Family Provision Applications – Recent Developments and Decisions

I assume, for the purposes of this paper, that the history of family provision legislation is well known and that there is a degree of general knowledge of fundamental principles underpinned by legislative mechanisms for intervention by courts when eligible applicants have been left without adequate and proper support by a deceased person.

One thing that can’t be escaped is that the concept of who might constitute a person’s family has become quite different as social traditions and attitudes have changed.  Six months ago I appeared in a trial on behalf of respondent executors, the only beneficiaries of their mother’s estate, in response to an application by a woman in her mid sixties claiming adequate provision had not been made out of the deceased’s estate.  The alleged entitlement for the application was based on the premise that the applicant and the deceased had been a close and loving couple that had enjoyed a sexual lesbian relationship throughout a period of common residence over eighteen years and that such relationship made her a ‘spouse’1  by reference to the definition of a ‘de facto relationship’.2  

This is but one example of a changing scene in the area of family provision applications, in this state at least, since legislative changes that were effected not very long ago.3

Without being particularly selective, I have attempted in this paper to comment on a few cases resulting in a way that might not be expected, or that may not necessarily accord with perceived established principles.

Here, in Queensland, we have fewer cases of this type going to trial because of requirements for compliance with a practice direction.  This is not dissimilar to the path taken in the personal injury area where alternative dispute resolution is relied on heavily to dispose of cases.  Change in the legislation itself, widening the parameters for those who may apply for provision, has extended far beyond the widow, or widower, child or dependent (usually a de facto spouse of the opposite sex who had lived in a connubial relationship for 5 years or more for the period ending on the date of death of the deceased).  A de facto spouse now might include a person of the same sex living in a ‘genuine domestic relationship’ for a requisite period of that relationship of no more than 2 years prior to the date of death of the deceased.

I don’t think we can apply the term ‘development’ in the true sense of that word to this jurisdiction at all.  We can talk about changes perhaps, but there is always disparity other than in the application of general principles between one case and another because of the discretion that is given to the courts in making decisions which are largely based on the facts of any particular case.  We have seen an increase in the number of applications by spouses other than those legally married, widowers and stepchildren.  This simply reflects changes in standards, the attitude of the community and an increasing number of second and subsequent marriages, or relationships that result in cohabitation on a genuine domestic basis.  It is fair to say, also, I think, that it is significant that there have been increases in longevity, and wealth, within the community at large.

Let me briefly recap on some general principles. 

Singer v Berghouse4

In 1994, an authoritive re-statement of the approach largely adhered to by the courts was made by the High Court in Singer v. Berghouse5.  The majority of that court made the following comments:

“In Australia it has been accepted that the correct approach to be taken by a court invested with jurisdiction under the legislation of which Act (Family Provision Act) (NSW)) is an example that was stated by Salmon J. [Re Allan v. Manchester (1921) 41 NZLR 218].  In that case His Honour said (at 220-221):

‘The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances’

For our part we doubt that this statement provides useful assistance in elucidating the statutory provisions.  Indeed references to “moral duty” or “moral obligation” may well be understood as amounting to a gloss on the statutory language”.

It is true that in respect of the terms “moral obligation” or “moral duty” the Act is silent.  The jurisdiction of the court is invoked only when, by the terms of Section 41(1) is satisfied, as a matter of exercise of its discretion, that adequate provision is not made from the estate for the proper maintenance and support of, in this case, the adult son of the deceased.  The issue to be determined at the first stage is, as the majority said in Singer at 209:

“……. an assessment of the provision (if any) made was inadequate for what in all the circumstances was the proper level of maintenance etc for the appropriate applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty”.

The comments in Singer about “moral duty “ and “moral obligation” are to be  understood by reference to two opinions of Murphy J.6   In Hughes7, as part of a majority, Murphy J emphasized that a claimant ought not to be put to the obligation of establishing, in addition to the statutory qualification and need, a moral entitlement to secure relief.  In Goodman8  (this time in dissent) he adhered to that opinion.  Unless an applicant is left without adequate provision, he or she is not entitled to an order, even if the circumstances disclose a breach of moral obligation.

Although the obiter remarks by the High Court warn against glossing statutory language with concepts such as “moral duty” and “moral obligation” they are still likely to be adopted and applied but such concepts, it seems, should not be referred to in the reasoning which might put a “gloss” on the statutory language.9

Section 41 of the Succession Act is designed to protect eligible persons where inadequate provision (or no testamentary provision) is made for their proper maintenance and support in life.  Singer really went no further than that. 

Two issues arise for determination.  Firstly, was a disposition (or no disposition) by the deceased not an adequate provision for the proper maintenance and support of the applicant.  This is a jurisdictional question which is determined at the date of death of the deceased.10     The second issue, if the first is answered affirmatively, is that the court, in exercising its discretion to make such provision it thinks fit, must take into account relevant facts existing at the time of making the order.11    This process in two stages, contemplated by the legislation involves resolution of questions of fact, notwithstanding the exercise of value judgments in determining what is adequate and proper.

From Singer to Vigolo

Until Vigolo v Bostin12  was heard by the High Court, there had been numerous arguments for preserving emphasis upon moral duty to test the obiter remarks Singer, that had been so often referred to, and some courts had tended to regard them as criticism of the terminology which had grown up around the notion of “proper” maintenance and support. 

For example, in Collicoat v McMillan13,  Ormiston J criticised the adoption of Murphy J’s process of reasoning which lead to the High Court’s remarks in Singer.  His Honour14  regarded what had occurred was to mistake the question of an applicant’s moral claim with the will maker’s moral duty.  In his view, the expression “moral claim” had always been treated as a convenient shorthand expression referring to the right correlative to the duty imposed on testators to make adequate provision for the proper maintenance and support of the persons within the specified class and that “moral obligation”15  reflects a duty resting on a testator to not merely make adequate or sufficient financial provision for members of his or her family in a specified class but an obligation to measure that adequacy or sufficiency by reference to what is right and proper according to accepted community standards.  His Honour went on to talk of what is right and proper, and thus what the wise and just testator must do, is not determined by the “character and conduct” of each applicant by what the testator ought to have felt in duty bound to provide notwithstanding any defects in character or conduct but nevertheless having due regard to the nature of the relationship with and their treatment (whether morally reprehensible or the opposite) of the testator during his or her lifetime.

In Williams v Aucutt16,  the New Zealand Court of Appeal held that a perceived emphasis upon “need” involved giving too much weight to one part of the legislation to the detriment of the discretion arising from the use of the word “support” which, it was said, should be given its usual dictionary meaning of “sustaining, providing comfort” such that where there is no economic need the proper support may be met by a legacy of a moderate amount.

In Grey v Harrison17  the Victorian Court of Appeal said at 366:

“It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit.  Rights and freedoms must, of course, be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with the testator’s dispositions unless he or she has abused that right.  To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else.  In conferring the discretion in the wide terms found in section 91, the legislature intended it to be exercised in a principled way.  A breach of moral duty is the justification for curial intervention and simultaneous limits its legitimate extent.  So much may be derived from the concept of ‘proper’ maintenance and support but also, and more fundamentally, from those considerations.”

Grey was cited18  for the proposition that the jurisdictional pre-condition stated as part of the two-stage test in Singer’s case could not be made out unless the court was satisfied the deceased had failed, by his will, to fulfill his moral duty to a younger son.  The same sentiments were expressed by McDonald J in Coombes v Ward19  and the same path had been followed by Judges in Tasmania20  and Western Australia.21

Such a trend to debate the correctness of reliance on what was said in Singer could hardly be said to have extended to judicial writings in Queensland although in Chapman v. Chapman22  Cullinane J expressed a view that moral claim and moral duty, remained relevant by saying:

 “the appellant accepted His Honour’s finding that the deceased owed a moral duty to the respondent which had not been satisfied by their bequest ..… on the other hand the moral claim of the appellant was a very strong one”.

In a paper presented to a QLS Succession Law Conference in October 2002, further  developing one he had previously delivered at one earlier that year, His Honour Judge Alan Wilson SC,23  carefully examined these cases and other academic writings to show that the High Court’s dictum in Singer was wrong in that “it ignored the historical, societal and philosophic underpinnings upon which the remedy was constructed”.

Vigolo v Bostin

In Vigolo v Bostin,24  the question of financial need was not argued. The case was based upon a moral claim.  From an estate of nearly $2 million the testator had made no provision for the applicant (appellant) but had divided it equally between his four other children.  The applicant and his wife owned assets worth in excess of $2 million.  It is worth noting some of the comments by the Judges in that case.

Gleeson CJ said:25

“In Singer v Berghouse, Mason CJ, Deane and McHugh JJ doubted that the statement of Salmon J provided useful assistance in elucidating the statutory provisions.  I do not share that doubt.  I add, however, that it is one thing to seek assistance in elucidating statutory provisions, and another to substitute judicial exposition of statutory purpose for the legislative text.  Their Honours went on to describe references to “moral obligations” as a gloss on the statutory text.  If, by that, they meant that such references are not to be used as a substitute for the text, I agree.  If they meant that such references are never of use as part of an exposition of legislative purpose, then I regret that I am unable to agree.”

Gummow and Hayne JJ said, in effect, that the evolution of legislation of this kind indicated the need for caution in a continued reiteration, as an aid to construction of modern legislation, of the moral duty owed by testators to their spouses and children (that had been the focus of the statement of principle in Allen).  They concluded an extended discussion of the subject by saying:

“’Moral duty’ may often have been used as a convenient shorthand expression intended to do no more than invite attention to the questions presented by the relevant legislation.  Its use, however, has led to reference being made to the ‘moral claims’ of those who seek further provision and this is an expression which is liable to being misunderstood just as its progenitor ‘moral duty’ may mislead.  It is therefore better to forego any convenience that these shorthand expressions may offer in favour of adherence to the relevant statutory language.  In Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 29, 46, Kirby P and Sheller JA correctly indicated that what was said in the joint judgment in Singer should henceforth provide an appropriate guide to the constructions and operation of the family provision legislation.”

Callinan and Heydon JJ said:

“We would not be reluctant at least in some cases to use the expressions ‘moral duty’ and ‘moral obligation’, and to apply the concepts underlying them, which include the idea of ‘moral claims’.  It seems to us that there are several material indications in the Act that moral considerations may be relevant.  But before we refer to those indications we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act.  Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities and dispositions may be relevant.”

They concluded by saying:26

“For many years therefore several Justices of this Court have found it convenient and generally useful to resort to concepts of a moral duty and a moral claim in deciding both whether, and how much, provision should be made to a claimant under the Act.  In our respectful opinion they have not been wrong to do so.  These are not concepts alien to, or in any way outside, the language of … the Act.”

Recent cases

Last year in a case heard by Justice McKenzie, Powell v Monteith,27  the claim was by a stepson of Mrs Powell.  She had left, by her will, furniture and chattels to a friend and the residue to be divided equally between the Queensland Cancer Fund and the National Heart Foundation.  After costs, the net estate for distribution was $235,000.

In her will she specifically expressed her wish that the applicant and another stepson who had died in December 2002 would not receive any part of her estate “because they did nothing for their father, my late husband, and nothing for me and I do not consider that they are deserving of anything”.

The applicant was 63 years of age at the time of his stepmother’s death.  His father had married the testatrix in October 1951.  The applicant was receiving Centrelink benefits and mowed lawns for extra cash.  He had $40,000 in the bank which he had inherited from his natural mother.  He didn’t have much else and he lived with his half brother in a house at Caloundra where he paid rent.

His Honour placed some significance on the fact that the testatrix had taken the applicant’s father’s interest in real property that was the major asset which passed by survivorship to her.  It is clear that there was tension in the case between the principle of considering whether a step-parent’s assets had been derived in part from funds or sources of the natural parent of the stepchild and the distant nature of the relationship between the testatrix and the applicant over the years.  There was uncontradicted evidence that the applicant did perform acts to benefit the testatrix as well as his father.  His Honour concluded the applicant was left without adequate provision for his maintenance and support and went on to consider what would be appropriate by way of provision. 

Questions of whether or not differential provisions should apply to an application under Section 41(1) of the Act by a stepchild compared with that of a natural child, and the relevance that some part of a deceased’s estate was derived from the stepchild’s father, were considered by Mullins J in Freeman v Jaques,28  at first instance.  There were applications by seven stepchildren, being the children from the deceased’s late husband’s first marriage.  They were seen as stepchildren in name only, there being no familial relationship between any of them and the deceased at all.  Their ages ranged between 53 and 61.  The estate, at the date death, was valued at approximately $1 million.  The whole of it was bequeathed to a friend of in excess of 30 years, and who had acted as the deceased’s carer in the latter years of the deceased’s life after the applicant’s father had died five years previously.  The respondent was 87 years old. 

Mullins J surveyed a number of relevant cases29  and concluded that the notion of “differential provision” is relevant only where an application requires a comparison of the respective relationships of the stepchildren and natural children to the same parent.  She said:30

“The notion of ‘differential provision’ is not a matter of principle, but merely a shorthand way of acknowledging that in some instances the circumstances of the stepchild’s relationship with the stepparent may be different from the relationship of the natural child with the same parent in ways that are relevant for the purpose of determining the jurisdictional issue in the family provision application.”

 At paragraph [49], her Honour went on to say:

“The ordinary principles that apply for determining the jurisdictional issue of any applicant are the starting point for determining the jurisdictional issue in relation to a claim for family provision by a stepchild against the estate of a stepparent.  The circumstances of the step relationship itself may affect the application of these principles, for example, the degree of dependence of the stepchild on the stepparent may be affected by the living arrangements for the stepchild or when the relationship commenced.  An additional matter that may be relevant in determining the jurisdictional issue in the step relationship situation, by virtue of that relationship, is whether the stepparent’s assets have been derived in part from the funds of resources of the natural parent of the stepchild.  See re Calligan at 794, re Fulop at 683 and McKenzie at para [60].”

 The applicants in Freeman had been beneficiaries of their father’s estate.  Only two of them succeeded in their applications against their step-mother’s estate.  One of those two, Cheryl Freeman, had received shares which were sold for $102,000 which after the payment of capital gains tax were worth $66,000 which were rolled into a superannuation fund.  Her only assets at the time of her application were that fund and a motor vehicle worth $6,000.  She was unemployed.  The other successful applicant, Warren Freeman, received shares from his father’s estate which were worth $100,000.  He and his wife had other property worth $175,000 — a property near Miles which was free of incumbrance and had been worked in the past.  He had an artificial leg and at the time of the application he and his wife were receiving a disability support pension.  They also had an adult daughter living with them suffering from an intellectual disability receiving a disability support pension.  It appears that the deceased had been instrumental in keeping contact letters away from Warren’s father.  It became apparent that an inheritance he had received from his grandfather had been taken into account.  Of some relevance, I think, is the fact that her Honour took the view that:

“A wise and just stepmother in the deceased’s position whose assets were contributed to some degree by Mr Freeman (although not the major extent when the division of matrimonial assets prior to Mr Freeman’s death is taken into account) would be expected to consider making some provision for at least the children of Mr Freeman who remained in extremely modest and necessitas circumstances, despite benefiting from their father’s estate”.31

Having found that only two of the applicants in Freeman satisfied the jurisdictional issue, her Honour proceeded with the second stage of the process32  and determined that the quantum allowable for provision should be relative to her findings about the degree to which the deceased’s assets should be treated as having been derived from Mr Freeman.  She ordered a lump sum of $100,000 for each of the successful applicants.

The case was the subject of an appeal.33   The Chief Justice and McPherson JA concurred with the reasons of Keane JA in dismissing the appeal on the basis that the appellants failed to demonstrate a basis on which the decision of Mullins J might be set aside. 

Of significance is the assessment by Keane JA that her Honour was not applying a test of “extreme need” in relation to the jurisdictional issue but that she was making the point that necessitous circumstances would be necessary to give rise to a moral claim on the bounty of the stepmother, who has had no familial relationship at all with the claimant, where the claimant has already received distribution from the estate of his or her natural parent, and where the estate of the stepmother substantially reflects her contribution to the joint wealth of herself and her deceased husband.34   His Honour, Keane JA, said at paragraph 29:

“The more exiguous and distant the familial relationship between the deceased and a claimant, the greater must be the need of the claimant for maintenance and support if it is to give rise to the obligation, postulated of a wise and just stepmother, to make adequate provision for the proper maintenance or support of the claimant.  Similarly, the greater the extent to which a stepparent’s estate reflects her own contributions and efforts, the greater must be the need of the claimant for maintenance and support if a stepmother is to be regarded as subject to a moral claim to make adequate provision for proper maintenance and support.”

In a New South Wales case, McDougall v Rogers,35  the applicant was an adult son of the first marriage of the deceased father.  He was estranged from the deceased following his parents’ divorce and assumed the name of his stepfather.  The Judge found that until October 1987 the applicant and the deceased enjoyed a good relationship but that thereafter there is “only the mere circumstance of paternity”.  The Judge found that the paternal relationship was diminished by the applicant’s renunciation of the relationship including the change of his name.  He had changed his name before reaching 18 years of age.  He also said as a condition for any further contact with his father that the father must exclude from the house the father’s new partner and when the deceased refused to submit to that demand the applicant regarded their relationship as at an end.

The applicant was intellectually immature and found to be mildly retarded.  At [44], his Honour said:

“Although it is regrettable that, with increasing maturity, he made no subsequent effort to repair the relationship, being as close to his mother as he is he would have felt under implicit pressure to continue to shun his father.  In those circumstances, I do not think that, however objectively unreasonable his behaviour towards his father might appear, it was such as to extinguish any moral obligation his father otherwise had to make provision for him, and I would not, on account of the estrangement between him and his father, conclude that the Court was precluded from being satisfied that the provision made for him was inadequate.  Although, as the claimant’s conduct towards the deceased is relevant at the second stage in considering what provision should be made, as well as at the first, and may diminish the extent of the child’s moral claim, [Palmer v Dolman [118]], the fact of the estrangement remains relevant to evaluating whether the circumstances as a whole were such as to impose on the deceased an obligation to make provision for Jamie, and if so, to what if any provision should be ordered, the estrangement is not a decisive factor in this case.”

In the circumstances there was not enough to go round.  Despite the applicant’s marginal financial position and other circumstances in which a legacy by way of advancement would in other circumstances be appropriate, the primacy of the deceased’s obligation to his widow and the insufficiency of the estate adequately discharged that obligation combined with the circumstances that the applicant was able to support himself resulted in the conclusion that a wise and just testator would not have made provision.

In recent times in the course of conducting mediations, I have noticed a trend towards some applicants relying on arguments which, in my view, are analogous with the notion of compensation.  A recent case in Victoria is a good example of this style of argument.  In Re Bull, Deceased,36  an adult male claimant who had suffered sexual abuse at the hands of the deceased as a child brought an application under the relevant Victorian legislation.  Both the applicant and the deceased had had inappropriate sexual relations while the applicant was very much a minor but notwithstanding this the two men remained close friends and when the plaintiff was aged 20 they commenced intermittent consensual sexual relations for another 4 years.  The paedophiliac contact occurred in the late 1960’s and early 1970’s and continued for a period of about 8 years.

It must be remembered that Section 91 of the Administration of Probate Act empowers the Court in circumstances to which it applies to override testamentary freedom where “the deceased offends the moral obligation of a testator, as this is perceived having regard to current community standards”.  The Judge hearing the matter thought the matter  required him to address three questions, namely: (1) Was the plaintiff a person for whom the deceased had a responsibility to make provision in his will?  (2) If yes to (1), did the distribution of the estate of the deceased under the will include adequate provision for the proper maintenance and support of the plaintiff?  (3) If no to (2), what is the proper provision?

While, interestingly enough, no mention was made of Vigolo or Singer, the case proceeded on the basis that “the authorities show that the judgment required for an answer to questions (1) and (2) involves an assessment of what is referred to in this area of law as the testator’s moral obligation or duty.  Byrne J made the observation that the legislation “places the mechanical approach adopted under the repealed legislation of identifying the status by a blood relationship of a particular kind.  The amended provision recognises that, in modern Victorian society, other acceptable relationships which may admit a claim are varied and must be catered for.  If this were not the case, then, in a case where no testamentary provision was made for the claimant, the first and second questions would merge.”

His Honour made reference to the fact (as is usual in these cases) that no evidence came from one party to the relationship, namely, the deceased.  In referring to the unusual circumstances of the relationship he said:

“I underline at this stage that I am here speaking of the role of a Judge in drawing inferences as to the relationships in this area of law from overt conduct including statements.  I am not referring to the accepted community standards mentioned by Ormiston J in the passage from Collicoat v MacMillan which I have set out above.  It was common ground before me the questions as to what is right and proper in that context fall to be determined by reference, not to the laws of a section of this general community, but by reference to the standards of the community as a whole.”

He later said:

“As will appear, I am not, however, satisfied that, from the perspective of the deceased, the relationship is one where he did or ought, in his lifetime, to have assumed a responsibility to provide support for the younger man, having regard to the statutory criteria.  It was not one which could be equated to that of a domestic partner or that of a father to a son, even making allowances for the difference between these relationships and a homosexual relationship.

…

Counsel for the plaintiff accepted that jurisdiction could not be used to grant compensation to a person such as the plaintiff who had been wronged by the deceased.  What was submitted was that a wise and just testator looking back over his lifetime would be mindful of what he had done to the young vulnerable life which had come into his hands long ago and what were the consequences of the abuse he made of it.  Such a testator would or, in accordance with accepted general community standards, should feel a moral obligation to provide the other with a place of refuge where he might find healing or a future life — a life which had been denied him by the misconduct of the testator.”

His Honour then went on to say later:

“It may be that the general community would applaud his decision to make provision in his will for such a person by way of atonement.  But this is not the role of Part 4 of the Administration of Probate Act 1958.  As Callaway JA was at pains to emphasise in Lee v Hearn, ‘the real issues are not morality as such, but personal autonomy and individual freedom’ … ‘the law provides other remedies for this.  This is not to say that these matters will never be relevant:  they may be properly taken into account in connection with or to establish the relationship which might give rise to the responsibility to make provision; it is just that alone, they will not suffice’.”

The conclusion was that it hadn’t been established that the plaintiff was someone the deceased had a responsibility to make provision for in his will.

In December last year, Muir J gave judgement in Serle v Walsh & Ors.37   It was an application by a widower who had been left by his deceased wife an interest in the corporate trustee of a family trust and her interest in the family trust.  In fact, the deceased had transferred her shares in the company to the applicant prior to her death.  The residue was given to the applicant and the deceased’s three adult children in equal shares.  Her assets were comprised of a house in Caloundra worth a little over $500,000 and its contents, with little commercial value, and about $45,000 in the bank.  The respondents were children of the deceased’s first marriage that had ended in about 1971.  There were two sons and a daughter aged between 42 and 47.  When the deceased was divorced, she received monies from a property settlement and some other monies from an inheritance with which she purchased a house in Cairns and purchased a block of flats at Golden Beach at Caloundra.  She then purchased the house which she owned at the date of her death.  The applicant married the deceased in 1978 after living with her for about 5 years during which time the deceased had worked at the Caloundra Hotel.  She then was in receipt of a pension.  At the time of trial the applicant was 62 years of age.  He had been a concreter by trade and ran the business through the family trust.  The income of that trust was said to be between $17,000 and $22,000 over the 5 years ending in 2005.

Separate bank accounts were maintained throughout their married life.  There were issues about whose money was used for daily expenses but there was stress in the marriage which was caused by heavy drinking on the part of the applicant who was frequently inebriated and had three convictions for drink/driving at levels grossly over the statutory limit.  They had very little social life and few interests in common.

It became clear, during the course of cross-examination, the respondents did not like their stepmother.  They never had.  It was suggested by the applicant that the deceased had told him that she was going to transfer the house into his name prior to her death.

Muir J referred to the usual cases such as Singer and Vigolo and analysed their respective arguments relating to the fact that the applicant was an able bodied man capable of supporting and maintaining himself, the nature of the matrimonial relationship detracting from his claim, the contrary relationship between the deceased and her children and, on the other hand, the argument on the part of the applicant that a testator’s duty to a widow was paramount and, if possible, the applicant should be left with a secure home and sufficient income.  Reference was made to White v Barron38  and Luciano v Rosenbloom.39

Muir J referred to two New South Wales decisions – Marshall v Carruthers,40  in which the Court of Appeal doubted that Powell J’s principle in Luciano’s case could have any application to widowers or, for that matter, to widows not in a position of economic disadvantage, and, Bladwell v Davis41  in which Powell J’s reasons in Luciano were again considered.  In Bladwell’s case, there was, again, a watering down of the primacy of the position of a widow (or a widower). 

Muir J relied on the approaches taken in Singer and Vigolo in order to find support from the effects of both Marshall v Carruthers and Bladwell v Davis.  Here of course, the estate was relatively small and there were competing claims by the children of the deceased on her bounty.  He then went back to the observations of Gibbs J (as he then was) in Hughes v National Trustees Executors and Agency Co of Australasia Limited42  wherein it was said:

“It has long been established that in exercising the power given by a section such as Section 91, the Court is not entitled to rewrite the will of a testator in accordance with its own ideas of fairness or justice.  According to the classical statement in Bosch v Perpetual Trustee Co (1938) AC 463, at pp 478-479:

‘… in every case the Court must place itself in the position of the testator and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish husband or father.’.”

His Honour, in applying that test, found that the deceased should have made a separate testamentary gift to the applicant in the sum of $40,000.

In February this year Helman J delivered judgment in Kozak v Matthews & Anor.43   The applicant for provision was the de facto husband of the deceased, Jacqueline Messer.  She died on 20 February 2005.  The applicant was an agricultural labourer who was 51 years old.

Under the deceased’s last will, her two daughters, who were the respondents to the application, were appointed executrixes and trustees.

The deceased was 58 when she died.  She had married Keith Messer, a year after she immigrated to Australia in 1963, who was a farmer at Kawungan.  They had three sons and two daughters born between 1964 and 1972.

By her will, the deceased provided that in the event that she was living as husband and wife as her partner, Peter Kozak (the applicant), he was to be permitted to reside in the property at 16 Windsor Way, Pialba, for 12 months rent free.  He was also to have the use of household property and furniture during that rent free period and the rates and insurances on the property was to be paid from the estate funds.  After expiry of the tenancy, the deceased made provision that the residue of the estate was to be divided amongst her children.

In March 2002, the deceased and the applicant had executed a deed in a solicitor’s office.  The effect of the deed was that it was intended to be binding on them even if they became married.  All property owned by each of the parties was to remain the sole property of that party who paid for it or received it as a gift.  Peter acknowledged that he had made no financial contribution to Jacqueline’s assets and agreed that in the event that they ceased to cohabit, or in the event of Jacqueline’s death, he would make no claim upon her or upon her estate, as the case may be, in respect of her assets.

If the parties were to acquire property in respect of which each had made a contribution to the cost of acquisition then each party would be entitled to that property as tenants in common in the shares proportionate to their contributions.  During cohabitation each party would contribute equally to day to day living expenses including routine maintenance of the dwelling in which they resided from time to time provided that Peter would not be obliged to contribute to rates, insurance, capital alterations or improvements or substantial maintenance but if he did contribute to the cost of those things, such contribution would not entitle him to any share or interest in the residence.  The fact of this deed became a serious issue in the case as a factor to be taken into account in barring the applicant to an order for provision.  The applicant swore that he had not received independent legal advice before executing that deed (despite the fact that it had said so in the deed itself) and that no-one at the office of the respondents’ solicitors advised him to do so.

On the evidence, it was clear that the couple had enjoyed a loving and mutually caring relationship until the deceased’s death.  The applicant did a lot for her, undertaking household chores such as mowing and gardening and cleaning and even washing and hanging out the clothes.  He also did other chores such as painting and repairing window frames.  The applicant also acted as a full-time carer for the deceased with regard to assisting her with meals, dressing, showering and going to the lavatory and taking medicines during a period from when she was diagnosed with a terminal illness until her death.  That period commenced not long after the couple commenced cohabitation.  The cohabitation resulted from the fact that the applicant had been employed by the deceased and her husband on their farm but had an affair with the deceased who resulted in a parting of the ways between the deceased and her husband.  Following those events, it seems that the 5 years or so of de facto wedded bliss was more a difficult time for each of the applicant and the deceased.

In March 2002, the deceased and her former husband had agreed on a property settlement resulting in the deceased receiving approximately $1.25 million.  It was following that that the applicant executed the deed of agreement referred to.

It may suffice to say that the applicant had little if not nothing.  The deceased paid out his motor vehicle loan in the sum of $7,600.  She had also given him $5,000 in February 2005, a matter of 2 weeks before her death.

Two days after the deceased’s death, the applicant went to see a solicitor regarding her will.  Just less than 9 months later, he filed his application.

Much was made on behalf the applicant that the deceased’s former husband and father of the respondents was very wealthy and that the respondents would be likely to inherit shares in his estate on his death. His Honour was not persuaded of that on the basis of certainty.  What if he was to remarry?  What if his circumstances changes such that his assets declined in value?

Each of the respondents had dependent children and none were found to be in more than modest circumstances.

In determining that the applicant had not established that adequate provision had not been made for him, His Honour highlighted the following:

• The brevity of the relationship
• The absence of issue from it
• His age and good health
• The absence of any promise of bounty by the deceased emphasized by stated intentions of the deceased that were unconditionally accepted by the applicant (until immediately after her death)
• The provision she did make for him in the will
• The claims of her children

Of course, the Court cannot give effect to an attempt to contract out of making an application, in this case, in the deed executed nearly three years before the death of the deceased.44   His Honour found (at [27]) that the evidence of the execution of the deed by the deceased and the applicant was relevant to the understanding of the terms on which they cohabited after it was executed. This is not dissimilar to what was the case in Singer in which the widow had applied for provision and an anti-nuptial agreement was held to be admissible for the limited purpose of showing that the parties thought its terms fair at the time it was signed.

Conclusion

It is difficult in a paper such as this to inspire participants by examples of dramatic changes to the law when there has been so little to comment on.  To quote from Judge Wilson’s writings45, changes in legislation in other states which have the effect of including as possible claimants all persons, who, regardless of blood ties, could be categorised as having been “dependents” of the will maker are likely to introduce new issues into the debate46.  His Honour’s reference to the cynical view, that the family has been replaced under the legislation by a unit based around persons who have at any time shared a wheelie bin, is perhaps a little extreme.  It seems unlikely that our legislation will be expanded to that extent but it has certainly been expanded.  Work slowly progresses however on a national scheme.  When that arrives some of the issues highlighted here may have to be revisited.

Douglas Murphy SC

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Endnotes

1. For the purposes of Part IV, Succession Act
2. As defined by the Acts Interpretation Act, Section 32DA.
3. Judgment was handed down since this paper was written. The applicant failed. See Barker v Linklater [2007] QSC 125
4. (1994) 181 CLR 201.
5. (1994) 181 CLR 201-209.
6. in Hughes v. National Trustees (1979) 143 CLR 134 and Goodman v. Windeyer (1980) 144 CLR 490 at 504-505.
7. IBID.
8. IBID.
9. See Permanent Trustee Co Limited v. Fraser (1995) 36 NSW LR 24.
10. See Coates v. National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494.
11. Coates’ case:  Dunn v. Dunn (1957) 99 CLR 325 @ 331;  Goodman v. Windeyer (1980) 144 CLR 490; Bondelmonty v. Blackensee (1989) WAR 305, 307.
12. (2005) 221 CLR 191.
13. (1999) 23 VR 803.
14. at 816-7.
15. as described in re Allen and other later cases.
16. (2000) 2 NZLR 479.
17. (1997) 2 VR 359.
18. In Blair v Blair (2002) VSC 95 per Harper J.
19. (2002) VSC 202.
20. Re Mackinnon (2002) Tas SC 3.
21. Vigolo v Bostin (2001) WASC 335.
22. (2001) QCA 465.
23. District Court, Queensland.
24. (2005) 221 CLR 191.
25. At para 21.
26. At para 121.
27. (2006) QSC 024.
28. (2005) ASK 200.
29. In re Lockwood (1960) Taps SR 46; re Track son (deceased) (1967) Dry 124; re Callaghan (deceased) (1984) 3 All ER 790; re Leach (deceased) (1986) Ch 226; Grazing v Grazing, unreported, Sup Court NSW, EQ 2678 of 1985, 20.2.87; re Flop (deceased) (1987) 8 NEWLY 679; McKenzie v Top (2004) VAC 90; Jones & Amor v Day (2004) VAC 290; Keats v Marks (2005) VAC 172.
30. At paragraph 48.
31. Paragraph 58.
32. Singer’s case.
33. Freeman v Jaques (2005) QCA 423.
34. See paragraph 28.
35. (2006) NSWSC 484.
36. (2006) VSC 113.
37. (2006) QSC 377.
38. (1980) 144 CLR 431.
39. (1985) 2 NSWLR 65.
40. (2002) NSWCA 47.
41. (2004) NSWCA 170.
42. (1979) 143 CLR 134 at 146.
43. (2007) QSC, BS8920 of 2005.
44. Lieberman v Morris (1944) 69 CLR 69
45. Estate Litigation: Moral Issues in Family Provision: Alan Wilson S.C, DCJ, QLS Conf’ce 5.10. 2002
46. The debate about needs versus moral issues.