court may take into account:
(a) any family or other relationship between the deceased and the eligible person, including -
(i) the nature of the relationship; and
(ii) if relevant, the length of the relationship;
(b) any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries of the estate;
(c) the size and nature of the estate;
(d) the financial resources, earning capacity and financial needs at the time of the hearing and for the foreseeable future of –
(i) the eligible person; and
(ii) any other eligible person; and
(iii) any beneficiary of the estate;
(e) any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
(f) the age of the eligible person;
(g) any contributions (other than those made for adequate consideration) of the eligible person to building up the estate, or to the welfare of the deceased or the deceased’s family;
(h) any benefits previously given by the deceased to any eligible person or any beneficiary;
(i) whether the eligible person was being wholly or partly maintained by the deceased, and if so, the extent and basis of such maintenance;
(j) the liability of any other person to maintain the eligible person;
(k) the character and conduct of the eligible person or any other person;
(l) the effect that a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries; and
(m) any other relevant matter the Court considers relevant.
The Deceased’s Wills
19 It appears that, prior to 7 July 2000, the deceased had no will. After that date, he made eight Wills inclusive of his last Will.[3]
20 The first five of these were made prior to the death of the deceased’s eldest daughter, Suzanne, in January 2014. Suzanne was named as a beneficiary in each of them. The last three Wills were made after Suzanne’s death.
21 In each of the first seven of the Wills, the deceased made no provision for the plaintiff. In each of those seven Wills he included a statement as to why he had made no provision for her. There were slight variations in those statements.
22 In the first of those Wills, dated 7 July 2000,[4] the deceased provided:
“I MAKE no provisions for my Daughter, JENNIFER DIANNE FREEMAN on the grounds that she and her partner have had benefits from me of loan moneys during my lifetime amounting to $57,000.00 plus other moneys advanced by me from time to time and she has cut off all ties from me in recent years.”
23 In each of the next five Wills, dated 29 January 2013,[5] 29 April 2013,[6] 30 August 2013,[7] 3 October 2013[8] and 26 January 2014,[9] the deceased provided:
“I MAKE no provisions for my Daughter, JENNIFER DIANNE FREEMAN on the grounds that she and her partner have had benefits from me of loan moneys during my lifetime amounting to $57,000.00 plus other moneys advanced by me in recent years.”
24 In the Will dated 28 January 2015 (the penultimate Will),[10] the deceased provided:
“I make no provision for my Daughter JENNIFER DIANNE FREEMAN on the grounds that she and her partner have had the benefits from me of loan moneys during my lifetime amounting to $57,000 plus other moneys advanced by me in recent years. LET IT BE KNOWN Jennifer has estranged herself from me although I have made numerous efforts to try to contact her to make amends but have failed in every attempt at doing so.”
25 In his last Will dated 27 May 2016,[11] the deceased left to the plaintiff the sum of $50,000. He made no comment concerning his inclusion of her in the Will, or the amount left to her. He made no comment concerning any estrangement or earlier loan monies.
26 Briefly, the variations between the eight Wills can be described as follows:
(a) Prior to the death of Suzanne, she was a beneficiary who ranged from being the sole beneficiary of the deceased’s Estate in 2000 to being left $80,000 in October 2013;
(b) Jean Payne was not a beneficiary in the July 2000 Will or the January 2013 Will, but was a beneficiary in each of the last six Wills as follows:
(c) In January 2013, a number of the deceased’s nieces and nephews were included as beneficiaries: Roslyn Morrison, Janice Wood, Colleen Smith, Toni Hoch and Michael Coleman, in addition to friends, Mary Ward and Jean McKeon;
(d) In January 2015, Jean McKeon was removed as a beneficiary, and the deceased’s nephews Dennis, Kevin and Pieter Coleman, his niece, Patricia Coleman, and Warren Birrell, were added as beneficiaries.
The relationship between the Plaintiff and the Deceased
27 The evidence was, and I accept that, the plaintiff was born and raised in Bendigo. In the early years of her life, the plaintiff enjoyed a good relationship with her father, mother and sister.
28 When she was about four months old, the plaintiff was diagnosed with a condition known as hypothyroid cretinism, a condition from which she still suffers. She was treated, initially, with high doses of a medication known as Thyroxin, and she suffered various physical difficulties as a result of the condition.
29 When she was in Grade 4 at school, she was sexually abused by a family friend who she knew as “Uncle Alan”. This abuse continued until she was in Year 7, at school. These assaults occurred when she accompanied him on various trips away from the family home. They often stayed away for two to three days at a time. The assaults included an attempt to rape her. Following one such trip, she told her mother what had been happening with Uncle Alan. That night, after she went to bed, she heard her parents having a very heated discussion. She heard her own name mentioned, along with that of Uncle Alan. The following morning, her mother told her that everything would be okay, and that she was to forget what happened and never mention it again. Notwithstanding, Uncle Alan still came to the home on occasions. On my calculations, the plaintiff would have been about twelve to thirteen years old in Year 7 in about 1967-1968. She felt that she had received little or no support from either of her parents in relation to the sexual abuse to which she had been subjected.
30 Many years later, in about 2013, the plaintiff attended a general practitioner, Dr Lipzker, who referred her to the Nexus Psychology Group, where she consulted Ms Eppingstall, a psychologist, who gave evidence at the trial. The plaintiff described the referral as being related to her depression and suicidal ideation. Although the first referral was made in 2013, she did not actually take up the suggestion to see the psychologist until 2015 and obtained an appointment in early 2016. She has attended some seven sessions at Nexus with Ms Eppingstall and is continuing to see her.
31 The plaintiff had various problems with school. Notwithstanding, she did well academically and was the dux of her school in Year 12. She won various French language contests in Bendigo, conducted by the Alliance Française organisation.
32 When in Year 10, the plaintiff did well in an essay-writing competition conducted by a local newspaper in Bendigo. She was offered a cadetship by that local newspaper. However, the deceased would not allow her to take it up.
33 In the following year, 1971, the plaintiff applied to the local Rotary Club for a student exchange scholarship similar to that previously obtained by her older sister. She wrote her own application letter, the deceased having declined to assist her. This was apparently disappointing for her, as he had contributed considerable assistance to her sister’s application the year before. She attended an interview for the scholarship with her mother. Both parents were invited to attend, but her father refused. She did not receive the scholarship. Her evidence was that her mother was later told by Rotary personnel that they considered that the plaintiff was a perfect candidate for the scholarship, but did not receive it because her father had not been sufficiently interested.
34 In 1976, when she was aged twenty, the plaintiff married a man named Esmond Curnow. She was young and the deceased did not approve of the marriage. They purchased a property at Redesdale, some 40 kilometres south-east of Bendigo. The deceased was very opposed to them living there. He wanted them to live in Bendigo, closer to home. The plaintiff and Mr Curnow were married for about seven to eight years. They then separated. They were divorced in 1983.
35 During their marriage, in the late 1970s, the plaintiff and Mr Curnow purchased the lease of a hotel in Elphinstone, a town between Bendigo and Kyneton. They sold the Redesdale property where they had previously been living. They jointly borrowed $30,000 from the deceased to help pay for the lease. The plaintiff and her husband operated the hotel for about two years to 1980.
36 During this period, Dawn became ill with cancer. She and the deceased decided to move from Bendigo to Geelong and purchased the Belmont unit. Up until her illness, Dawn had worked as a bookkeeper and earned more than the deceased. The deceased retired from the railways so he could look after Dawn. At that time, the plaintiff was still leasing and working at the hotel in Elphinstone but spent much time assisting her parents packing and moving to Geelong – sorting out what they wanted to take and what they did not, packing and the like.
37 In June 1980, soon after her parents moved to Geelong, Dawn died. The deceased continued to live in the Belmont unit until his death.
38 Initially, the Elphinstone Hotel business had been successful but it later failed and the plaintiff and her husband lost the lease. When the plaintiff and Mr Curnow broke up, they had funds of $40,000 which they split. She offered the deceased $20,000 by way of part repayment of the loan that he had made to her and Mr Curnow. The deceased responded by saying that he did not want it and that the plaintiff should take it with her.
39 Prior to her death, Dawn and the deceased had been keen and apparently talented ballroom dancers. After her death, the deceased continued to enjoy dancing with various different partners. It is difficult to assess the full nature of the relationships the deceased had with those partners but it would seem that some of them may have had a romantic element to them. An Italian woman whose name the plaintiff could not recall told the plaintiff that she loved the deceased and believed that her feeling was reciprocal. A woman named Barbara had spent time living at the Belmont unit and at one point asked the plaintiff and Suzanne to call her “Mum” which neither of them were comfortable with. The plaintiff’s relationship with Barbara was somewhat strained. It seemed to the plaintiff that, if she wanted to speak with her father, she needed to go through Barbara first.
40 In 1984, the plaintiff travelled overseas. The deceased had been upset that the plaintiff was leaving Australia. Her plan had initially been to take a safari across Africa. The deceased was strongly opposed to her doing this. So strong was his view that he said to her that she would no longer be his daughter if she proceeded with that trip. The plaintiff cancelled the safari plan but travelled to Europe in any event.
41 Some four years later, the plaintiff was living with a partner in Spain. In 1989, she travelled home in order to be in Australia for the deceased’s sixtieth birthday. He told her that his heart had not been good. Prior to that, he had sent her various communications asking her when she was coming home, telling her he missed her, and saying that it had been a long time to be away without seeing her.
42 Upon her arrival home, the deceased had picked her up from the airport. On the way home to the Belmont unit, he stopped off and introduced her to a lady named Alma Payne with whom he had apparently formed a relationship. Alma is the mother of Jean Payne, one of the Executors of the deceased’s Will and the first defendant in this proceeding.
43 On her arrival home, the plaintiff moved into the Belmont unit and lived there with the deceased on a permanent basis for some time. She noted that a number of ladies came to the unit and often went dancing with her father. At one point, there was an incident when a lady called at the unit when the deceased was out with another lady. She elected to wait at the unit for the deceased to return and was there for a considerable time. Shortly after, the plaintiff had a discussion with the deceased about the number of women with whom he was apparently involved. He retired to his bedroom, appearing to be upset. He stayed in his room, which the plaintiff described as what he used to do when he was angry. He emerged from the room later and asked the plaintiff when she was going. She replied that she could leave tomorrow if that is what he wanted. That is what occurred. She left the next day. She commenced living in Melbourne. She caught up with the deceased again later and she pretended that nothing had happened.
44 The plaintiff had planned to return to Spain. The deceased put pressure on her not to do so. He offered to lend her money to assist her buying an apartment in Melbourne. Soon after, the plaintiff formed a relationship with Bernard Flannery. In 1993, they bought a small cottage in St Kilda. The deceased agreed to lend to them the sum of $50,000 to assist with the purchase. If there were any terms or conditions of the loan, there was no evidence of them from either party.
45 The plaintiff’s evidence was that the deceased had lent some $30,000 to her and Mr Curnow in connection with Elphinstone Hotel and a further $50,000 to her and Mr Flannery in connection with St Kilda cottage. She denied that there had been any other loans. In cross-examination, she was not challenged about that evidence. The deceased visited the plaintiff at the hotel only once briefly.
46 Following that purchase, the deceased visited the plaintiff only twice: Once to return a Christmas present that she had given him but which he said he did not like. He stayed for five minutes and then left. On another occasion in 1996, to pick her and Bernard up to attend the funeral of the deceased’s brother. At that time, she had no argument or row with her father, but they saw little of each other. The plaintiff did not see the deceased again after that funeral until shortly before his death.
47 In 2000, the deceased telephoned her and they spoke together. The conversation was a friendly one. She asked him how he was and he said that he was okay. He expressed concern about her thyroid condition and her life. He asked her “Where have you been?” The plaintiff told him that she had tried to come and see him and that no-one had answered the door. The deceased told her that he would like to see her. She said to him that she would come down to Geelong the next day. She was looking forward to seeing him.
48 On the following morning, before she had left for Geelong, the deceased telephoned her again. He asked her whether she had been inside his unit. She said that she had not. He accused her of breaking into the unit and stealing his coin collection. She denied that she had, and asked him “Why on earth would you think that?”[18] He said that somebody had broken into his unit and stolen a collection of his coins from a roof cavity. When she queried why he would think that she had been involved, he reminded the plaintiff that when she was seven years old, she had stolen some coins from her sister.
49 The plaintiff advised the deceased to call the police and report the theft. The deceased had hung up. That was the last time that she had spoken with him until shortly before his death.
50 The plaintiff was understandably upset by the deceased’s accusation that she had forced entry into the Belmont unit and stolen items from within it. She said she was devastated by the false accusation.
51 The deceased’s nephew, Michael Coleman, gave evidence concerning a conversation that he had had with the deceased about the alleged theft of the coins. Some time after the accusation was made, Mr Coleman asked the deceased, “How would [the plaintiff] get in?” and the deceased replied, “Oh, she would know where the key was”. Later in that conversation, the deceased told him that the plaintiff had broken in through a window. Not surprisingly, this confused Mr Coleman.[19]
52 The plaintiff’s evidence was that she had attended at or near the Belmont unit on a number of occasions in the years that followed. On one occasion she knocked on the door and there was no answer. She could hear that there was someone in the unit, but no-one answered the door. She returned to her car. She noticed the curtains parted at the front of the unit and saw a woman’s face at the window. Nobody came out. She drove away. In about 1999, she called again, and was of the view that her father was definitely at home as she had heard his voice. The door was not answered.
53 On other occasions, she had driven past the Belmont unit but did not feel able to visit because of what appear to be emotional reasons.
54 In about 2001 or 2002, the plaintiff and Bernard moved to Hay in New South Wales to manage a motel. She did not get in touch with either Suzanne or the deceased about that move. She lived in Hay for about fourteen months and returned to live in Melbourne.
55 The plaintiff did not see her father again until August 2016 when he was seriously ill in the Geelong Hospital. At that time, Michael Coleman contacted her to advise that her father was very ill in hospital, and that he was not expected to live. She immediately drove to Geelong and arrived at the hospital just after midnight. He died three days later, on Sunday, 21 August 2016.
56 Upon her arrival at the hospital, the deceased was capable of speaking with her. He mentioned something about the $57,000 and she said she was sorry. He asked her how she had been. They held hands and she told him that she loved him and always had. They spent a considerable time over the next three days holding hands. He rubbed her arm. He said he had missed her. At one point she briefly left the hospital room and had heard him call out her name.
57 The clinical records of the hospital pertaining to the deceased were tendered.[20] I do not intend to recite here any of the clinical notes. It suffices to say that I do not consider that those notes are in any way inconsistent with the plaintiff’s evidence concerning the nature of her contact with the deceased at the hospital or his condition. I say this only because I got the impression that some of the evidence given by witnesses who had attended upon the deceased at the hospital at various times in the days leading up to his death was to the effect that he was virtually unable to speak or be understood at all. Although the plaintiff was not challenged about the truthfulness of her evidence as to what occurred at the hospital, I should make it clear that I accept her evidence as to her contact and conversations with the deceased at the hospital. I reject the suggestion that he was not capable of conversing in any meaningful way.
58 In short, prior to his death, the plaintiff had not actually met with the deceased since the 1996 funeral of the deceased’s brother (about twenty years before his death). Further, she had not spoken with the deceased by telephone since the telephone discussion she had with him in 2000 in which he accused her of breaking into and stealing from the Belmont Unit (about sixteen years before his death).
59 Counsel for the defendants submitted that I should have doubts as to the credibility of much of the plaintiff’s evidence. Whilst I accept that there were some aspects of her evidence which were not entirely consistent, I formed the view that she was doing her best to recall events that occurred over the course of her life, in many instances, going back up to four decades. It is unsurprising there was some confusion as to dates and the order of events. I concluded that the plaintiff was, in essence, a truthful witness.
The relationship between the Deceased and other non-charity beneficiaries
60 Ms Jennifer Payne is currently aged fifty-eight and resides in Geelong. She is one of two Executors of the deceased’s Will and the sole beneficiary of the Belmont unit. She gave evidence at the trial.
61 Ms Payne is the daughter of Alma Payne who became a friend and dancing partner of the deceased in about 1985 or 1986 when Ms Payne would have been aged about twenty-six or twenty-seven.[21] The deceased and Alma remained friends up until her death in 2012.[22] Over this period, Ms Payne visited her mother on a weekly or fortnightly basis at her mother’s home where she encountered the deceased once or twice a month.[23] She also saw him at various family functions.[24] In the year after Alma died, the deceased attended Christmas with Ms Payne’s family in Torquay but did not attend there again.[25]
62 In the years following Alma’s death, Ms Payne visited the deceased for two to three hours at his home every weekend, sometimes with her husband, Ashleigh.[26]
63 When the deceased’s daughter, Suzanne, was hospitalised with cancer, Ms Payne took him to visit her on one occasion about three weeks before Suzanne died in January 2014.[27]
64 From late 2014 until his death, Ms Payne increased her contact with the deceased. She gave evidence that:
• She telephoned him about once a week to make sure he was alright.[28]
• She helped him around the house by washing his dirty bed linen.[29]
• She assisted him in buying a new washing machine. She offered to help him purchase a new car; however, he went ahead and purchased the car without her assistance.[30]
• They went out for lunch together on his birthdays.[31]
• Each week, she would make him tell her of his upcoming medical appointments. She provided him with taxi numbers when he did not want to drive, and reminded him to undertake blood tests before specialist appointments where required.[32]
• She picked him up and dropped him home from appointments concerning cataract surgery and a colonoscopy.[33] She also recalled two instances where he was driven to hospital by ambulance complaining of chest pain and that, on these occasions, she had accompanied him.[34]
• She encouraged him to ring the council to arrange for a lady to attend at his house every fortnight to clean. This arrangement lasted for about one year.
• Although the deceased ceased dancing as he became older, she took him to ballroom dances to watch her son and his fiancée compete for medals. She also brought him along to the Italian Social Club on “a couple of Sunday nights” where he saw old friends.[35]
65 Around 2.30pm on Saturday, 13 August 2016, Mrs Payne arrived at the deceased’s house to discover he had fallen over.[36] She called an ambulance and he was admitted to hospital where he remained until his death on Sunday, 21 August 2016. During this period, Ms Payne attended at the hospital and gave evidence that:
• On 13 August 2016, at the hospital, she observed that he was talking quite well, was agitated, became very tired and finally fell asleep.
• She rang his niece, Janice Wood, and told her she needed to attend the hospital, which she did just before midnight.[37]
• Over the ensuing six or seven days, she generally tried to “swap” with the deceased’s niece, Janice Wood, who attended at the hospital in addition to Roslyn Morrison.[38]
• Over the next few days, the deceased was in and out of consciousness and by Monday, 15 August 2016 she could not understand anything he was saying. When the doctors reported that he was not going to improve, she suggested to Ms Wood that they needed to find Jennifer Freeman. She said to the deceased, “Squeeze my hand if you want us to try and find Jennifer”.[39] He squeezed her hand.
• Ms Wood contacted the deceased’s nephew, Michael Coleman, who was able to locate Jennifer.
• A few days later, on Saturday, 20 August 2016, the day before the death of the deceased, Ms Payne visited the hospital when there were relatives present, including the plaintiff. She said hello to the deceased but did not stay long as she “figured it was family time”.[40]
66 Roslyn Morrison is a niece of the deceased, being the daughter of Phyllis Sells, the deceased’s sister. She gave evidence at the trial. Prior to 1996 she resided in Orbost and did not see the deceased much.[41] After 1996, she lived in Bairnsdale. She saw the deceased every three months or so when he visited to go fishing with her father.
67 After her father died in September 2015, she visited the deceased twice at Geelong and stayed with him.
68 Janice Wood is also a daughter of Phyllis and Collin Sells, aged sixty-nine, and living in Bendigo. She gave evidence at the trial. Prior to 1995, she saw the deceased once every two years. After 1995, until his death, she saw the deceased roughly four times annually.
69 After the death of her father, Colin Sells, in September 2015, she visited the deceased in Geelong “probably six times” and stayed with him anywhere from three to six days.[42] She helped with the cooking and cleaning.[43] On occasions, she took him to doctors’ appointments.[44]
70 Ms Wood attended the hospital shortly after the deceased was admitted in August 2016. Six months prior, the deceased had asked if she would be his “next of kin”[45] and she was listed as such upon her arrival at the hospital on the evening of his fall. That evening, the doctors reported to her that he wouldn’t last the night so she stayed with him and slept on the floor.[46]. She stayed at the deceased’s house while he was in hospital until his death.
71 One day she attended at the hospital and the deceased threw his arms around her and said something to the effect, “Hello, I love you”.[47] Those were the only words he spoke to her during his hospitalisation.
72 At some stage while at the hospital, the plaintiff told her that she had had a conversation with the deceased through the night.[48]
73 Colleen Smith is also a daughter of Phyllis and Colin Sells and lives in Mossiface in Gippsland. She gave evidence at the trial.
74 After her mother died in 1995, the deceased visited her father every two to three months and would stay there anywhere between two weeks to a month “if the fish were biting”.[49] It is unclear whether she was present on these occasions. Ms Smith was in telephone contact with the deceased “every six to eight weeks”.[50]
75 When Colin Sells died in 2015, the deceased attended the funeral and stayed at Ms Smith’s house. After the funeral, the next and last time she saw the deceased was around May 2016 (some three or four months before his death) when her sister, Janice Wood, brought the deceased up to the Bruthen Hotel where a perpetual trophy was awarded to the late Colin Sells.[51]
76 She did not attend the hospital in August 2016 prior to the deceased’s death.
77 Michael Coleman is the nephew of the deceased who was his mother’s brother. He is aged seventy-three and lives in Torquay. He gave evidence at the trial.
78 In “early times”, he lived in Bruthen, and visited the deceased in Bendigo or Charlton on holidays with his grandparents.
79 After that, he did not see the deceased until, one day, he saw in the death notices, the name of the deceased’s wife, Dawn, which marked the beginning of a second period in which he saw the deceased.
80 Mr Coleman worked in Geelong between 1980 and 1983, and in that period, he saw the deceased two or three times per week.[52] He generally visited the deceased at his unit but on a couple of Friday evenings they went to the local sports club.
81 Between 1983 and 1986, Mr Coleman lived in Hamilton. During this period, he telephoned the deceased as much as he could and called in to see him on a couple of school holidays.[53]
82 Between 1986 to about 1998, he moved to Colac. During this period, he worked as a teacher four days per week in Colac and one day per week in Geelong. When in Geelong, he made a habit of going around to see the deceased.
83 Following his retirement in about 1998, Mr Coleman moved into the unit he currently occupies in Torquay.[54] During this period, up until August 2016, he visited the deceased for two to three hours at his unit two times per week.[55]
84 Mr Coleman visited the deceased upon his admission to hospital in August 2016. A decision was made by him and the nieces of the deceased to contact the plaintiff, which he did with the assistance of police.
85 Mr Coleman also gave evidence concerning other beneficiaries named in the deceased’s Will: Toni Hoch, Denis Coleman, Kevin Coleman, Pieter Coleman, Patricia Coleman, Robin Birrell, James Cunningham and Wendy May.
86 Toni Hoch (spelt “Tony” in the deceased’s final Will) is aged about fifty-eight. She is Michael Coleman’s sister and a niece of the deceased. She lives in Hazelwood North. There was no evidence concerning her relationship with the deceased.
87 Denis Coleman is aged about sixty-eight. He is a brother of Michael and a nephew of the deceased. There was no evidence as to his relationship with the deceased.
88 Kevin Coleman is aged about sixty-six. He is a brother of Michael and a nephew of the deceased. He lives on a commune (or “religious sect”) in Perth. There was no evidence as to his relationship with the deceased.
89 Pieter Coleman is aged about fifty-six. He is a brother to Michael and a nephew of the deceased. There was no evidence as to his relationship with the deceased.
90 Patricia Coleman is aged around sixty-three. She is a sister to Michael and a niece of the deceased. There was no evidence as to her relationship with the deceased.
91 Robin Birrell is aged about seventy-one. She is a sister to Michael Coleman and a niece of the deceased. She lives in Perth. There was no evidence as to her relationship with the deceased.
92 James Cunningham is one of the deceased’s friends or relations.[56] There was no evidence as to his relationship with the deceased.
93 Wendy May is aged around seventy-six or seventy-seven. She is a relation of Dawn (the deceased’s wife). She lives in Murray. There was no evidence as to her relationship with the deceased.
Was there a moral duty owed to the Plaintiff by the Deceased?
94 The Court is to put itself in the position of the wise and just testator, rather than a fond and foolish one. Wisdom and justness is to be judged by community standards.[57]
95 In Collicoat v McMillan, Ormiston J said:
“The moral obligation ... reflects a duty resting on a testator to make not merely adequate or sufficient financial provision for members of his or her family in the specified class but also the obligation to measure that adequacy or sufficiency by reference to what is right or proper according to accepted community standards. What is right and proper, and thus what the wise and just testator must do, is not determined by the ‘character and conduct’ of each applicant but by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of their relationship and treatment (whether morally reprehensible or the opposite) of the testator during his lifetime. It is only when that behaviour has affected, or (arguably) is perceived to have affected, the testator that he or she is in good conscience entitled to make lesser or greater provision for an applicant than that to which the applicant would have been entitled having regard only to the bare bones of his or her financial needs or circumstances. Taking a practical example, a testator is obliged by reason of the legislation to make greater provision for a daughter who has left home early and thereafter for no good reason has had little or no contact with their parent. Compare Scales’ case, above. Even in the case of conduct disentitling the alleged behaviour must be looked at from the viewpoint of the testator and the test has been stated as requiring proof of defects in character or conduct of such a nature ‘as would ordinarily move a just spouse or father to take them into consideration when making his testamentary disposition’.”[58](citations omitted).
96 It is clear that the Court may take into consideration facts which had either not occurred or were not known to the testator at the time of making the Will.[59]
97 Here, it is difficult to find that the relationship between the plaintiff and her father descended into any formal dispute or that it formally broke down for any specific reason. I consider it more likely that the deceased was likely to have been a person used to having his own way and that the plaintiff took offence at his attitude. They ceased contacting each other.
98 In any event, I do not consider that this is a case where a court might have found that the plaintiff’s behaviour could have been considered to be “disentitling conduct” as per the previous legislation.
99 I accept that the conduct of an applicant for a family provision order might, in some cases, affect the extent of the moral duty owed by a testator or even eliminate such a duty. I do not consider that the plaintiff’s conduct here was such as to reduce or eliminate the deceased’s duty.
100 In all of the circumstances revealed by the evidence before me, I am satisfied that, at the time of his death, the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support.
101 She was his only surviving child.
102 Although she had seen little of him for many years prior to his death, I do not consider that this was a result solely of her decision. The plaintiff and the deceased clearly had an unusual relationship. They did not see a lot of each other, even when the plaintiff was young. Nor did he appear to have a particularly close relationship with his older daughter, Suzanne.
103 Suzanne’s former partner, Michael Sedunary, gave evidence that, although Suzanne’s relationship with her father was good, and that they did visit him four to five times per year, she was disappointed that he never came to visit her. His evidence was that the deceased failed to express any affection for her until just before she died. He said Suzanne had thought that her father “didn’t put himself out”.[60]
104 I am satisfied that, following the death of his wife, an important part of the deceased’s life was the continuation of his ballroom dancing with various partners. Mr Sedunary had no knowledge of that aspect of the deceased’s life.
105 I am of the view that, for one reason or another, the deceased did not wish or feel it necessary to visit or keep in contact with the plaintiff from a relatively early time. Examples are his one fleeting visit to the Elphinstone Hotel and his failure to ever visit her at St Kilda, with the exception of two brief attendances to collect her for the funeral of his brother and to return an unwanted Christmas present she had given him. I conclude that he did not display any great affection to either of his daughters.
106 I accept the submissions made by Counsel for the plaintiff that the words used by him in his penultimate Will are of significance. He stated in that Will:
“... Jennifer has estranged herself from me although I have made numerous attempts to try to contact her to make amends but have failed at every attempt at doing so.”[61](My emphasis)
107 I consider this is likely to reflect a belief on the deceased’s part that there were aspects of his conduct towards the plaintiff in the past for which he believed he should make amends.
108 A further aspect of the sentiment expressed in his penultimate Will is the alleged attempt by the deceased to contact the plaintiff through a relation in Bairnsdale. Several witnesses gave evidence on this which can be summarised as follows:
109 That evidence concerning the call to Bairnsdale is puzzling. Bairnsdale is a relatively small town in Gippsland and it is unlikely that there are many funeral businesses there. Bernard Flannery was never the plaintiff’s husband although she did form a relationship with him and currently shares a residence with him. They have never been married. She married only once – to Mr Curnow.
110 The plaintiff denied any knowledge of any telephone call by or on behalf of the deceased seeking to locate her. There was no evidence identifying anyone connected with the plaintiff who worked in a Bairnsdale funeral business. It is possible that the person or persons spoken to at the funeral business advised the caller that they “couldn’t” rather than “wouldn’t” provide information concerning the plaintiff. I am unable to make any positive finding relating those calls. The plaintiff denied that any in-law or friend lived in Bairnsdale or worked there in a funeral business.
111 The plaintiff’s evidence was to the effect that on various occasions, she had genuinely sought to see him regularly and to build a relationship. An example was her moving in with the deceased in the Belmont unit after her return from Spain. After speaking with him about the females apparently in his life, the deceased reacted by telling her, in effect, that she should leave the unit, which she promptly did. Some other fathers and daughters might have handled such an issue differently.
112 A further example was her telephone conversations with the deceased in 2000, commencing on what would seem to be an affectionate note. Notwithstanding, his call to the plaintiff the following morning and his accusation that she had broken into the Belmont unit and stolen his coin collection, was anything but affectionate or indicative of any desire to build a closer relationship. I accept that the plaintiff was deeply hurt by those accusations and they are the most likely explanation for her failing to contact the deceased again until his final hospitalisation. These incidents occurred on a background of a perceived lack of support by the deceased for the plaintiff when her allegations of sexual abuse were made by her and in connection with other issues including her application for an exchange scholarship. Although these occurred many years ago, they remain relevant to her perception that her father had, over a long period of time, provided little support for her.
113 I accept the plaintiff’s evidence as to her contact with the deceased at the hospital and as to the affection displayed by each to the other. I suspect both, at that time, would have regretted that they had not made a greater effort to keep in contact.
Factors that the Court may take into account
114 In determining any additional provision to be made for the plaintiff out of the Estate, I may have regard to the matters set out in the sub-paragraphs to s91A(2).
115 With regard to ss(a), I take into account that the plaintiff is the only surviving child of the deceased and the nature of their relationship during his lifetime.
116 With regard to ss(b), I have found that the deceased did owe a moral duty to the plaintiff. On the evidence before me, I am unable to find that he owed any particular moral obligation or responsibility to any other eligible person or beneficiary. That is not, however, to say that regard should not be had to the testamentary wishes of the deceased as expressed in his last Will.
117 With regard to ss(c), the Estate is small to modest in size.
118 With regard to ss(d), I consider I should have regard to the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future, of the plaintiff and the other named beneficiaries of the Estate. I shall address these later in these Reasons.
119 With regard to ss(e), I note that the plaintiff has suffered for virtually the whole of her life from hypothyroid cretinism, requiring medication. The evidence was that she had various unidentified physical difficulties as a consequence. I accept that over the last few years, she has suffered from depression. The evidence of Michael Coleman was that Kevin Coleman was “not in good health”[67] and that Wendy May was “not a well woman”.[68] Save for those bare references, the evidence did not disclose that any eligible person or beneficiary had a physical, mental or intellectual disability.
120 With regard to ss(f), each of the beneficiaries are of mature age.
121 With regard to ss(g), there was no evidence that any eligible person had contributed to the building up of the deceased’s Estate. I accept that the plaintiff had provided considerable assistance to her parents when they moved to Geelong. I accept that Ms Payne had provided companionship to the deceased in the four or five years leading up to his death. So much was expressly acknowledged by the deceased in his last Will. Similarly, I accept that the deceased’s nieces, Ms Morrison and Ms Wood, did keep in fairly regular contact with the deceased since the mid-1990s and, in that sense, did contribute to his welfare. I accept that Michael Coleman also saw the deceased very regularly from the early 1980s and also contributed in a general way to his welfare.
122 With regard to ss(h), the evidence of the plaintiff was that the deceased did loan to her and Mr Curnow jointly $30,000 and to her and Mr Flannery jointly $50,000. Notwithstanding, I accept that the deceased was of the view that he had advanced $57,000 to the plaintiff over the course of his life. There was no evidence that he had advanced money or assets to any of the other beneficiaries.
123 I do not consider that ss(j) has relevance here.
124 With regard to ss(k), I do not consider that the evidence indicates that the plaintiff nor any of the other beneficiaries is of a character or has conducted themselves in a manner which would be relevant to the issue as to whether a family provision order should be made in favour of the plaintiff.
125 With regard to ss(l), clearly any further provision from the Estate of the plaintiff will result in a reduction of bequests to one or more of the remaining beneficiaries.
The financial resources of the Plaintiff and other beneficiaries
The Plaintiff
126 The plaintiff is currently employed part time. She works as a concierge/caretaker on one weekend per month at a city club, earning $555 per month. In addition, she works for about four weeks per year as a relieving manager at the Ringwood Royale, a 4-star hotel consisting of serviced apartments.
127 The plaintiff’s evidence was that she earned $8,000 in the year ending 30 June 2017. However, her evidence was that she earned $555 per month at the club (about $6,660) and $250 per day for four weeks per year at Ringwood (which calculates to about $7,500). On that basis, she appears to be currently earning about $14,000 per year.
128 The plaintiff had worked for one week as assistant manager of a caravan park in Perth early this year. She left the job and was not paid for that time.
129 Although she may suffer from some depression, I am not satisfied the plaintiff was unable to work longer hours. Barbara Eppingstall, a registered psychologist who had consulted with the plaintiff on six occasions since June 2017, and expected to provide further counselling for another year or two, did not consider that the plaintiff’s earning capacity was necessarily reduced. However, the plaintiff did report to her that in respect of her weekend work, she has reached a point where she struggles in certain situations.[69]
130 She has:
• Savings accounts with a balance of approximately $3,400.
• A superannuation balance with Host Plus of $4,200.
• She has no investments and owns no real estate.
• She has a debt of about $50,000 on her credit card. She did apply to the bank for hardship relief and has not been pursued in relation to that debt.
131 She has lived in an apartment in St Kilda Road for just over a year. She shares the apartment with Bernard Flannery. Although the plaintiff once was in a relationship with Mr Flannery, she stated that this was not the case now, although she does share the apartment with him. He contributes to the costs of food. Matters pertaining to rental and who paid what proportions were not canvassed in evidence.
132 Although there was no evidence that Mr Flannery was supporting her generally, she shares living expenses with him.
133 In short, the plaintiff has few assets. She has longstanding health problems. Whilst she probably is fit to work full time, I note she is now aged sixty-one and would find it difficult to obtain full-time employment and it would only be for a few years into the future.
134 Ms Payne is employed full time as a scientist at the CSIRO. Her husband, Ashleigh Payne, is employed at the Australian Retail Association on a reduced workload of three days per week due to cardiac surgery he underwent about thirteen months ago.[70]
135 Ms Payne’s current financial position (jointly with her husband) is:
• Her gross income for the year ending 30 June 2017 was $79,386.[71]
• Superannuation in an unknown sum. It appears that she received an income stream of $14,119 for the year ending 30 June 2017.[72]
• Ashleigh’s gross income for the year ending 30 June 2017 was $35,119.[73] He receives $1,300 per month in income protection insurance through his superannuation since his surgery. Ms Payne gave evidence that these payments will not continue beyond a further twelve months if he cannot return to full-time work in that time.[74]
• In short, I find that Ms Payne is comfortably off financially.
136 Ms Morrison is married to Daniel. Their current financial position is:
137 In short, Ms Morrison is of modest but comfortable means.
138 Ms Wood’s current financial position is:
139 In short, I consider Ms Wood to be of modest but comfortable means.
140 Ms Smith’s current financial position (jointly with her husband) is:
• A home at 21 Lees Road, Mossiface (no encumbrances)[97] with a “capital improved valuation” of $504,000.[98].[99]
141 In short, I consider Ms Smith to be relatively comfortably off.
142 Mr Coleman’s current financial position is:
143 He appears to be of modest means.
144 I accept that he enjoyed a relatively close relationship with deceased for many years prior to his death.
145 She resides with her husband and two children in Hazelwood North. Her home was described by Michael Coleman as “nothing posh”.
146 She once worked in real estate but has been retired for about ten years. The evidence did not disclose more concerning her financial resources. There was no evidence concerning the nature of her relationship with the deceased (if any).
147 He resides on 4 or 5 acres in or around Perth and is a self-employed truck operator. He is married with two sons aged thirty and thirty-four. The evidence did not disclose more concerning his financial resources. There was no evidence concerning his financial position or the extent of his relationship with the deceased (if any).
148 He is aged sixty-six and lives on a commune near Perth where he receives free board and food in exchange for doing odd jobs around the commune. He is single and not in good health. He has two sons who live in Sweden. The evidence did not disclose more concerning his financial resources. There was no evidence concerning his financial position or the extent of his relationship with the deceased (if any).
He is aged fifty-six. He lives on his own, on a pension and in rented accommodation. The evidence did not disclose more concerning his financial resources. There was no evidence concerning his financial position or the extent of his relationship with the deceased (if any).
149 She is aged sixty-three and lives at Yinar (which I believe is in Western Australia). Michael Coleman described her as not well off and said that she lived on a government pension. There was no evidence concerning her financial position or the extent of her relationship with the deceased (if any).
150 She is aged about seventy-one and is retired. She lives with her husband in Perth. She has four sons whose ages were not disclosed in the evidence. One son has pending back surgery. Mr Coleman said that Robin and her husband had never really worked.[110] The evidence did not disclose more concerning her financial resources. There was no evidence concerning her financial position or the extent of her relationship with the deceased (if any).
James Cunningham
151 There was no evidence concerning his financial position or the extent of his relationship with the deceased (if any).
152 She is separated from her husband and lives in Murray in a government unit. She was described by Michael as “not a well woman”. The evidence did not disclose more concerning her financial resources or the extent of her relationship with the deceased (if any).
Appropriate provision for the Plaintiff
153 Of the total estate left by the deceased of some $913,000, the provision for the plaintiff under the Will was $50,000 or just under 5.5 per cent of the Estate. Even assuming that the deceased advanced a sum of up to $80,000 to her alone during his lifetime, this would be a provision of just over 14 per cent of the Estate inclusive of such advance.
154 I have come to the conclusion that such provision does not discharge the moral duty owed by the deceased to make proper maintenance and support of the plaintiff.
155 As in virtually every case involving an application for a family provision order, legal fees have been incurred by the parties and those parties are likely to seek orders that their costs be paid out of the Estate. Such costs would likely to exceed $200,000.
156 Taking all of the circumstances into account, I have come to the conclusion that further provision should be made out of the Estate by directing that the plaintiff should receive out of the Estate a one half share of the Belmont unit in addition to the amount of $50,000 expressed in the deceased’s Will.
157 The effect of this will be that Ms Payne will only receive a half share rather than the whole of the unit.
158 It may be that, depending upon submissions concerning payment of legal costs, the amounts to be received by the remaining beneficiaries will be reduced.
159 I shall hear submissions from the parties as to the form of orders to be made reflecting these reasons, together with any submissions concerning ancillary matters including costs. I shall provisionally list the matter for that purpose on Thursday, 21 December 2017.
- - -
[1] [2016] VSC 135 ; (2016) 50 VR 219 at paragraphs
[7]-[21]
[2] Section 90 of the Act
[3] Exhibits “K” to “R”
[4] Exhibit “L”
[5] Exhibit “M”
[6] Footnote “N”
[7] Exhibit “O”
[8] Exhibit “P”
[9] Exhibit “Q”
[10] Exhibit “R”
[11] Exhibit “K”
[12] Exhibit “N”
[13] Exhibit “O”
[14] Exhibit “P”
[15] Exhibit “Q”
[16] Exhibit “R”
[17] Exhibit “K”
[18] Transcript (“T”) 48
[19] T354, L16
[20] Exhibit “T”
[21] T218
[22] Supra
[23] T234, L9
[24] T219
[25] T222, L5
[26] T220
[27] T222, L19
[28] T.222.25
[29] Supra
[30] T223, L1
[31] T223, L2
[32] T221, L2
[33] T221, L29
[34] T222, L1
[35] T221
[36] T227, L13
[37] T228, L24
[38] T229, L31
[39] T229, L7
[40] T229, L18
[41] T191, L20
[42] T174, L17 and T174, L28
[43] T174, L7
[44] T175, L1
[45] T178, L16
[46] T179, L1
[47] T180, L27
[48] T181, L12
[49] T320, L22; T322, L3
[50] T327, L21
[51] T325
[52] T349, L2
[53] T350, L2
[54] T350, L22
[55] T351, L3
[56] T367, L28
[57] Smith v Thwaites [2017] VSC 365; Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-9
[58] Collicoat & Ors v McMillan & Anor [1999] 3 VR 803 at paragraph [43]
[59] Collicoat at paragraph [44]
[60] T307
[61] PCB 141
[62] T183, L12
[63] T381, L12
[64] T354, L30
[65] T382, L9
[66] T323, L16
[67] T365
[68] T368
[69] T152
[70] See Exhibit 12
[71] Exhibit 13
[72] Exhibit 14 and T210
[73] Exhibit 15
[74] T217
[75] Exhibit 17
[76] Exhibit 18
[77] T216
[78] Exhibit 20
[79] T218
[80] Exhibit 6
[81] T189, L22
[82] T187, L7; Exhibit 3
[83] Exhibit 4
[84] T187, L8
[85] Exhibit 7
[86] Exhibit 8; T198, L9
[87] Exhibit 10
[88] Exhibit 9
[89] Exhibit 12
[90] T170, L16; Exhibit 1
[91] T171, L6; Exhibit 2
[92] T170, L24
[93] T170, L25
[94] T170, L7
[95] T170, L2 and T170, L17
[96] T169, L25
[97] T316, L23
[98] Exhibit 22; T317, L21
[99] Exhibit 22; T317, L21
[100] Exhibit 22; T317, L9
[101] Exhibit 22; T317, L15
[102] Exhibit 22; T316, L15
[103] Exhibit 22; T317, L24
[104] Exhibit 22; T317, L29
[105] Exhibit 22; T318, L28
[106] Exhibit 22; T319, L6
[107] T347, L3
[108] T347, L8
[109] T346, L21
[110] T367
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