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1 of 10 DOCUMENTS: CaseBase Cases

Gigliotti v Gigliotti

[2002] VSC 279; BC200203987

Court: VSC

Judges: Byrne J

Judgment Date: 19/7/2002

Catchwords & Digest

Succession -- Testator's family maintenance -- Widow -- Pre-nuptial agreement

Application by deceased's 78 year old widow for further provision from estate.Widow given life estate under will.Residue divided amongst numerous beneficiaries including one quarter to widow.Modest estate mostly made up of family home.Home will have to be sold as result of proceedings.Assertion that widow's support includes reasonable social and domestic requirements as well as materialneeds not challenged by defendants.Second marriage for widow and deceased was of ten year duration.Grown children from both marriages.Widow has few assets, good health, but little English.No particular needs of competing beneficiaries.Widow wants to live near own children.Widow wants home in fee simple.Pre-nuptial agreement probably ineffective at law because contrary to public policy.Nevertheless effect of agreement and wills of deceased that family receive majority of his estate in fullnessof time.Whether provision for widow inadequate.Whether further provision should be made.Degree to which pre-nuptial agreement should be given effect.

Held: Widow provided with $150,000 to purchase home near children and $50,000 nest egg to covervicissitudes of life.House to be held as life interest.Remainder to be distributed among remaining beneficiaries.

Cases referring to this case

Annotations: All CasesSort by: Judgment Date (Latest First)

Annotation Case Name Citations Court Date Signal

Considered Sellers v Scrivenger[2010] VSC 320;BC201005217

VSC26/7/2010

Cited Hills v Chalk (2008) 2 ASTLR 1; [2009] 1Qd R 409; [2008] QCA 159;BC200804698

QCA20/6/2008

Considered McKenzie v Topp[2004] VSC 90;BC200401441

VSC30/3/2004


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Cited Downing v Downing[2003] VSC 28;BC200300672

VSC24/2/2003

Journal articles referring to this case

Article Name Citations Signal

Family Provision in Australia 4th Edition (book) ISBN: 9780409329933

Legislation considered by this case

Legislation Name & Jurisdiction Provisions

Administration and Probate Act 1958 (Vic) s 91(3), s 91(4)


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2 of 10 DOCUMENTS: Unreported Judgments Vic

15 Paragraphs

Re PtIV of the Administration and Probate Act 1985; GIGLIOTTI v

GIGLIOTTI (as the executor of the Will of GIGLIOTTI) -

BC200203987

SUPREME COURT OF VICTORIA COMMERCIAL AND EQUITY DIVISIONBYRNE J

8205 of 2000

16 July 2002, 19 July 2002, 22 July 2002

Gigliotti v Gigliotti [2002] VSC 279

TESTATOR'S family maintenance -- widow's claim -- life interest in substitute home of her choice --

"nest egg".

Re Will and Estate of Antonio Gigliotti

Byrne J

[1] The plaintiff, Mafalda Gigliotti, married the deceased, Antonio Gigliotti, on 9 May 1990. Each of themhad been widowed and had a grown up family of their earlier marriage. At the time of the marriage MrGigliotti was nearly 75 years of age and his wife nearly 65 years. Mrs Gigliotti is now aged 78 years. MrGigliotti died on 20 April 2000 leaving a will dated 29 January 2000. Mrs Gigliotti seeks further provisionpursuant to PtIV of the Administration and Probate Act 1958.

[2] The present value of the estate is relatively modest. According to the affidavit of the defendant executor,Giovanni Gigliotti, sworn 12 July 2002, the assets totalling $267,986 comprise the following:

1 o The family home at 40 Rodney Street, Merlynston valued at $260,0002 o Household effects valued at $5,0003 o Cash - $2,986

Against this, the executor estimates that the estate has incurred or will incur costs of some $20,000 indefending this proceeding. For present purposes I assume that the plaintiff's costs would be about the same.For practical purposes this means, first, that the estate other than the Merlynston home is not sufficient topay the costs and expenses of the executor in defending the proceeding. Accordingly, the home will have tobe sold. Second, it means that, if the costs of all parties are to be paid out of the estate, the amount availableis about $225,000.

[3] The will of the deceased is not a document free of difficulty. The case before me was conducted on thebasis that its effect was to give to Mrs Gigliotti a life interest in the Merlynston home with her being


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responsible for rates, taxes, gas and electricity. The estate is to insure and maintain the property. Thehousehold furniture and Mr Gigliotti's tools were also to be hers for her life. There is also a legacy of$5,000 to a grandson, Antonio Gigliotti. Upon the cessation of the life tenancy, the household furniture andtools pass to the three sons of the deceased in differing shares and the residue is to be distributed as to one

quarter to Mrs Gigliotti or her estate; one quarter to a son, Giovanni Gigliotti; one quarter to another son,Pierino Gigliotti and his two children at 21 years; and the final quarter to two named charities. It is likelythat the life interest terminates if Mrs Gigliotti should voluntarily cease living in the Merlynston home.

[4] The present claim arises because Mrs Gigliotti wishes to live with her own family in Myrtleford orWangaratta. She feels unhappy and unwelcome at Merlynston near her late husband's family.

[5] In terms of the requirements of s91(3), it was put on behalf of Mrs Gigliotti that her proper maintenanceand support requires me to have regard, not only to her material needs, but also to her reasonable social anddomestic requirements. It was put that, as an elderly woman speaking little English, she might reasonablyneed to live her remaining years with her own kin rather than with her late husband's family, especially asthere appears to exist some hostility between her and them. This proposition was not seriously challengedon behalf of the defendants so that attention then moved to the amount of provision which should be madefor her.

[6] S91(4) requires me to have regard to 12 matters in undertaking this task. I have done so and will notburden this judgment by dealing with each of them in turn. The relevant considerations as I see the positionare the following: the age of Mrs Gigliotti; the fact that she has been a devoted wife for some 10 years andis now a widow with few assets and has as income only an age pension of $427 per fortnight; she is in goodhealth for a woman of her age; the competing beneficiaries have not demonstrated any particular want offinancial resources; their moral claim upon the bounty of the deceased is minimal compared with that of thewidow. There was some evidence of lack of affection or want of filial devotion on the part of some of thesecompeting beneficiaries. This was disputed and I make no finding adverse to them in this judgment, ratherthe contrary: their attitude as it appeared from the presentation of their case before me showed them to besympathetic to the needs of their stepmother.

[7] Two matters, however, of some novelty were raised and these have caused me to reserve this decision.The first was a submission put on behalf of the estate that Mrs Gigliotti had, by her statement that she didnot want to live in the Merlynston home and by putting the estate to the expense of defending her claimwith the consequence that the home will have to be sold, disclaimed her life interest. Accordingly, it wasput, the gifts in remainder had vested in possession. I very much doubt that her conduct amounted to adisclaimer. In any event, I am not at all sure that I understand what is the consequence of such a disclaimerfor the purposes of my present task. I therefore put this matter to one side.

[8] Of greater difficulty is the fact that on 7 May 1990, two days before their marriage and expressly incontemplation of the marriage, Mr and Mrs Gigliotti executed what is described as an pre-nuptialagreement. The agreement is in the following terms:

"PRENUPTIAL AGREEMENT

THIS AGREEMENT is made on the 7th day of May 1990. This Agreement is entered into BETWEENANTONIO GIGLIOTTIwidower of 40 Rodney Avenue, Merlynston in the State of Victoria (hereinaftercalled 'Tony') andMAFALDA CASAROTTO (known as Lena) widow of Gavan Street, Bright in the State of

Victoria (hereinafter called 'Lena').Tony and Lena have agreed to be married on the 9th day of May 1990. Both of them are entering into themarriage with love for each other and with hope for the future. In the hope of leaving to marital tranquillityin life together and to avoid or reduce any dispute between them in the future about the ownership, use, andwith descent of property and to avoid unpleasantness and dispute should, despite their best intentions, themarriage in any circumstances not work out, they wish to set down in writing before their marriage whatthey are agreeing to as to how their financial relationship with each other following the marriage should beregulated.

1. Tony owns his home at 40 Rodney Avenue, Merlynston. The home is worth approximately $160,000.00.


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There is no Mortgage on that home. Tony is made to feel anxious by the possibility that upon a re-marriageThe Family Law Act 1975 might give Lena some right to that piece of property. Lena does not desire now,or ever, to make any claim to it and desires to set Tony's mind at rest. As to the house Tony and Lena areagreed that Lena will never make any claim against that particular piece of property and Tony will continue

to provide it as a home for their married future together. Tony will pay the municipal and MelbourneMetropolitan Board of Works rates and insurance on the property.

2. Apart from the home at Rodney Avenue, Merlynston Tony owns all the house furniture situated in thehome and bank accounts totalling $12,000.00. There is no other property owned by Tony. Lena owns a FordLaser motor vehicle 1986 model valued at approximately $9,000.00 and has bank accounts totalling some$7,500.00. Tony and Lena agree that these separate properties will remain separate throughout the marriagealthough each will permit the other to use what they have except for the monies in the bank accounts.

3. Tony now promises that during the marriage the house and household furniture will be available for useby Lena. Both Tony and Lena are on pensions and they both intend to support each other from theirrespective pension receipts.

4. Tony hopes in the future to improve the home at 40 Rodney Avenue, Merlynston and he may in thefuture sell that home and purchase some other accommodation for himself and Lena. Tony acknowledges

that any expenses on such improvements will be entirely his responsibility and if Lena makes anycontribution with Tony's agreement to any improvements or the purchase of any new property, then Tonyacknowledges that he will have an obligation to repay that amount to Lena and it will be treated betweenthem as a debt.

5. Tony promises that should he die prior to Lena that Lena will have the use and occupation of the saidhouse and household furniture during her widowhood.

6. Tony has spoken to his lawyers about the preparation of this Agreement and he desires that Lena shouldalso have advice before signing it since it is the desire of both of them that this Agreement should be ameans of minimising any possible friction between them and not a source of additional friction betweenthem.

7. This Agreement is intended to be binding upon the heirs, executors or trustees of Tony's and Lena'sestates.

8. This Agreement shall become effective upon Tony and Lena going through an effective ceremony ofmarriage, whether on the 9th day of May 1990 as presently planned or some other date. If, unexpectedly themarriage should not occur within one year, this contract shall terminate unless they expressly agree inwriting to revive it. "

[9] On the same day Mr Gigliotti made a will in contemplation of the imminent marriage in which he leftthe Merlynston home to his intended wife during widowhood, she to maintain the property and to payoutgoings. There was a gift over to his four children equally.

[10] Each of these documents was prepared by Mr Gigliotti's Myrtleford solicitors and Mrs Gigliotti'sexecution of the agreement appears to have been witnessed by a law clerk in that office. Mrs Gigliottiacknowledged that the signature was hers but said she had no recollection that anyone read or translated orexplained the document to her and no recollection of the circumstances of its execution. Having observed

her giving this evidence and notwithstanding the lack of evidence to the contrary, I find that she executedthe document at the office of the solicitors and that it had been translated to her at the time.

[11] The legal effect of the pre-nuptial agreement is problematic. It appears to be an attempt to prevent hermaking a claim to the Merlynston home pursuant to the Family Law Act. Mr Gigliotti agrees to make thehome and any substitute home available for her and that after his death she might continue to enjoy thehouse and its contents during her widowhood. This was given effect to in the will of this same date.Otherwise, the spouses were to maintain separate property. Such a "maintenance agreement" without courtapproval or registration is not binding pursuant to the then provisions of PtVIII of the Family Law Act. It isprobably ineffective at law as being contrary to public policy.


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[12]Nevertheless, I do not think I should ignore the fact that, upon their marriage, this couple establishedwhat seemed to them was a sensible and serious property regime. Doubtless, Mr Gigliotti was sensitive thathe should not, by marrying Mrs Gigliotti, jeopardise the expectation of his children that they would in duecourse receive the fruits of his lifetime endeavours. This is a matter I will have regard to in determining the

amount of provision1

. In the circumstances which now exist, I consider that I should, so far as is consistentwith the proper provision for Mrs Gigliotti, respect the intention of the married couple in 1990 and hisintention in his 1990 will and his 2000 will that his family should in the fullness of time receive his estate.

[13] I give effect to this by rejecting the submission put on behalf of the widow that she should have a feesimple title to a house in Myrtleford which will be bought for her out of the estate. I will direct that shehave a life interest only in the house with the remainder in effect passing in accordance with the gift overprovision in the will. The wisdom of generations of judges exercising this jurisdiction has dictated that awidow requires not only a roof over her head, but also what is called a "nest egg" to give her some comfortin facing the unforeseeable vicissitudes which lie ahead. I will, therefore, make provision that she havesuch a sum for her own use and for her to pay the outgoings and to maintain the house to be bought for her.Having regard to the evidence of the likely cost of a suitable house and to include provision for the cost ofpurchase and relocation which she must bear, I will direct that $150,000 be made available for thepurchase. I will fix $50,000 as the amount of her nest egg.

Order

[14] I therefore propose the following orders:

1. Declare that the distribution of the estate of Antonio Gigliotti effected by his will dated 27 January 2000does not make adequate provision for the proper maintenance and support of the plaintiff, MafaldaGigliotti, his widow.

2. Order that the provision for the plaintiff be made out of the estate of the deceased by distributing theestate as if the following amendments had been made to the will:

(i) by deleting cl5, 6 and cl7 and substituting the following cl5 and cl6:

"5. I give and devise and bequeath to my wife, Mafalda Gigliotti (also known as Lena Gigliotti), a life

interest in my real property situate at and known as 40 Rodney Avenue, Merlynston in the State of Victoriaand my household furniture and tools, she being responsible for payment of rates, gas and electricitycharges and any taxes levied on the said property and for its insurance and for its maintenance in the samestate of repair as at my death.

6. Should my wife, Mafalda Gigliotti, desire not to continue to live in my said property I direct my executorto sell the property. From the proceeds of sale my executor shall:

(a) Set aside $150,000 to purchase a house to be chosen by my wife in Myrtleford or such other place asshe chooses. This sum is to cover the cost of the purchase and the legal costs and stamp duty payable inrespect of the purchase. This house is to be held by my wife as a life interest upon the terms set forth in cl5hereof.

(b) Pay to my wife absolutely the sum of $50,000 without legacy interest.

(ii) By deleting cl11(a) and substituting for the word "quarter" where appearing in subcl(b), subcl(c) andsubcl(d) of cl11 the word "third".

3. Order that the costs of the plaintiff of this application be taxed on a solicitor and client basis and whentaxed be paid out of the proceeds of sale of the Merlynston property.

4. Order that the executor's costs and expenses of and incident to this application be had and retained out ofthe estate.

5. Liberty to apply.

[15] I will hear counsel further upon the precise terms of the orders to be made to give effect to these


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conclusions.

Counsel for the plaintiff: Mr J J Isles

Solicitors for the plaintiff: Rush & Failla

Counsel for the defendant: Mr P D Ahearne

Solicitors for the defendant: John Di Santo

1 See s91(4)(p).


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3 of 10 DOCUMENTS: Victorian Reports/Judgments/7 VR/LEE v HEARN - 7 VR 595 - 31 May 2002

17 pages

LEE v HEARN - (2002) 7 VR 595

Supreme Court of Victoria -- Commercial and Equity DivisionWarren J

7, 8, 12 March, 31 May 2002

[2002] VSC 208

Testator's maintenance -- Application -- Friend of testator -- Provision of resident caretaker services-- Provision of occasional routine domestic services -- Applicable principles -- Amendment of

legislative scheme -- Extension of eligible applicants beyond deceased's family members -- Legislative

specification of eligibility criteria -- Whether amending legislation had codified case law on testator's

family maintenance legislation -- Requirement of moral duty -- Plaintiff failing to establish testator's

dependency -- Administration and Probate Act 1958 (No 6191)s 91.

Section 91(1) of the Administration and Probate Act 1958, which was inserted by s 55 of the Wills Act1997, authorised the Supreme Court to make provision out of a deceased person's estate for the propermaintenance and support of a person for whom the deceased had responsibility to make provision.

Section 91(4) required the court, in determining whether or not the deceased had responsibility to makeprovision for a person, to have regard to:

"(e) any family or other relationship between the deceased person and the applicant, including the nature of therelationship and, where relevant, the length of the relationship;

(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and thebeneficiaries of the estate;

(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate issubject;

(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any otherapplicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;

(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;

(j) the age of the applicant;

(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare ofthe deceased or the family of the deceased;

(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;

(m) whether the applicant was being maintained by the deceased person before that person's death either wholly orpartly and, where the court considers it relevant, the extent to which and the basis upon which the deceased hadassumed that responsibility;

(n) the liability of any other person to maintain the applicant;

(o) the character and conduct of the applicant or any other person;

(p) any other matter the court considers relevant."


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For about 12 years from 1989, the plaintiff (born in 1952) lived rent-free in an apartment in Queenslandowned by H (1926-2000) acting as caretaker and (until about 1997) assisting H with personal tasksincluding cooking and acting as her chauffeur when she made intermittent winter visits from her home inMelbourne to Queensland and stayed at the apartment. The plaintiff, who was not related to H by blood ormarriage, had become a friend of H in about 1976 having been introduced to her by a mutual friend, U,who died in 1987 leaving the bulk of his estate (including the Queensland apartment) valued at more than$1m to H. By her will made in 1988, H gave the plaintiff and each of five other beneficiaries a legacy of$20,000. The remainder of H's estate, valued at more than $2.2m, was left to a charitable trust in memoryof U. After 1989, the plaintiff, a diabetic, had

7 VR 595 at 596chosen to engage in paid employment only intermittently. The plaintiff applied under s 91 for an order that

he was entitled to the Queensland apartment. During the trial, he reduced his claim to one for an amount ofmoney commensurate with the value of a life interest in that property. In a second affidavit filed in supportof his claim and in his evidence at the trial, the plaintiff alleged that the nature and extent of the assistancehe afforded H on her visits to Queensland was dictated by her alcohol consumption.

Held, dismissing the application: (1) On the evidence:

1a) there was no support for the plaintiff's claim that the deceased suffered from an alcohol-related problem such that she was dependent on him. [28];

1b) the deceased's provision of accommodation for the plaintiff did not arise out of anyobligation or duty recognised by the deceased, but, instead, was based only on her friendshipwith the plaintiff and the convenience of having the plaintiff act as caretaker of theapartment. [29], [30].

(2) The scheme embodied in s 91 of the Act, whilst expanding the class of eligible persons, effectivelyconstituted a codification of the pre-existing judicial approach to testator's family maintenance legislation.The proper approach to the new legislative scheme involved an inquiry into what a wise and just testator

would have thought was his or her moral duty to make proper provision for the applicant. There wasnothing to indicate that the Parliament intended to constrain the testator's freedom unless the testatorbreached a moral duty owed to the applicant. [59].

Re Fulop (deceased) (1987) 8 NSWLR 679; Churton v Christian (1988) 13 NSWLR 241; Grey vHarrison [1997] 2 VR 359; Collicoat v McMillan [1999] 3 VR 803; Coombes v Ward [2002] VSC 61referred to

(3) Applying the criteria contained in paras (e)-(p) of s 91(4) of the Act, the applicant had failed to establishthat the testator owed him a moral duty. [61]-[79].

Application

This was the trial of an application made by originating motion under s 91 of the Administration andProbate Act 1958 for an order that provision be made for the plaintiff out of a deceased estate of which thedefendant was the sole executor. The facts are stated in the judgment.

W F Gillies for the plaintiff.

R T A Waddellfor the defendant.

Cur Adv Vult


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Warren J.

[1] Olga Hetherington ("the deceased") died leaving an estate worth in excess of $2.2m largely to a

charitable trust subject to five legacies worth $20,000 each. The plaintiff makes claim on the estate of thedeceased under the relatively recent amendments to s 91 of the Administration and Probate Act 1958,previously referred to as the testator's family maintenance provisions or Pt IV provisions. The plaintiff wasnot related to the deceased by blood or marriage. He lived in a property owned by the deceased inQueensland for a period of about 12 years prior to her death, performing caretaking and other associatedfunctions. The deceased visited the Queensland property intermittently usually during the winter months.The deceased otherwise resided permanently in Melbourne, Victoria, save for the occasional trip overseas.

7 VR 595 at 597

Background facts

[2] The plaintiff, Robert Lee, was born in Malaysia in 1952. He is now aged 50. He came to Australia in1972 to study graphic art in Adelaide and graduated from a graphic design course in 1976. Over the nextfour or so years Mr Lee had a number of positions in his chosen field. He went to Melbourne and worked

for Monahan Dayman Adams (a large advertising company at the time but which no longer exists) and wassponsored by this firm to become a permanent resident of Australia. He then went to Sydney and workedfor Avon cosmetics. Around 1978, Mr Lee was appointed art director at Saatchi Australia in Singapore.Unfortunately, he contracted hepatitis at this time and when he returned to Sydney spent around a yearreceiving sickness benefits. Also at this time, Mr Lee was disowned by his family because it seems of hisdecision not to return to live in Malaysia. In 1981 he returned to Adelaide and worked for Young &Rubicam, an advertising agency, but for only about nine months. After this period he pursued the objectiveof running his own business. He went to the Gold Coast in 1983 to take up a partnership with a friend in asmall design business. This venture was not successful and in around 1985, Mr Lee entered a partnership ina Gold Coast advertising agency. Once again, the venture was unsuccessful and the partnership wasdissolved in 1989. The dissolution marked the end of Mr Lee's professional career as a graphic artist. Sincethen, he has only worked on a part-time basis in sales positions.

[3] In 1974, Mr Lee became acquainted with members of the Urquart family. Whilst still a student inAdelaide he worked with a Miss Urquart at a pizzeria. They became friends and knowing that he wasfinding it difficult to make ends meet as a student Miss Urquart suggested to him that in exchange for cheaprent he could help her grandfather, Walter Urquart senior, around the house and in the garden. He did justthis, moving into a neighbouring property belonging to Walter Urquart senior. The two became friends. Inturn, Walter Urquart senior arranged for the introduction of Mr Lee to his son, Walter Urquart junior, sometime in 1976, when Mr Lee moved to Melbourne and once again a friendship developed between Mr Leeand a member of the Urquart family.

[4] Walter Urquart junior owned a property on the Gold Coast. According to Mr Lee, he and Walter Urquartjunior at one point considered going into business together designing and manufacturing swimwear on theGold Coast. It seems that Walter Urquart junior regarded Mr Lee as his "protg". Miss Hetherington, thedeceased, had become acquainted with Mr Lee through Walter Urquart junior some time in 1976. WalterUrquart junior died on 2 August 1987. It was Mr Lee who found him collapsed in his unit on the Gold

Coast and drove him to a hospital and later organised a flight to Melbourne where Walter Urquart juniordied.

[5] Walter Urquart junior (hereafter referred to as "Walter Urquart") was a wealthy man and in his will of14 May 1987 he left his entire estate of around $1m -- except a legacy of $10,000, to one Roy WilliamOsmac Pugh -- to the woman with whom he had enjoyed a close relationship for a number of years, OlgaAgnes Hetherington, the deceased in these proceedings. Mr Lee was not a beneficiary under WalterUrquart's will. Miss Hetherington, who was 61 years old in 1987, upon the Urquart inheritance became awealthy woman in her own right. Either in accordance with the wishes of Walter Urquart or from her ownacknowledgment of the friendship between Mr Lee and Walter Urquart, Miss Hetherington gave Mr Lee


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$10,000 from the estate she inherited.7 VR 595 at 598

[6] It is undoubted that Miss Hetherington and Mr Lee were friends. Upon acquiring property on the GoldCoast from the Urquart estate, Miss Hetherington allowed Mr Lee to live in one of those properties at Unit

11, Port Merion ("the Port Merion property") rent-free from 1989 onwards. Mr Lee attended to the day today running of the property, fulfilling the functions of caretaker. Miss Hetherington spent time with him inthe unit when she visited the Gold Coast between 1990 to 1997 during the Melbourne winters. When MissHetherington was staying, Mr Lee helped her with the shopping and cooking and drove her wherever shewanted to go in his car. Miss Hetherington travelled widely overseas during this period also until the finaltwo years of her life which were spent in Melbourne.

[7] Miss Hetherington died on 25 June 2000 and in her will of 1 June 1988 she left the plaintiff, along withfive other beneficiaries, a legacy of $20,000. The rest of her estate, valued at over $2.2m, was left to acharitable trust established in memory of Walter Urquart.

The evidence for the plaintiff

[8] The plaintiff gave evidence on his own behalf. In addition, he called as witnesses Jon Edmunds and

Marjorie Edmunds, friends of the deceased, and Warren Humphries, former site manager of the PortMerion property in Queensland. The plaintiff relied upon three affidavits, the deponents of which were notcalled. They were Gregory Alan Morris, valuer Lynette Smith, estate agent and Dr Tony Bose, doctor to theplaintiff.

[9] The plaintiff's evidence was that he and the deceased had a mutual obligation to care for one another inaccordance with the wishes of Walter Urquart. He said that shortly before his death Walter Urquart askedthe deceased to "look after Olga". Mr Lee said that the deceased told the plaintiff that Walter Urquart hadasked her to look after him because of his close friendship with the Urquart family. The plaintiff said thathe took this to mean that Walter Urquart had asked the deceased to support him.

[10] Over the years the deceased told the plaintiff that she would look after him. Mr Lee asserted that shesaid she had "inherited me [Mr Lee] as part of the estate of Walter Urquart Junior". Mr Lee also said thatthe Port Merion property was referred to as "ours" and the deceased assured him he would always have a

roof over his head and that the unit was his home. He said she told him, "Don't worry, you have a placehere. You will always have a home to come back to. You don't have to go out and be sold for a pup."

[11] The plaintiff said that the deceased spent six to nine months with him every year at the unit and twoweeks every Christmas. These statements were challenged in cross-examination and, on the evidence ofother witnesses supported by the dates of travel in and out of Australia in the deceased's passport, wereshown to be quite exaggerated. Between the years 1990 and 1997 the most time that the deceased spent atthe Port Merion property was about four months; the shortest period was about six weeks. She did not stayat the Port Merion unit during 1994, nor at all in the last two and a half years of her life. The plaintiff saidthe deceased often spent Christmas with him. However, I do not accept that was so. She spent someChristmas periods in Melbourne, went on a cruise to New Zealand in a particular year and, in 1997, stayedwith her cousins, the Hendricks, in Sydney.

[12] It was the plaintiff's evidence that whenever the deceased stayed with him he was at her beck and call

to such an extent that he could not work. However, the7 VR 595 at 599

plaintiff acknowledged that the deceased at no time asked him not to work and devote his time to her. Hecooked for her and took her shopping or wherever she wanted to go. According to the plaintiff, thedeceased was in poor health from about 1996 onwards. He claimed that the deceased had a heart condition,suffered from colds and flu and from depression. No medical evidence was led to support the claims of thedeceased's ill health. Furthermore, according to the plaintiff the deceased's poor health was exacerbated byconsumption of alcohol.

[13] The plaintiff swore two affidavits. The first, on 4 January 2001. The second, on 5 February 2002. No


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mention of the deceased's drinking was made in the plaintiff's first affidavit. When challenged in cross-examination as to the reasons for the omission the plaintiff responded that he was reluctant to speak on sucha matter out of respect for the dead. The allegation that the deceased was a heavy drinker, or at the least awoman who because of her slight build and age was easily affected by even a light or moderate

consumption of alcohol has, despite professed reluctance to speak on the matter, come to figure large in theplaintiff's case. It was the plaintiff's evidence that his role of carer was made burdensome because of thedeceased's drinking which necessitated that he bathe her and assist her to the toilet.

[14] In addition to attending to the deceased's personal needs, it was the plaintiff's evidence that he "co-ordinated" the management of her property interests in Queensland. However, in cross-examination theplaintiff accepted that all he actually did amounted to redirecting mail and attending body corporatemeetings. The plaintiff also accepted that the deceased did not tell him of plans she contemplated to sell thePort Marion unit in late 1999-2000.

[15] In regard to work prospects, the plaintiff's evidence was that he has no prospects of working full-timein the advertising industry again. He said that he is "in the scrap yard" with an out of date portfolio and noknowledge of computers. He conceded that he has done nothing to upgrade his qualifications. The plaintiffsaid that he suffers from diabetes and this condition affects his capacity to work. The plaintiff claimed, also,to have had a nervous breakdown but no medical evidence was led on this point.

[16] The plaintiff called two members of the Edmunds family as witnesses. Jon Deane Edmunds is the sonof Marjorie Edmunds, a close friend of the deceased. Mrs Edmunds lives on the Gold Coast and saw thedeceased whenever she was up from Melbourne. Mr Edmunds saw the deceased at least once a year for thelast 12 years of her life. Mr Edmunds was with the deceased when she died. His evidence was that thedeceased had a drinking problem for about the last 10 years or more before she died. He described anincident at a dinner some 10 years before her death when the deceased fell into a bath and becameincontinent. He also said that she was intoxicated at his wedding in 1994. In addition, he gave otherexamples of a birthday party in 1985 and of a Christmas gathering in Mount Macedon some years agowhen the deceased was overcome by alcohol. In cross-examination Mr Edmunds accepted that the deceasedmay not have been an excessive drinker but that because of her diminutive build she was easily and quicklyaffected by alcohol. Mr Edmunds said that he observed the health of the deceased declined in the last fourto five years of her life. Mr Edmunds referred to the plaintiff, Mr Lee, as the deceased's "carer". He said

that the relationship between the plaintiff and the deceased was a "domestic type of relationship" in thatthey squabbled from time to time. Mr Edmunds said that the deceased had told him she would never get ridof the plaintiff.

7 VR 595 at 600

[17] Marjorie Edmunds, known as Terry Edmunds, was the deceased's friend of over 40 years. She gaveevidence along similar lines to her son in relation to the deceased's drinking. She said that the deceased hadbeen a heavy drinker for the last 10 years of her life and gave general evidence of the deceased becomingintoxicated and incontinent at social occasions.

[18] I accept that the Edmunds were close friends of the deceased and were to some extent uncomfortablein giving public accounts of her alleged intoxication. I further accept that the deceased sometimes showedthe effects of alcohol consumption at social functions over the years. However, I do not accept the evidencewas sufficient such as to make out a claim of persistent heavy drinking on the part of the deceased and

consequential dependence. Further, the evidence did not make out the claim that the plaintiff's role asalleged "carer" to the deceased was more onerous as a consequence of her drinking. It is unfortunate in theoverall circumstances that such evidence was led as it besmirched the reputation of the deceased.

[19] Walter Desmond Humphries was called by the plaintiff. He was, together with his wife, the bodycorporate manager of the Port Merion apartments where the unit of the deceased was located. He gaveevidence of his observations of the relationship between the plaintiff and the deceased and the drinkinghabits of the deceased between 1990 and 1992. He deposed that he regarded the relationship between theplaintiff and the deceased to be comparable to that of mother and son. He said that he observed the plaintiffperforming domestic tasks such as washing and cooking. Mr Humphries observed that the plaintiff took the


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deceased out in his car on a regular basis. He gave evidence that he regarded the deceased as a heavydrinker and saw her on one afternoon at a barbecue "quite affected by alcohol". However, in cross-examination Mr Humphries conceded that his observations were limited to about three or four incidents.

[20] The plaintiff claimed that he was entitled to the Port Merion property and an appropriate sum to

maintain him. This was reduced during the trial to an amount commensurate with the value of a life interestin the Port Merion property. Initially, there was no evidence led on behalf of the plaintiff as to the value ofhis claimed interest in the Port Merion property. After some observations by the court an affidavit by oneGregory Alan Morris, a certified practising valuer in Queensland, with 20 years' valuation experience wasfiled on behalf of the plaintiff when the trial was well advanced. He deposed that the value of a life interestof 25 years in the Port Merion unit would be $292,604. His valuation was based on an estimation of currentmarket rent of $320 per week. The latter figure was deposed to by Lynette Smith, a qualified real estateagent in Queensland with five years' experience. Again, the affidavit of Smith was filed very late. NeitherMorris nor Smith were called. The defendant objected to the late filing of the affidavits but was content toaddress the affidavits in any event. There was no evidence as to the life expectancy of the plaintiff.

[21] Finally, the plaintiff relied upon an affidavit sworn by Dr Tony Bose, the treating general practitionerof the plaintiff. Dr Bose deposed that he has treated the plaintiff for a year and that the plaintiff suffers fromdiabetes which affects his life expectancy and his capacity to work. However, in his affidavit Dr Bose gaveno indication as to the extent and manner the plaintiff's illness has affected him. Aside from accepting thatthe plaintiff suffers from diabetes, I can make no further finding of fact on the basis of Dr Bose's affidavit.The evidence was inconclusive and unsatisfactory. There was no satisfactory evidence before me to

7 VR 595 at 601

establish that the plaintiff is incapacitated for work or that he was so incapacitated or suffered from illhealth during the lifetime of the deceased such that she knew or ought to have known that he wasdependent upon her.

The evidence for the defendant

[22] The defendant, Harry Meares Hearn, was the solicitor for the deceased during her lifetime and theexecutor of her will. He gave evidence on behalf of the estate.

[23] Mr Hearn is a solicitor with more than 40 years' experience in probate. He had been the deceased'ssolicitor since 1987. He drew up her will in 1987 and a codicil to the will in 1993. He saw her on a regularbasis including attendances at her home in Melbourne. He estimated that the deceased came to his officesaround five to seven times a year. He said that in all the years he acted for the deceased she only mentionedthe plaintiff to him on one occasion in relation to the legacy provided for the plaintiff in her will. Mr Hearnsaid that he observed the deceased to be a fit and active person, who enjoyed walking and was a volunteerfor the Anti-Cancer Council for over 15 years. It was his observation that the deceased declined physicallyin the last 18 months of her life, but deteriorated mentally only in the last four to five months. He deposedthat the deceased enjoyed travel and his evidence, supported by the passport of the deceased, refuted theplaintiff's claims of the amount of time the deceased spent with him on the Gold Coast each year. Mr Hearngave evidence that when he had attended the deceased at her home in a professional capacity he had neverseen any indication that she had difficulty looking after herself nor on any occasion did he ever see herintoxicated or affected by alcohol. However, Mr Hearn acknowledged that he knew the deceased onlyprofessionally and not socially.

[24] Evidence was given on behalf of the defendant also by Ranald Hugh McCowan, a Queensland solicitorwho acted on behalf of the deceased in relation to the purchase of the Port Merion unit. Mr McCowan metthe deceased in 1988 and he said that the deceased told him that the plaintiff would live-in, be the"caretaker" of the unit and keep it available for her use. In cross-examination Mr McCowan said thedeceased discussed with him the tax implications of having a tenant. He said that in Queensland, stampduty concessions are available for an untenanted place of residence. It was Mr McCowan's evidence thatthe deceased discussed the plaintiff's living in the unit with him in this context.

[25] The defendant also called Betty Jean Laver, cousin and friend of the deceased. The defendant relied


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upon an affidavit sworn by one Craig Hendricks, a second cousin of the deceased. Mr Hendricks was notrequired to attend court for cross-examination. Betty Laver said that she and the deceased enjoyed socialoutings together and that she had stayed with the deceased at the Port Merion unit in 1995. She deposedthat the deceased was fit and alert as late as May 2000 and that when she stayed with her in 1995 she was

active. Mrs Laver said that the plaintiff was working when she visited in 1995 selling mobile phones andwas not at the deceased's beck and call. She said that in 1998 the deceased had wanted to sell the unit butdid not do so because she would lose money on it due to the Asian economic crisis. Mrs Laver believed thatthe plaintiff was only looking after the unit until the deceased decided what she would do with it. MrsLaver gave evidence that the deceased had on no occasion been embarrassingly drunk when she was withher but that she had seen the deceased affected by alcohol in her home. In cross-examination Mrs Laversaid the sorts of things she and the deceased did together, such as attending the theatre and the ballet, didnot involve

7 VR 595 at 602

alcohol. In further cross-examination Mrs Laver accepted the suggestion that the deceased did not drink inher company but may have done so in the company of others.

[26] In an affidavit filed on behalf of the defendant Craig Hendricks deposed that his mother was thedeceased's cousin and that he and his sister were two of the beneficiaries of the legacies under the

deceased's will. He deposed that the deceased regularly visited the Hendricks family in Sydney over the last20 years of her life and that when on the three occasions he saw the deceased from 1995 to 1997 she was"active and lucid". Mr Hendricks deposed that the deceased hardly ever mentioned the plaintiff, althoughhe knew that the plaintiff looked after the Port Merion unit for the deceased.

Findings on the evidence

[27] There were a number of key aspects of the evidence that were critical to the plaintiff's case. They werethe drinking activities of the deceased, the provision of accommodation by the deceased for the plaintiffand the matter of alleged acknowledgments by the deceased during her lifetime of the position of theplaintiff with respect to the Port Merion property. I consider each of these aspects separately.

(A) The drinking activities of the deceased

[28] I accept that from time to time the deceased would drink alcohol at social functions. I accept, also, thaton some occasions she may have become intoxicated quickly and suffered physically as a result. I acceptthat on those occasions the deceased may have required assistance from others. On those occasions, ofwhich few were identified, the deceased required assistance from those with her -- on some instances it wasthe plaintiff, on other occasions, it was a member of the Edmunds family. In any event, I cannot be satisfiedon the evidence that there were other than a few occasions and in all likelihood no more than 10 episodes.Significantly, the deceased was able to live alone in Melbourne until almost the end of her life withoutassistance. She did not require a resident carer. On the evidence I reject any suggestion that the deceasedsuffered from an alcohol based problem such that she was dependent on the plaintiff.

(B) The provision of accommodation by the deceased for the plaintiff

[29] I am not satisfied that the deceased was dependent on the plaintiff or, more importantly, that the role

was reversed. At most, the plaintiff was a caretaker permitted by the deceased to live rent-free at the PortMerion property in return for his caretaking duties. The arrangement was one that was convenient andfinancially advantageous to the deceased. The apartment was occupied for security purposes andmaintained and, further, ongoing accounts such as electricity and telephone were paid by the plaintiff. Inmy view, the arrangement between the plaintiff and the deceased was based on friendship and convenienceand no more. There was no obligation or duty recognised by the deceased. In addition, none was owed.

(C) The acknowledgment by the deceased during her lifetime of the plaintiff's position

[30] The plaintiff relied upon the fact that the defendant had assured him that he would always be able to


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live at the Port Merion property and that she was concerned as to what would happen to him after she died.In my view, these statements were of no consequence and were insufficient to establish any

7 VR 595 at 603

obligation or duty or acknowledgment thereof owed by the deceased to the plaintiff. Indeed, I accept that

the plaintiff contemplated selling the Port Merion unit in 1998. The plaintiff was no more than a caretaker.[31] I turn then to consider the relevant legislation.

The background history to the legislation

[32] Victoria was the first Australian jurisdiction to enact testator's family maintenance provisions under theWidows and Young Children Maintenance Act 1906. The legislation was largely based upon New Zealandlegislation, the Testator's Family Maintenance Act 1900 (NZ). The first family provision legislation was notenacted in England until 1938.1

[33] Initially, s 91 of the Administration and Probate Act (and its equivalent legislation in otherjurisdictions) was a remedial provision for the widow and dependent children of a testator as Williams Jobserved inLieberman v Morris:2

[T]he dominant purpose ... is to enable the court to remedy a breach by a testator of his moral duty as a wise andjust husband or father to make proper provision, having regard to his property, for the maintenance, education andadvancement of his family.

[34] Over the years the family provision legislation in Victoria, in tandem with other jurisdictions, has beenexpanded to enable a court to order provision from a deceased's estate whether the deceased died testate orintestate,3 to order provision for extramarital children.4 With the effluxion of time and the change incommunity standards and mores the Parliament has amended the family provisions to encompass spouses(not merely widows).

[35] Ultimately, the legislation has been expanded so that potential applicants might include persons havinga family or other relationship with the deceased. It is the most recent amendment that enables the plaintiffto bring the present claim.

Section 91 of the Administration and Probate Act

[36] Section 91 of the Administration and Probate Act in its present form was inserted by s 55 of the WillsAct 1997. It provides:

Power of the Court to make maintenance order

(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of adeceased person for the proper maintenance and support of a person for whom the deceased had responsibility tomake provision.

(2) The Court must not make an order under sub-section (1) in favour of a person unless --

1a) that person has applied for the order; or1b) another person has applied for the order on behalf of that person.

(3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinionthat the distribution of the estate of the deceased person effected by --

2a) his or her will (if any); or2b) the operation of the provisions of Part I, Division 6; or1c) both the will and the operation of the provisions --


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7 VR 595 at 604

does not make adequate provision for the proper maintenance and support of the person.

(4) The Court in determining --

3a) whether or not the deceased had responsibility to make provision for a person; and3b) whether or not the distribution of the estate of the deceased person as effected by --

1. the deceased's will; or1. the operation of the provisions of Part I, Division 6; or1. both the will and the operation of the provisions --

1 makes adequate provision for the proper maintenance and support of the person; and2c) the amount of provision (if any) which the Court may order for the person; and1d) any other matter related to an application for an order under sub-section (1) --

must have regard to --

1e) any family or other relationship between the deceased person and the applicant, including thenature of the relationship and, where relevant, the length of the relationship;

1f) any obligations or responsibilities of the deceased person to the applicant, any other applicantand the beneficiaries of the estate;

1g) the size and nature of the estate of the deceased person and any charges and liabilities to whichthe estate is subject;

1h) the financial resources (including earning capacity) and the financial needs of the applicant, ofany other applicant and of any beneficiary of the estate at the time of the hearing and for theforeseeable future;

1i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;1j) the age of the applicant;1k) 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;

1l) any benefits previously given by the deceased person to any applicant or to any beneficiary;1m) 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 thebasis upon which the deceased had assumed that responsibility;

1n) the liability of any other person to maintain the applicant;1o) the character and conduct of the applicant or any other person;1p) any other matter the Court considers relevant.

[37] Prior to the amendment to s 91 the testator's family maintenance provision vested in the court a broaddiscretion. Essentially the approach of the courts had been to adhere to the classic formulation of the court'stask upon failure to make provision, as articulated by Salmond J inIn re Allen (deceased); Allen v

Manchester:5

The provision which the Court may properly make in default of a testamentary disposition is that which a just andwise father would have thought it his moral duty to make in the interests of his widow and children had he beenfully aware of all the circumstances.

7 VR 595 at 605

[38] As observed by Ormiston J in Collicoat v McMillan6 this passage is the most frequently cited in thejurisdiction of testator's family maintenance. See eg Coates v National Trustees Executors and Agency CoLtd7 andHughes v National Trustees, Executors and Agency Co of Australasia Ltd.8


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[39] Collicoatand also Grey v Harrison9 were concerned with the claims of adult children and looked atwhat Ormiston J described as "correlative notions" of moral claim and moral duty. Each case concerned anadult son,10 a class of claimant courts have been traditionally hesitant to provide for,11 who were notsuccessful in life. In Collicoatthe son was described as the "lame duck" of the family. In Grey v Harrison

the son was an alcoholic without employment and who after the break up of his family had gone throughperiods of homelessness. In each case the neediness of the applicant corresponded to the moral duty of thetestator to provide.

[40] Both cases were hesitant as to High Court authority in Singer v Berghouse.12 In that case the majorityjudgment of Mason CJ, Deane and McHugh JJ questioned in obiter the usefulness of notions of moralityand moral duty in this area of the law. But in Grey as Callaway JA observed it is only a breach of moralduty which can justify judicial intervention in testamentary freedom, an important right in a free society.His Honour stated, at 365:

The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted formany years. It supplies the norm that the legislature left unexpressed ... It also reflects the view that there is nolegislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternativelythat there is no judicial reason to exercise the statutory discretion except for the purpose of remedying such a

breach. [Emphasis in original.]

[41] Upon introduction of the amending Bill to Parliament the Attorney-General in the second readingspeech stated:

This bill introduces amendments to the act to enable a wider group of people to apply to the court for testator'sfamily maintenance. The bill empowers the court to make an order for provision out of the estate of a deceased

person for the maintenance and support of a person for whom the deceased had responsibility to make provision.The bill does not include a list of eligible applicants for testator's family maintenance, instead leaving it to the courtto determine on a case-by-case basis whether provision should be made for a particular applicant, which is a moreequitable method of dealing with testator's family maintenance applications. To ensure that only genuineapplications are made, the bill allows the court to order costs against an applicant if the court is satisfied that theapplication was made frivolously, vexatiously or with no reasonable prospect of success.

The bill requires the court, in determining whether or not provision should be made for a particular applicant, tohave regard to a list of factors, including: any family or other relationship between the deceased person and theapplicant, including the nature of the relationship and where relevant, the length of the relationship; any obligationsor responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate; thesize and nature of the estate of the deceased person; the

7 VR 595 at 606

financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant andof any beneficiary of the estate at the time of the hearing and in the foreseeable future; and any benefits previouslygiven by the deceased to any applicant or beneficiary.

[42] The post amendment case law has made it clear the common law moral duty or obligation to providestill permeates codification and that the significant changes have been, first, the possibility of applicationby a wider class of persons and, secondly, the application by the court of criteria in making itsdetermination whether or not a claimant should have been provided for or should have been moregenerously provided for.

[43] Since the amendments were enacted there have been very few cases concerned with the expandedclasses of applicants.Leahey v Trescowthick13 and Sherlock v Guest14 were both cases related to claims ofgrandchildren whereasMarshall v Spillane15 dealt with the claim of an adult brother of the deceased. In allthese cases it was held that there is no longer a requirement to meet a prescribed familial relationship ratherto satisfy the criteria of s 91.

[44] The application of the criteria keep the court's task as a factual rather than philosophical determinationof moral duty as cautioned against by Ormiston J:16


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I consider that the expression "moral duty" remains a simple and convenient way of referring to the obligation,hypothetical as it may be in some cases, resting upon a testator to make a wise and just assessment of the interestsof all persons who might fairly ask to be taken into account in determining what adequate provision for propermaintenance and support should have been made for them had the testator been fully aware of all the relevantcircumstances. Having regard to what I have said, it is unnecessary to consider further in detail the meaning of theword "moral" or indeed the application of theories of morality to the law which may be fairly left to such writers asH L A Hart, Lon L Fuller, John Rawls [and] John Finnis ...

It is sufficient to say that the word "moral" used in connexion with the legislation is apt to describe what isgenerally considered according to accepted community standards to be the obligation of a testator to do what isright and proper for those members of his family whom one would expect to be entitled to a share in the distributionof his or her estate on death.

[45] In the decision of McDonald J in Coombes v Ward17 the importance of moral obligation or duty wasrecognised again. His Honour followed the authority ofGrey v Harrison and its affirmation of a breach ofmoral duty underpinning this novel area of law.

New South Wales

[46] In New South Wales the analogous legislation is the Family Provision Act 1982 (NSW). Under this

legislation a person unprovided for or inadequately provided for under a will may claim under s 6 on thebasis of being an "eligible person".

[47] An eligible person is a spouse, former spouse, domestic partner or child of the deceased and undersubs (6)(d) an eligible person may also be a person:

2i) who was, at any particular time, wholly or partly dependent upon the deceased person, and1 7 VR 595 at 607

1ii) who is a grandchild of the deceased person, or was, at that particular time or at any other time, amember of a household of which the deceased person was a member.

[48] The test for persons who cannot bring themselves within the specified categories of familialrelationships or of domestic partner is thus twofold. First, a relationship of dependence and, secondly,membership of the same household for a period of time.

[49] One of the initial questions addressed by the New South Wales courts was whether this new categoryof eligibility was still bound up in the notion of family, albeit an extended one.

[50] In Churton v Christian18 Mahoney JA was of the opinion that the objective of the legislation wasprecisely to allow for claims by persons who did not fall within the idea of the family. On the other hand,Priestley JA felt that the idea of family continued to underpin legislative developments in this jurisdiction.

[51] A further question for the courts has been whether or not dependency is essentially a financialconsideration. There has been competing authority.

[52] InRe Fulop (deceased)19 McLelland J was of the opinion that "dependent upon" denoted the provision

of financial or material needs, whereas inBall v Newey20

Samuels JA held that dependency was not astrictly financial concept. His Honour held that the ordinary usage of the word "means a condition ofdepending on something or someone for what is needed".

[53] Samuels JA emphasised the need for the court to examine a relationship in its entirety in order todetermine the question of dependency and in order to "exclude situations which might present thesimulacrum but not the substance of dependency". His Honour gave the example of students living in ashared house where there will be some degree of co-operative living, such as the sharing of expenses anddomestic tasks. Such an arrangement will not, however, amount to relations of dependency amongst thehouseholders. It is this recognition that dependency is a factual question which is consistent throughout the


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case law.21

[54] Finally, on the question of dependency, inMckenzie v Baddeley22 it was held that the phrase "partlydependent" does not mean substantially, rather it suggests more than minimally or significantly.

[55] Once an applicant has established that he or she is an "eligible person" under s 6(1)(d) of the Act thenunder s 9 the court must determine what if any provision should be made out of the deceased estate. Indoing so the court may under s 9(3) take into consideration certain factors.

9. Provisions affecting Court's powers under secs 7 and 8

...

(3) In determining what provisions (if any) ought to be made in favour of an eligible person out of the estate ornotional estate of a deceased person, the Court may take into consideration:

4a) any contribution made by the eligible person, whether of a financial nature or not and whether byway of providing services of any kind or in any other manner, being a contribution directly orindirectly to:

1. 7 VR 595 at 6082. the acquisition, conservation or improvement of property of the deceased person, or2. the welfare of the deceased person, including a contribution as a homemaker,

24b) the character and conduct of the eligible person before and after the death of the deceased

person,

3c) circumstances existing before and after the death of the deceased person, and2d) any other matter which it considers relevant in the circumstances.

[56] These factors according to McLelland J inRe Fulop (deceased) "when added to facts which render the

applicant an 'eligible person' give him or her the status of a person who would be generally regarded as anatural object of testamentary recognition by the deceased".23 The New South Wales cases are of assistancebecause they are based on similar concepts to the Victorian legislation.

[57] A useful recent discussion of both the concept of dependency and the factors which render an applicanta natural object of testamentary recognition and the interrelatedness of the determination of both questionsis that ofMao v Peddley24 in which the applicant claimed on the bases of being the deceased's de facto wifeor alternatively having been in a relationship of dependency with him. The applicant had had a brief andperhaps ongoing sexual relationship with the deceased in a casual fashion since late 1989 and had lived forthe most part since 1991 in the deceased's property in Sydney. The deceased had lived in Thailand since1989 and it was reckoned that he and the applicant resided together for no more than 66 days during theeight and a half year period between 1991 and his death in 1999. The applicant's claim as de facto wife wasdismissed in the main because she had attained permanent residency by claiming to be someone else's defacto wife during the same period but also because the criteria of a domestic relationship imported into the

Family Maintenance Act by s 4 of the Property (Relationships) Act were not present.

[58] The master looked at a number of circumstances of the relationship such as at what periods a sexualrelationship existed and whether or not it had been an exclusive one, whether the applicant performeddomestic tasks for the deceased when he was in Sydney, whether or not they had holidayed and attendedsocial functions together and whether or not they had been acknowledged by family and friends as acouple. These signifiers of intimacy were not present in the relationship and it was found that the applicantwas more akin to a caretaker or housekeeper in exchange for free-rent. In also dismissing the applicant'sclaim on the basis of being in a relationship of dependency his Honour averted to the same considerationswhich made the relationship more properly described as one of mutual convenience.


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[59] In my view, the new statutory provisions enshrined in s 91 of the Administration and Probate Actwhilst expanding the class of eligible persons effectively constituted a codification of the approach taken atcommon law to testator's family maintenance claims. In my view, the proper approach to the newlegislation remains unchanged from that described by Ormiston J in Collicoat, namely, of searching out the

touchstone of what a wise and just testator would have thought was the moral duty. Furthermore, there isnothing in the7 VR 595 at 609

amendments or the extrinsic materials to indicate that the Parliament intended to constrain the freedom ofthe testator unless the testator breached a moral duty owed to the applicant.

[60] I turn then to consider each of the criteria set out in s 91(4) of the Administration and Probate Act andapply these principles to the plaintiff's claim.

Application of legislative criteria contained in s 91(4)(e)-(p) to plaintiff's claim

(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

[61]No family relationship existed between the applicant and the deceased. The two were friends and hadbeen for around 25 years. It is difficult however to discern the depth of their friendship.

[62] The applicant was one of only five beneficiaries under the deceased's will. Furthermore, the deceasedallowed the applicant to live in her property rent-free. On one hand it seems she did so out of anacknowledgment of his loyalty and her concern for him. On the other hand it seems the arrangement wasone of mutual convenience which the deceased saw as suiting her financial and real estate interests.

[63] The varied extent to which the relationship was recognised by others attests to its ambivalent nature.For some friends of the deceased the relationship was a close one akin to that of a mother and son, whilstfor others the applicant hardly seemed to figure in the deceased's life.

[64] I conclude the relationship was one of friendship but no more. I do not accept the applicant was like ason to the deceased.

(f) Any obligations or responsibilities of the deceased person to the applicant, any other applicant and

the beneficiaries of the estate

[65] The deceased had no legal, moral or financial obligation to the applicant nor to any other person.Statements made to the applicant by the deceased to the effect that he should regard the Port Merion unit ashis home cannot be taken as conferring upon the applicant a proprietary interest in the unit. Such statementswere no more than reassurances to a friend that for the present he need not worry about a roof over hishead. Moreover, statements such as "home sweet home" after a drive do not even import this meaning.Such a statement is really just a pleasantry to which no legal or moral obligation could possibly be attached.

(g) The size and nature of the estate of the deceased person and any charges and liabilities to which

the estate is subject

[66] The estate is a large one and not subject to any charges and liabilities except the costs of theseproceedings.

(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 the foreseeable

future

[67] The applicant's financial position is poor. He has some personal debt and no savings. He has not helddown full-time employment for many years. At 50 with outdated qualifications I accept that it will beextremely difficult for him to obtain well-renumerated employment in the future. His financial prospects in


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the foreseeable future are therefore consequently poor.7 VR 595 at 610

(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate

[68] The applicant suffers from diabetes. The medical evidence led on his condition allowed no finding tobe made on the extent to which his capacities are impaired.

[69] I accept generally that the applicant does not enjoy robust health but find that his inability to holddown full-time employment has been more the result of his failure to keep abreast of developments in hischosen field rather than a consequence of ill-health.

(j) The age of the applicant

[70] The applicant is now 50. I accept at this age his employment prospects are diminished.

(k) Any contribution (not for adequate consideration) of the applicant to the building up of the estate

or to the welfare of the deceased or the family of the deceased

[71] The applicant's case has been that he cared for the deceased when she stayed with him on the GoldCoast to the extent that he was unable to work full-time. The applicant's evidence overstated the amount oftime the deceased spent with him and furthermore overstated the problematic nature of the deceased'sdrinking habits. I find that the applicant undertook the functions of a caretaker when the deceased was notresident at the Port Merion property and when she was resident he undertook domestic tasks and did somedriving for her. However these services were well and truly compensated by the rent-free accommodationhe enjoyed.

(l) Any benefits previously given by the deceased person to any applicant or to any beneficiary

[72] The deceased gave the applicant $10,000 out of the will of Walter Urquart. She may have done so atthe urging of Walter Urquart junior or at her own volition, in any event she was under no legal obligation todo so. It was a gift and no more.

(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

[73] I accept that the notion of being maintained like that of dependence is not strictly financial butencompasses any condition whereby one person relies on another for the provision of his or her needs. Iconsider that the notion of being "partly maintained" is a rejection of a requirement of a relationship that ischaracterised by significant financial or emotional inequality, typically the financially dependent wife upona husband or infant children upon parents. However, whilst rejecting these paradigmatic relationshipscaution needs to be exercised in order that any situation of co-operative living may be seen as one of partialmaintenance. As the New South Wales cases make clear each situation needs to be examined carefully onits fact in order to avoid this. Here I am satisfied the applicant was not being maintained wholly or partly bythe deceased. The applicant lived rent-free in the deceased's property in exchange for performing the

services of a caretaker. Throughout this period the applicant supported himself and paid his own bills.

[74]Nothing that the deceased said or did can be taken as an assumption of the responsibility to maintainthe applicant. The $10,000 given by the deceased to the

7 VR 595 at 611

applicant out of the estate of Walter Urquart was a one-off gift signifying gratitude but no ongoingcommitment to provide for or support. The deceased's question to the applicant "What will happen to youwhen I'm gone?" whilst signifying her concern for the applicant's well-being indicated that she had nointention of providing for his future and but merely contemplated how he intended to manage.


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[75] Finally the applicant's case has been based in the main on his claim to have assumed the role of carerfor the deceased and not on her supporting him. However, a moral obligation to provide based on anapplicant's being maintained by or being dependent upon the deceased as Mahoney JA pointed out inChurton v Christian25 is not one where the deceased owes the applicant a debt of moral gratitude; rather it is

the reverse.

(n) The liability of any other person to maintain the applicant

[76] There is no-one under any liability to maintain the applicant. The applicant's family live in Malaysiaand have apparently disowned him.

(o) The character and conduct of the applicant or any other person

[77] The applicant seemed of good character although prone to exaggeration in his evidence. It isunfortunate that he has placed himself in a situation where at the age of 50 he possibly faces a precariousfuture. However it must be observed that it has been the applicant's own poor choices and in particular whatcan only be described as his servile tendency to rely on the largesse of others that has left him so exposed.

(p) Any other matter the court considers relevant

[78] There are none.

Conclusion

[79] It follows from my consideration of the criteria set out in s 91(4)(e)-(p) that the plaintiff has failed tomake out a moral duty owed by the deceased to him. He has failed to satisfy each of the relevant criteria inthe relevant section. Accordingly, the application will be dismissed.

Application dismissed.

Solicitors for the plaintiff:Plotkins Solicitors.

Solicitors for the defendant:Aitken Walker & Strachan.

1 See the Inheritance (Family Provision) Act 1938 (UK); see, also, Dickey, Family Provision After Death, (1992), pp 2ff fora detailed historical survey of the enactment and development of family provision legislation.

2 (1944) 69 CLR 69 at 92.

3 See s 5 of the Administration and Probate (Family Provision) Act 1962.

4 See Status of Children Act 1974.

5 [1922] NZLR 218 at 220-1.

6 [1999] 3 VR 803.

7 (1956) 95 CLR 494 at 519, 527.

8 (1979) 143 CLR 134 at 147.

9 [1997] 2 VR 359.


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10 And also adult daughters in Collicoat.

11 See egIn re Sinnott (deceased) [1948] VLR 279.

12 (1994) 181 CLR 201 at 209.

13 [1999] VSC 409 (Warren J, 22 October 1999).

14 [1999] VSC 431 (Beach J, 12 November 1999).

15 [2001] VSC 371 (Byrne J, 28 September 2001).

16 [1999] 3 VR 803 at 819.

17 [2002] VSC 61.

18 (1988) 13 NSWLR 241.

19 (1987) 8 NSWLR 679 at 682.

20 (1988) 13 NSWLR 489 at 491.

21 See espParkinson v Burns [2000] NSWSC 991 (Macready M, 23 October 2000).

22 Unreported, NSW Court of Appeal, 3 December 1991.

23 At 681. See, also, Priestley JA in Churtonat 252.

24 [2001] NSWSC 254 (McLaughlin M, 9 April 2001).

25 13 NSWLR 241 at 244.

P G WILLISBARRISTER-AT-LAW


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4 of 10 DOCUMENTS: Unreported Judgments NSW

54 Paragraphs

MAIR v HASTINGS; Re Estate of WALLNOFER (dec'd) -

BC200203090

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISIONMACREADY M

4175/01

31 May 2002, 31 May 2002

Mair v Hastings [2002] NSWSC 522

Family Provision -- Claim by a de facto partner given a life interest in jointly owned real estate --

Long relationship of 31 years and contributions to real estate -- Plaintiff granted real estate in fee

simple.

Macready M

[1] This is an application under the Family Provision Act in respect of the estate of the late RomanoGiovanni Wallnofer who died on 5 April 2000 aged 63 years.

[2] He was survived by the plaintiff, who submits that he lived with the deceased as his de facto partner atthe date of death. The deceased had never married and had no children.

[3] The deceased made his last will on 17 March 1999 and under the terms of that will he appointed theplaintiff and the defendant executor and gave some specific bequests. The first was to his nephew, RonaldWallnofer, and his niece, Marina Stadler, in Italy of his interest in his estates in Italy which basicallycomprised some real estate. He also, in cl3(b), gave a bequest to Ronald Wallnofer of his investment unit at1/43 Barcom Street, Darlinghurst with an option for the plaintiff to be able to purchase it.

[4] In cl3(c) he gave his interest in his real estate known as 180 Paddington Street, Paddington upon trustsbasically to provide for the plaintiff to be able to reside in the property. The estate only had a half interest inthat property and the other half interest was owned by the plaintiff. The provision was a detailed one and, inparticular, included the provision to enable the plaintiff during his lifetime to sell and have the fundsreinvested in further real estate.

[5] In cl4 he gave the residue of his estate to the plaintiff after payment of all his debts.

[6] The present situation in the estate is that there are four main assets. There is the Italian real estate worth$80,802, the unit at Darlinghurst worth $267,500 and the half interest of 180 Paddington Street worth$382,500. The residue of the estate has been got in and amounts to $105,071.

[7] Plaintiff's costs have been incurred in the amount of $24,620, defendant's costs $33,040. There areprobate costs of $8,550. There also are quite a number of liabilities and taking into account these costs (towhich I referred) the total costs and liabilities in the estate amount to $198,142. It is clear, therefore, thatthere will be a shortfall of residue of at least about $94,000.


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[8] The practicality is that the Italian estate has in fact been taken by the nephew and the niece in Italyunder Italian law and the executor cannot access that to apportion part of the debts to it or in any other wayreach it. Accordingly from a practical point of view the shortfall of $94,000 will have to be borne pro rataby the Darlinghurst unit and a half share in Paddington Street. That means that Paddington Street will bear

$55,000 and the unit $39,000.[9] I will deal with a little of the history of the relationship of the parties. The deceased was born in 1937and the plaintiff in 1947, both of them in Italy. The deceased finished his high school in Italy in 1964 andthe plaintiff, who studied architecture, finished his tertiary qualifications in 1968. In 1969 the plaintiff andthe deceased met in Paris and they commenced to live together. At that stage the plaintiff was studying andthe deceased was working as a hairdresser. In May 1971 they migrated to Australia together and theythereafter lived at Rose Bay and Paddington in rented accommodation. The plaintiff apparently is handyand accomplished in that area because apparently even in those days he renovated the Paddington house toobtain a discount in rent. The plaintiff worked as a waiter and a painter and the deceased as a hairdresser.

[10] In 1974 the plaintiff obtained a position with Qantas as a flight steward. He had good qualificationsbecause his language skills were much in demand by the airline. They continued to press him to takeoverseas postings which would improve his position but he declined for reasons which related to lookingafter the deceased.

[11] It was in 1976 that the plaintiff and the deceased bought the house at 180 Paddington Street,Paddington for $43,000. In 1983 the plaintiff bought the unit in Darlinghurst Road. It was also in that yearthat the deceased was admitted to hospital for quite some period of time because of binge drinking. He hadbeen an alcoholic for many years and needed treatment.

[12] In 1985 the deceased was admitted to Langton Clinic for detoxification and in 1986 and 1987 thedeceased had hip replacement operations.

[13] There is a note made in 1987 by the deceased in which he promised to leave the plaintiff his share ofthe Paddington house and also his Australian property.

[14] In 1989 the deceased bought the unit at Darlinghurst which is now in the estate. The purchase pricewas $115,000 and the money was raised in part by a mortgage on the parties' jointly owned home atPaddington Street.

[15] The plaintiff turned his skills to renovating that unit. Also in that year the plaintiff bought another unitin that building in Womerah Lane, Darlinghurst for $143,000 on mortgage. He retired in 1991 from Qantasand used his redundancy to pay out the mortgage over the Womerah Lane unit. He sold his DarlinghurstRoad unit in 1992 and bought another one in Womerah Lane. The deceased himself retired in 1994 on aninvalid pension.

[16] The plaintiff made a will in July 1998, leaving his half share of the Paddington house to the deceasedplus certain other provisions. In 1999 the deceased made his will and I have referred to the details of that.

[17] The deceased died on 5 April 2000 while the plaintiff was overseas and the plaintiff came back to findthat he had died. Probate was granted in due course and the proceedings were commenced within time.

[18] The plaintiff says that he was living in a de facto relationship with the deceased for some 31 years andat the date of his death. He also suggests that he was living in a close personal relationship with the

deceased.

[19] Prior to the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999relief was only available under the then Family Provision Act in respect of relationships between a man anda woman. Under the amendments, which took effect on 28 June 1999 there was an extension of the Act,which applied to proceedings which commenced after that date. The amended Act incorporates thedefinition of a domestic relationship in the Property Relationships Act 1984.

[20] That Act applies to domestic relationships which are defined in s5 as follows:-

"5. Domestic relationships


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(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult

persons, whether or not related by family, who are living together, one or each of whom provides the otherwith domestic support and personal care.

(2) For the purposes of subs(1)(b), a close personal relationship is taken not to exist between two personswhere one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a bodycorporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of thefollowing:

4 (a) a child born as a result of sexual relations between the parties,

5 (b) a child adopted by both parties,6 (c) where the domestic relationship is a de facto relationship between a man and a woman, a

child of the woman:

7 (i) of whom the man is the father, or8 (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the

father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of theChildren and Young Persons (Care and Protection) Act 1998).

(4) .....Except as provided by s6, a reference in this Act to a party to a domestic relationship includes areference to a person who, whether before or after the commencement of this subsection, was a party to

such a relationship."[21] It can be seen from the terms of s5(1) that a domestic relationship can be either a de facto relationshipor a close personal relationship.

[22] The definition of de facto relationship itself appears in s4 and is in the following terms:-

4. De facto relationships

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

9 (a) who live together as a couple, and10 (b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the

relationship are to be taken into account, including such of the following matters as may be relevant in aparticular case:

11 (a) the duration of the relationship,12 (b) the nature and extent of common residence,13 (c) whether or not a sexual relationship exists,14 (d) the degree of financial dependence or interdependence, and any arrangements for

financial support, between the parties,

15 (e) the ownership, use and acquisition of property,


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16 (f) the degree of mutual commitment to a shared life,17 (g) the care and support of ch

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