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County Court of Victoria |
Last Updated: 29 May 2017
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Revised
Not Restricted Suitable for Publication |
Case No. CI-16-02157
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
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IN THE MATTER of the Estate of REMO GUGLIELMANA deceased
B E T W E E N :
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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 Part IV of the Administration and Probate Act 1958
Legislation Cited: Administration and Probate Act 1958 (Vic); Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic)
Cases Cited: Briggs v Mantz [2014] VSC 281; Collicoat & Ors v
McMillan & Anor [1999] 3 VR 803; Blair v Blair [2004] VSCA 149; (2004) 10 VR 69;
Forsyth v Sinclair [2010] VSCA 147; Re Estate of Brown (Decd)
[2016] VSC 258; Feehan v Toomey [2014] VSC 488; Anderson v
Teboneras [1990] VicRp 47; [1990] VR 527; Coller v Coller [1998] VSC 80; King v
White [1992] VicRp 72; [1992] 2 VR 417; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201;
Brimelow v Alampi 
[2016] VSC 135 
; McKenzie v Topp [2004] VSC 90;
Hizak v Henjak [1999] VSC 78
Judgment: Order that further provision be made for the plaintiff, in that the plaintiff should receive the entirety of the deceased’s estate.
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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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JP Legal
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For the Defendant
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Solicitor for State Trustees Ltd
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Background
1 By Originating Motion filed on 23 May 2016, the plaintiff seeks provision out of the estate of Remo Guglielmana (“the deceased”) for her proper maintenance and support pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”). [1]
2 The plaintiff, Maria Assunta Ciocca, submits that she is the surviving unregistered de facto partner of the deceased, which was a relationship that endured for twenty-one years from 1992 until his death on 20 December 2013. This was acknowledged by the defendant at trial.
3 The deceased left a Will dated 28 July 1993. By his last Will, the deceased appointed his brother, Irmo Guglielmana, as the executor and trustee of his Will. As Mr Irmo Guglielmana pre-deceased the deceased, having died on 23 February 2011, the defendant, the State Trustees Ltd, was appointed the executor of the deceased’s Will.[2]
4 Probate was granted to the defendant on 1 April 2016.[3]
5 By his last Will, the deceased left his entire estate to his seven brothers and sisters who reside in Italy, in equal shares, which were:
• Irmo Guglielmana, who pre-deceased the deceased
• Tranquillo Guglielmana, who pre-deceased the deceased
• Renato Guglielmana
• Battista Guglielmana
• Giuliana Guglielmana
• Rita Guglielmana; and
• Alba Guglielmana.[4]
6 In essence, the Will provides that the five surviving siblings receive an equal share of the deceased’s estate. The defendant, in its position statement, was aware that two of the deceased’s siblings had pre-deceased him.[5] There was no evidence as to Battista Guglielmana.
7 At the date of hearing, counsel for the defendant handed up a list of the current and future assets and liabilities of the deceased’s estate.
8 It was accepted that the assets of the deceased’s estate, current at the date of hearing, were as follows:
9 Further liabilities or debts that needed to be paid out of the deceased’s estate included the following:
The evidence
10 The plaintiff relied upon her position paper dated 11 November 2016 and her affidavit sworn on 3 March 2017. The plaintiff was cross-examined in Court. In my view, the plaintiff was a truthful witness, answered questions directly and made appropriate concessions.
11 The defendant relied upon its position paper filed on 15 November 2016 and the following affidavits:
• The affidavit of Ms Pauline Zeidan, senior estate representative of the defendant, dated 27 February 2017.
• The affidavit of Ms Jasmine Berger, solicitor of the defendant, dated 20 February 2017.
12 The chronology of relevant events were largely agreed between the parties, which are useful to set out as follows:
The Italian land
13 It was conceded that the Court did not have jurisdiction to make orders with respect to the deceased’s land in Italy. Counsel for the defendant informed the Court that the deceased’s surviving siblings in Italy are now the registered owners of the Italian land. It was accepted that the deceased’s Italian land was to be distributed in accordance with Italian succession law.
14 Counsel for the defendant engaged a solicitor in Italy, Mr Mariano Neri, to obtain further information regarding the deceased’s property holdings in Italy. Exhibited to Ms Berger’s affidavit is a copy of Mr Neri’s report (“the report”), which was received by the defendant on 4 January 2017. The report sets out the Italian land that was found to be registered in the deceased’s name as a result of online searches Mr Neri undertook between 21 December 2016 and 30 December 2016.[12] Essentially, it was agreed that the deceased had a number of shares in several properties, which he co-owned with his surviving siblings. The searches conducted by Mr Neri in December 2016 indicated that the deceased was registered as having the following in Samolaco, Italy:
• A half share of rural land with an area of 9 metres2
• A half share of a chestnut orchard with an area of 410 metres2
• A one-eighth share of two vineyards with an area of 40 metres2 and 50 metres2 respectively
• A one-eighth share of a chestnut orchard with an area of 70 metres2
• A one-eighth share of pasture land with an area of 84 metres2
• A one-seven-hundredth share of fourteen properties including productive wasteland, pasture, wood and a rural building
• A one-eight-hundred-and-fiftieth share of seventeen properties including wood, pasture and productive wasteland
• A one-eight-hundred-and-fiftieth share of twenty-five properties including pasture, wood and productive wasteland.
15 Mr Neri said that to be in a better position to understand the proprietary land in question, he would need to carry out further costly investigations. Counsel for the defendant informed the Court that it had not undertaken these further investigations to value the Italian land due to the small size of the estate and the unproductiveness of wasting estate assets on this investigation.[13] Accordingly, I was not provided with a valuation of the deceased’s Italian land, which makes it difficult to quantify the benefit the siblings received from the Italian land.
16 Further, the parties were not in agreement as to the value of the Italian land. Counsel for the defendant submitted that the benefit of the land to the siblings was insubstantial as the probability of the beneficiaries realising the direct benefit of that land was minimal.[14] Counsel for the plaintiff disagreed and said the Court could not readily infer that these assets were insignificant, instead, that these were substantial parcels of land held by the deceased.[15]
17 The beneficiaries of the deceased’s Will have not filed affidavit material; however, a very brief description of some of their personal circumstances are set out in paragraph 6 of the affidavit of Ms Jasmine Berger sworn 20 February 2017, which reflects emails she received indirectly from them.
18 Briefly, the circumstances of the surviving beneficiaries, the five siblings of the deceased, are as follows:
(a) Alba Guglielmana was born in April 1955. She is married and her husband, Ettore Fallini, works as a labourer. Alba does not work. She and her husband live at Samolaco;
(b) Giuliana Guglielmana was born in June 1947. She is married and she and her husband, Renato Giovanetti, live in Samolaco. Renato works as a labourer and Giuliana works as a farmer. Giuliana has health issues;
(c) Renato Guglielmana, is seventy-six years old. He and his wife, Teresa Ciapusci, live in Samolaco. Renato is a pensioner, and he receives an annual pension of €12,259. Teresa does not work. Renato has six adult sons. One son, Simone Guglielmana, is forty-one years old and unemployed, and is dependent on Renato;
(d) Rita Guglielmana was born in June 1953. Her husband has passed away. She receives a disability pension.
(e) There was no evidence given as to Battista Guglielmana’s circumstances.
Positions adopted by the parties
19 In submissions, counsel for the plaintiff asserted that she had a strong moral claim, as it was well recognised that the “surviving spouse” has the highest claim on the bounty of the testator.[16] Accordingly, counsel submitted that the Court should order that the defendant transfer the whole of the net assets of the deceased’s estate, including the contents of the Rye property, to the plaintiff.
20 Counsel for the defendant’s submission was that the proper exercise of the Court’s discretion was to award the plaintiff with two-thirds of the net estate, which would strike a proper balance between respecting the deceased’s intention to benefit his siblings, but at the same time provide for the plaintiff as the deceased’s domestic partner.[17]
Applicable law
21 The plaintiff seeks further provision from the estate of the deceased in accordance with s91 of the Act as a person for whom the deceased had responsibility to make provision. By reason of the date of death of the deceased, my assessment is based on the Act before it was amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic).
22 In any application for further provision pursuant to s91 of the Act, the Court must determine three questions:
23 There is a significant overlap in the considerations referable to each stage of the process.
24 In determining the amount of provision the Court may order, the Court must have regard to a number of factors set out in s91(4)(e)-(p) of the Act.
25 In Briggs v Mantz,[18] McMillan J summarised the relevant principles of law, where she said that:
“In considering these questions:(a) the court must have regard to the matters set out in ss 91(4)(e) - (p);
(b) the court must determine whether the deceased had a moral duty, responsibility or obligation to the applicant;
(c) keeping in mind the weight given to the freedom of testation, the court will only interfere if the testator has failed in his or her moral duty; and
(d) that moral duty reflects an obligation to make adequate or sufficient provision by what is right and proper according to community standards.
The basis of the court’s jurisdiction is responsibility, traditionally described as the enforcement of moral obligations. The question is what a wise and just testator would have thought it his moral duty to make for the plaintiff. ... .”[19]
26 The following principles are relevant to this proceeding and my assessment of the plaintiff’s claim, set out by Ierodiaconou AsJ in In the Matter of the Will and Estate of Owen Charles Brown, deceased:[20]
(a) The Court places itself in the position of the testator. The applicable test is of a wise and just testator, rather than a fond and foolish one, to be judged according to “current community standards”;
(b) The Court must give due consideration to the intention of the executor as expressed in the Will. It is not for the Court to rewrite the Will by reference to abstract considerations of fairness;
(c) A widow has a higher moral claim on the estate than others, in the absence of special circumstances;
(d) The testator owes an obligation to his widow, in the absence of special circumstances, to ensure she may live in the style to which she was accustomed prior to his death;
(e) Residuary beneficiaries are under no burden to prove their entitlement under the Will. The burden is on the plaintiff to show the benefit she has under the Will is not adequate and proper provision for her;
(f) Widows are entitled to independence, self-respect and autonomy, where appropriate;
(g) The Court may assume beneficiaries have adequate resources if they do not provide evidence as to their financial position or other claims on the testator’s bounty; and
(h) Finally, each Part IV application needs to be decided on its facts.
Application of legal principles
First, whether the deceased had a responsibility to make provision for the proper maintenance and support of the Plaintiff at the time of death
27 At the outset of the trial, it was conceded by counsel for the defendant that the plaintiff is the surviving domestic partner of the deceased and that the relationship endured for twenty-one years, from 1992 until his death in 2013.
Second, whether the deceased, in the distribution of the estate, made adequate provision for the proper maintenance and support of the Plaintiff
28 Counsel for the defendant conceded that, by distributing his entire estate between his siblings in Italy and thereby giving nothing to the plaintiff in his Will, the deceased has not made adequate provision for the proper maintenance and support of the plaintiff.
Third, the amount of provision (if any) the Court orders
29 What was in issue between the parties was the extent of the further provision the Court ordered to be provided to the plaintiff from the deceased’s estate.
30 I will now consider the factors which s91(4) requires the Court to have regard to, avoiding, insofar as possible, unnecessary repetition of the facts.
Section 91(4)(e) - any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship
31 The plaintiff was the de facto wife of the deceased for twenty-one years. The parties were in agreement that it was a loving, happy and longstanding relationship. The plaintiff deposed that throughout her relationship the deceased was welcomed by her children, who regarded him in the highest esteem. Her grandchildren regarded the deceased as their grandfather. He was an integral part of her family. I accept that the relationship between the plaintiff and the deceased is a factor that weighs heavily in favour of the deceased’s moral duty to the plaintiff.
32 The evidence is that the deceased maintained limited contact with the surviving siblings but appears to have had a good relationship.
Section 91(4)(f) - any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate
33 The evidence was that the deceased migrated to Australia in approximately 1980. He had two brothers in Australia and the plaintiff’s first husband was the deceased’s second cousin. The plaintiff and her first husband visited the deceased. The plaintiff’s first husband died in 1982. In 1992, the plaintiff and the deceased commenced a romantic relationship and the deceased moved into the plaintiff’s house at Viewbank. The deceased and the plaintiff maintained a de facto relationship from 1992 until his death in 2013. The deceased, the plaintiff and the plaintiff’s children, regularly frequented the deceased’s Rye property over the summer months for fifteen years. The deceased would regularly take the plaintiff’s children and grandchildren fishing.
34 The evidence is that the deceased maintained contact with the beneficiaries, his siblings, who resided in Italy. In about 1994, the deceased purchased the Italian land. In 2001, the plaintiff and the deceased travelled to Italy and viewed the block of land. The deceased returned to Italy a further three times over the course of the de facto relationship following the death of various relatives. The deceased’s sisters, Giuliana and Rita Guglielmana, visited the plaintiff and the deceased, staying in the plaintiff’s house on two occasions. On one occasion, they travelled to Queensland with the deceased and the plaintiff. On another occasion, Renato Guglielmana, the deceased’s brother, visited Australia during the de facto relationship. The plaintiff deposed that Rita Guglielmana travelled from Italy to Australia to attend the deceased’s funeral. Nonetheless, It was accepted by counsel for the defendant that the deceased owed no moral obligations or responsibilities to his siblings.
35 It was accepted between the parties that the deceased had obligations and responsibilities to the plaintiff that arose by being the plaintiff’s de facto partner for twenty-one years.
Section 91(4)(g) – the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject
36 As aforementioned, the deceased’s estate comprises of the Rye property valued at $600,000, cash in the sum of $15,362.92, a car valued at $22,000 and a boat valued at $15,000, which amounts to $652,362.92. The defendant provided a list of liabilities of the estate, which included the legal costs of both parties in this proceeding, the commission payable to the defendant and the sales costs of the Rye property, including advertising and any capital gains tax. On the defendant’s estimation, the deceased’s assets of $652.362.92 minus the total liabilities of approximately $240,989.62, leaves a residue estate of approximately $411,373.30. I note that sales costs and capital gains tax would be minimal if the Court does not require the defendant to sell the Rye property.
37 Counsel for the defendant described it as a “small estate”[21] and counsel for the plaintiff described it as a “very small estate”.[22] Having regard to the assets and estimated liabilities of the deceased’s estate, I take the view that the size of the estate can be described as small.
Section 91(4)(h) – the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
(a) the Plaintiff
38 During her relationship with the deceased, the plaintiff worked as a kitchenhand and as a machinist, but now receives a government pension. The plaintiff deposed that she will be ineligible for a Centrelink benefit if she has assets in excess of $500,000, excluding her Viewbank property where she lives.[23]
39 As outlined in the plaintiff’s affidavit, her current financial circumstances are as follows:
• She owns the Viewbank property unencumbered, which she estimates the current market value to be $800,000.
• She has savings of approximately $150,000, which includes the sum of $130,000 from the deceased’s superannuation with Colonial First State, which was paid to her on the basis she was the surviving spouse of the deceased.
• She drives a 2011 Toyota Kluger motor vehicle that she values to be approximately $15,000, which is registered in the deceased’s name.
• She receives a government pension of $870 per fortnight.
40 In terms of financial need, counsel for the defendant submitted that the plaintiff has secure accommodation in her Viewbank property and a small nest egg of $150,000, which was inadequate. The defendant submitted that the proper exercise of the Court’s discretion was to provide the plaintiff with a top-up of that nest egg to provide for income and to meet her future contingencies.[24] Further, counsel for the defendant submitted that the language of the Act enables me to consider that the plaintiff may one day need to enter into aged-care accommodation and that she will need to pay a daily care fee for those costs. The plaintiff, in her affidavit, set out the current costs. The submission of the defendant was that the costs provided by the plaintiff in her affidavit are the current maximum costs that she may have to incur. Further, that she would be in a position to realise her equity in her Viewbank property to pay for those accommodation costs.[25] I was informed the daily care fee is specifically indexed to 85 per cent of a person’s pension entitlement, the idea being a person who is solely reliant on an aged pension can afford aged care.
(b) the beneficiaries
41 There was very little evidence given as to the current financial position or earning capacities of the beneficiaries. Ms Berger’s affidavit deposed that Rita Guglielmana, Renato Guglielmana and, possibly, Alba Guglielmana, are in receipt of pensions, which was based on emails sent from these siblings to the defendant.[26] There was no evidence as to Battista Guglielmana.
42 As limited evidence was led by the defendant as to the beneficiaries’ assets or their claims on the testator’s bounty, the Court’s general approach is to assume that such beneficiaries have adequate resources upon which to live.[27]
43 A potential issue that was raised by the parties was the relevance of the plaintiff being in receipt of a pension and its effect on her claim. Counsel for the defendant referred me to the case of Coller v Coller,[28] which cites, with authority, the decision of Hedigan J in King v White.[29] In Coller, Smith J said, at paragraph 15:
“The present case does raise competing claims and, as I understood the position taken by counsel for the plaintiff, it was not seriously suggested that her non-means tested pension entitlements could be ignored. It is to be noted that the main competing claimant, Maureen Suminar, is married with two young children, her husband is unemployed and is on the Work Start Allowance. The defendant Raymond Coller is on a disability pension and seeking compensation for a back injury through the Workers Compensation system. In comparing the positions of those beneficiaries with that of the plaintiff, it does seem artificial to ignore completely their respective pension entitlements. ... .”
44 On this basis, counsel for the defendant submitted that where the estate is sizeable, the Court’s approach is not to have regard to pensions, the reason being that a testator cannot deflect his or her obligations to make adequate provision by arguing that the plaintiff can resort to government benefits.[30] However, as the deceased’s estate was small and the plaintiff, and some surviving beneficiaries, are in receipt of pensions, it would be “artificial” for the Court to ignore this as a factor.
45 Counsel for the plaintiff relied upon a further passage from Coller v Coller, citing Hedigan J in King v White, where he said:
“There would, I think, be strong public policy reasons against permitting the moral obligation of testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the testator’s duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested. Indeed, in this very case, this issue has been partly addressed in relation to the possible provision of an additional source of income for the widow.” [31]
46 Accordingly, I do not have regard to the plaintiff’s pension as a factor in my assessment of the plaintiff’s claim, as it is unclear whether all siblings are in receipt of pensions.
47 I accept that the plaintiff has established financial need, given the state of her assets as outlined above, despite the fact that she receives a government pension. I am not satisfied that the beneficiaries have demonstrated any financial need based on the limited evidence before me.
Section 91(4)(i) – any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
48 The plaintiff deposed, in her affidavit, that she has high cholesterol and suffers from hypertension and Diabetes Type 2.
49 The evidence relating to the disabilities of any beneficiary is vague. Ms Berger, in her affidavit, deposes that Giuliana Guglielmana has health issues, which is taken from Giuliana’s email dated 12 October 2016, where she states that she has had “continuous health problems”[32]. There are no details as to the nature and length of her health problems and I note that Giuliana said that she works as a farmer. Ms Berger deposes that Rita Guglielmana receives a disability pension but, again, no further detail is provided.
50 I accept that the plaintiff suffers from health issues and I take this into account in my assessment. While Giuliana and Rita Guglielmana may suffer from health problems, I cannot be satisfied as to the extent and nature of these problems and any impact it may have on their earning capacity.
Section 91(4)(j) – the age of the applicant
51 The plaintiff is sixty-seven years of age. The deceased’s surviving siblings range from sixty-four to seventy-six years of age, which are in a similar range to the plaintiff.
52 The plaintiff deposes that she has a life expectancy of eighty-nine years and has to make adequate provision for the balance of her life.
Section 91(4)(k) – any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased
53 The plaintiff’s evidence is that she commenced a romantic relationship with the deceased, and they commenced living together as a domestic couple in 1992. The deceased came to live with her at her Viewbank property which she occupied with her three children from her first marriage. The plaintiff’s evidence was that at the start of the domestic relationship, the deceased had surgery on his ribcage for multiple myeloma. Following his treatment for cancer in 1993, he could no longer work. The plaintiff said that he did not give her money for board as they were a couple. The deceased received a form of income protection on his life insurance in the vicinity of a $60,000 payout. In 2004-2005, he was in receipt of a pension, and he received some money from Italy, as he had served in the Italian Army.[33]
54 The plaintiff deposed that during the relationship, she continued to work as a kitchenhand and as a machinist at the Veneto Club. She attended to the deceased’s care needs, including providing for his basic requirements, purchasing and preparing his meals and providing him with love and devotion. When the deceased became ill at the end of 2013, he was admitted to the Austin Hospital. He was there for six weeks and she visited him three times a day between breakfast and lunch and would return at dinnertime to help him with his dinner.[34]
55 In 1998, the deceased purchased the Rye property which, over the years, was used regularly as a family holiday house. The plaintiff, the deceased and the plaintiff’s children and grandchildren, stayed there each summer. In the off-peak season, they would visit at least every second weekend. The plaintiff deposed that she assisted the deceased quite considerably in terms of the maintenance and conservation of the Rye property. Her family helped from time to time in repairs, maintenance, painting, cleaning and other improvements to the property. The plaintiff deposed that she had personal belongings and regarded the contents of the Rye property as being jointly held between herself and the deceased.
56 Counsel for the plaintiff referred me to the statements of Mason CJ, Deane J and McHugh J in Singer v Berghouse (No 2),[35] who said:
“As recent cases in this Court have made plain, it is important that the courts do not disregard or discount the non-financial contributions made to the property and finances of the parties to a marriage or marriage-like relationship, such as the contributions made by parties as home-makers and parents, which are not directly productive of a monetary return. ... .”
57 I accept that during the loving long-term relationship the plaintiff had with the deceased, she has made both significant financial and non-financial contributions to the building up of the deceased’s estate, as well as significantly contributing to the welfare of the deceased when he suffered from cancer in 1993 and then became unwell at the end of his life. This is a factor that weighs strongly in favour of the plaintiff’s claim on the deceased’s estate.
58 There was no evidence of the beneficiaries contributing to the deceased’s estate or his welfare during his lifetime.
Section 91(4)(l) – any benefits previously given by the deceased person to any applicant or to any beneficiary
59 There was no evidence that the deceased gave any benefit to his surviving siblings or the plaintiff, other than any benefit that arose from their relationship.
Section 94(4)(m) – whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
60 The evidence was that the deceased was a loving friend and grandfather to the plaintiff’s children and grandchildren. The deceased also provided a holiday home in the form of the Rye property for the plaintiff and her family to enjoy. The plaintiff deposed that the Rye property had an important place in family life where they stayed each summer for fifteen years.[36] As aforementioned, the plaintiff worked and cared for the deceased throughout the de facto relationship and, in particular, when he was unwell. I accept that the plaintiff was being maintained by the deceased prior to his death, which arose by virtue of their domestic relationship.
Section 91(4)(n) – the liability of any other person to maintain the applicant
61 Counsel for the plaintiff led evidence that the plaintiff’s children are willing to incur liability to assist the plaintiff in retaining the Rye property as part of her claim on the deceased’s estate. However, the evidence is that there is no other person liable to maintain the plaintiff.
Section 91(4)(o) – the character and conduct of the applicant or any other person
62 I accept the character and conduct of the plaintiff are matters to be counted in her favour.
63 Counsel for the plaintiff submitted that the beneficiaries had not behaved in a frank and honest manner in initially asserting that the plaintiff did not provide documents to prove her relationship with the deceased.[37] However, as the defendant readily conceded this issue at the start of trial, I take the view that it does not require further explanation or constitute disentitling conduct.
Section 91(4)(p) – any other matter the Court considers relevant
64 I take into account that the deceased made his Will in 1993, which was one year after he commenced a domestic relationship with the plaintiff and they started living together. As such, it is understandable that the Will reflects his circumstances in 1993 and not of those at the time he died in 2013.[38]
65 I also take into account the fact that the beneficiaries, the deceased’s surviving siblings in Italy, have received the land the deceased owned in Italy. Although there was no objective evidence as to the value of that land, I take the view that it provides a benefit to the beneficiaries, which I must take into account in determining the plaintiff’s claim.
66 It was accepted by both counsel that the deceased had a responsibility to make adequate provision for the proper maintenance and support of the plaintiff at the date of the deceased’s death. Further, that the deceased failed to make adequate provision for the plaintiff when he distributed his entire estate to his five surviving siblings and left the plaintiff out. The main issue for my determination was the amount of the provision the Court should order.
67 As indicated, counsel for the defendant submitted that an appropriate order was to allocate two-thirds of the net estate to the plaintiff, being $273,000, and one-third, being $91,000, to be divided between the beneficiaries. It was not in dispute that the beneficiaries are entitled to the deceased’s Italian land and that the Court did not have jurisdiction to make orders with respect to these assets in the estate.
68 In Brimelow v Alampi,[39] although a decision that considers the amended Act, McMillan J usefully describes the Court’s determination of the ultimate question as follows:
“What constitutes proper provision for the maintenance and support of an applicant involves a consideration of the station in life of the applicant, the age, sex, health and financial resources of the applicant, the size and nature of the testator’s estate and the totality of the relationship between the applicant and the testator and the relationship between the testator and other persons who have legitimate claims upon his or her bounty.In determining what is adequate for the proper maintenance and support of an applicant, the Court has regard to the necessities or needs of the applicant and his or her own capacity and resources for meeting them. This also involves a consideration of the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. Thus, in determining this question, a balance must be drawn between the established claims of the named beneficiaries, the needs of the applicant, the size of the estate and the benefits provided to the applicant and others with legitimate claims upon the testator. The Court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. The Court’s role goes no further than making adequate provision for the proper maintenance and support of an applicant.”
69 In McKenzie v Topp,[40] Nettle J said:
“Section 91 of the Act confers wide power to make such order as is thought fit in all the circumstances of the case. It is plain, however, that the discretion is not untrammelled or to be exercised according to idiosyncratic notions of what is thought to be fair or in such a way as to transgress unnecessarily upon the testatrix’s freedom of testation, but rather carefully and conservatively according to current community perceptions of the provision which would be made by a wise and just testatrix.”
70 The Court must place itself in the position of the testator – a wise and just testator, rather than a fond and foolish one, which is to be judged according to current community standards.
71 I accept that the plaintiff provided love, care and devotion to the deceased over a period of twenty-one years and I am satisfied that her status as a long-term de facto partner vests in her the highest moral claim on the deceased’s estate that cannot be rivalled by the beneficiaries. The deceased owed an obligation to the plaintiff to ensure she lives in the style to which she was accustomed prior to his death. The plaintiff is entitled to independent, self-respect and autonomy where appropriate. Significantly, this is a small estate. I must give due consideration to the executor’s intention expressed in his Will, which was to leave the estate equally to the deceased’s siblings residing in Italy. However, I also have regard to the fact that his last Will was made one year after he commenced to live with the plaintiff, which was twenty-four years ago. There is little evidence before me as to the personal circumstances of the beneficiaries. The deceased had limited contact, albeit, a good relationship, with his Italian siblings. There was no evidence as to their financial need, disabilities or contribution to the building up of the deceased’s estate. As little evidence was provided as to the beneficiaries’ assets or claims on the testator’s bounty, the Court’s general approach is to assume that such beneficiaries have adequate resources upon which to live. Further, the beneficiaries were transferred ownership of the deceased’s Italian land, which is a benefit that they have received from the estate. I accept that the beneficiaries are under no burden to prove their entitlement to the deceased’s estate under the Will.
72 The authorities have established that proper maintenance and support of a widow requires such provision to be made as is sufficient, first, to free her mind from reasonable fear of insufficiency as age increases and health fails and, secondly, to enable her to live with comfort and without pecuniary anxiety.[41] In Hizak v Henjak,[42] the plaintiff was awarded the entire estate absolutely. The beneficiaries were the deceased’s nephews who resided in Croatia. Warren J, as she then was, held that the beneficiaries had no claim to the moral bounty of the testator. In the case before me, the beneficiaries are elderly siblings living in Italy. I accept that having regard to the plaintiff’s physical and personal circumstance and her needs, vests in her, a higher moral claim which cannot be rivalled by the beneficiaries.
73 In In the Matter of the Will and Estate of Owen Charles Brown, deceased,[43] Ierodiaconou AsJ ordered that a plaintiff who had been the domestic partner of the deceased of thirteen years should be provided with further provision of a lump sum of $500,000 and secure accommodation, being a house worth $500,000, out of an estate of $1.7 million. The other beneficiaries of the deceased’s estate were the seven adult children of the deceased and his wife, Margaret.
74 While I am assisted by authorities that consider similar circumstances, I accept that the law requires that each Part IV application needs to be decided on its own facts. In exercise of my discretion under the Act, I have taken into account all factors and circumstances referred to above. I think what is adequate and proper, based on current community standards, is to make provision for the plaintiff out of the deceased’s estate, in that the plaintiff should receive the entirety of the deceased’s estate in Australia.
75 Counsel for the plaintiff sought the following orders:
“That further provision be provided to the Plaintiff from the Estate of the deceased by transfer to the Plaintiff of:
Orders
76 I propose to order that further provision be made for the plaintiff, in that she receive the entirety of the deceased’s estate in Australia based on my conclusions above.
77 I shall hear the parties on costs and on the form of the orders, namely the transfer of the Rye property to the plaintiff, that I should make.
- - -
[1] Joint Court Book (“JCB”) 1-4
[2] JCB 51
[3] JCB 15
[4] JCB 17
[5] JCB 28
[6] JCB 29
[7] The plaintiff, in her affidavit dated 3 March 2017, deposes to driving a 2011 Toyota Kluger motor vehicle valued at about $15,000 registered in the name of the deceased.
[8] $15,000 of which had been paid - see Transcript (“T”) 14
[9] Counsel for the defendant estimated to be $20,000, T13
[10] Estimated to be $86, 977, JCB 100, Ms Berger’s affidavit
[11] T33
[12] JCB 87-91
[13] T18
[14] T18
[15] T30
[16] See Outline of Argument of the plaintiff
[17] T15
[18] [2014] VSC 281 (McMillan J) at paragraphs [95]-[96]; see also Collicoat & Ors v McMillan & Anor [1999] 3 VR 803 at 818 (Ormiston J), Blair v Blair [2004] VSCA 149; (2004) 10 VR 69 at 77-80 (Chernov JA); Forsyth v Sinclair [2010] VSCA 147, at paragraph [61] (Neave JA), and Feehan v Toomey [2014] VSC 488 at paragraphs [17]-[18] (McMillan J).
[19] Briggs v Mantz (supra) at paragraphs [94]-[95] – footnotes omitted.
[21] T18
[22] T46
[23] Plaintiff’s affidavit dated 3 March 2017, page 7 at paragraph [22]
[24] T24
[25] T24-25
[26] JCB 52
[27] In the Matter of the Will and Estate of Owen Charles Brown, deceased (supra) at paragraph [13](m); see also Anderson v Teboneras [1990] VicRp 47; [1990] VR 527
[29] [1992] VicRp 72; [1992] 2 VR 417
[30] T25-27
[31] Coller v Coller (supra) at paragraph [16], JCB 25
[32] JCB 70
[33] Plaintiff’s affidavit dated 3 March 2017, page 2 at paragraphs [9]-[10]
[34] JCB 22, plaintiff’s affidavit dated 3 March 2017 at paragraph [20]
[35] [1994] HCA 40; (1994) 181 CLR 201; cited with approval in Coller v Coller (supra) at paragraph [18]
[36] Plaintiff’s affidavit dated 3 March 2017, page 2 at paragraph [11]
[37] T36
[38] T36-37
[39] [2016] VSC 135 at
paragraphs [20] and [21] – footnotes omitted
[40] [2004] VSC 90 at paragraph [63] – footnotes omitted
[41] (supra) at paragraphs [19]-[20]
[43] Supra
[44] Outline of Argument of the plaintiff, page 23 at paragraph [44]
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URL: http://www.austlii.edu.au/au/cases/vic/VCC/2017/271.html