In the matter of the will of Michael Lewkowicz; and in the matter of the Family Provision Act 1969 [2001] ACTSC 54 (30 May 2001)

Last Updated: 4 May 2002

In the matter of the will of Michael Lewkowicz

And in the matter of the Family Provision Act 1969

[2001] ACTSC 54 (30 May 2001)

CATCHWORDS

TESTATORS FAMILY MAINTENANCE - Family Provision Act 1969 - adult sons and daughter - deceased left modest estate divided between one son and daughter - whether inadequate provision for daughter and other sons - there was not.

Family Provision Act 1969, s 7, s 8

Domestic Relationships Act 1994

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

In re Sinnott, deceased (1948) VLR 279

The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961-62) 107 CLR 9

No SC of 1020 of 1999

Judge: Miles CJ

Supreme Court of the ACT

Date: 30 May 2001

IN THE SUPREME COURT OF THE )

) No SC 1020 of 1999

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF THE WILL OF MICHAEL LEWKOWICZ

And

IN THE MATTER OF THE FAMILY PROVISION ACT 1969

BETWEEN: ZOFIA KOORNEEF

RICHARD LEWKOWICZ

ZENON LEWKOWICZ

MICHAEL LEWKOWICZ

STEVEN LEWKOWICZ

Plaintiffs

AND: JOHN LEWKOWICZ, Executor

named in the Will of MICHAEL

LEWKOWICZ

Defendant

ORDER

Judge: Miles CJ

Date: 30 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The application be refused.

1. This case is as entitled above. However it is not primarily a case about the will of the late Michael Lewkowicz (the deceased). It is about whether adequate provision for the proper maintenance, education and advancement in life of the plaintiffs or any of them is not available under the will of the deceased, and, if not, whether the Court ought make an order for provision out of the estate in favour of any such plaintiff.

2. The deceased died on 23 August 1998 aged 83 years. His will was executed on 31 July 1998. He appointed his son John executor and left the money in his bank account to John and his house at Ainslie and the residue of his estate to his only daughter Zofia and to John as tenants in common. The money in the bank account was $27,311.92. The value of the house at Ainslie was $160,000.00 and that of the residue $5,000.00.

3. The plaintiffs are Zofia and five of the sons. Two other sons, the eldest, Eugene, and the youngest, Peter, do not join in the application. The deceased's former wife, Rita, who remarried does not join in the application.

Background

4. The general background and the facts which are not disputed or which may be stated without reference to the evidence are as follows. They reflect the social history of Canberra following World War II.

5. The testator, born in Poland on 15 July 1915, was a soldier in the Polish army. He became a prisoner of war. Rita was held in a concentration camp. They met and married in 1947 whilst still in the camps in Germany. Two children were born in Germany and died, each after a matter of months. Eugene was born on 18 April 1946 and Steven, one of the plaintiffs, on 24 April 1949, both in Germany. Rita was pregnant with Zofia when the family migrated to Australia.

6. The family stayed in migrant labour camps in Cowra and Wagga for about two years. Zofia was born on 8 September 1950. They came to Canberra and lived in a government house at Westlake, now Yarralumla, in 1951. The deceased took work in a local concreting business and remained working there for wages for nearly 30 years until his retirement in 1980 at the age of 65. He received retirement pay and superannuation, but the details are unknown. During their time at Westlake, about seven years, the couple had four more sons, Michael born 29 February 1952, Richard born 18 August 1953, John born 13 October 1954, and Zenon born 2 December 1957. The deceased became violent towards his wife and eventually she was admitted to hospital following one such assault. The deceased served a three months prison sentence as a result. The children, or some of them, were sent to live with foster parents from time to time during the years at Westlake. After the separation Rita, who was pregnant with Peter, moved to a government house at O'Connor with all the children but Eugene and Steven. The deceased went to live in a government house at 9 Lalor Street, Ainslie with Eugene and Steven.

7. About six years after the move to Ainslie, the deceased purchased the house and lived there until his death.

8. After the separation the children moved fairly freely between the homes of each parent until they made homes for themselves. They all commenced work as soon as they were old enough to do so and made contributions to whatever house they were living in. The deceased was ordered to pay Rita for the maintenance of the children with her. He paid the maintenance in accordance with the order, usually sending cash with one of the sons to pay to Rita's solicitor, Mr David Crossin.

9. As the children married and had families of their own they grew apart from the deceased. Steven, Zofia and Richard went to live in Queensland. Michael, John and Zenon remained in Canberra, but John kept in contact with the deceased more regularly than any of the plaintiffs.

10. In 1983 the deceased made a will in which he left all of his estate to Zofia. That will was of course revoked by the will of 31 July 1998.

Jurisdiction and Discretion

11. It is not disputed that each of the plaintiffs is a person entitled under s 7 of the Family Provision Act 1969 (the Act). Section 8 provides as follows:

"8.(1) On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Court may order that such provision as the Court thinks fit be made for the applicant out of the estate.

(2) The Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available -

(a) under the will of the deceased;

(b) if the deceased died intestate - under the law applicable to that intestacy; or

(c) under that will and that law combined.

(3) The criteria for the Court's decision under subsection (2) in relation to the deceased and the applicant are as follows:

(a) the character and conduct of the applicant;

(b) the nature and duration of the relationship between the applicant and the deceased;

(c) any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

(d) any contributions (including any in the capacity of home-maker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

(e) the income, property and financial resources of the applicant and the deceased;

(f) the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

(g) the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

(h) the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

(i) the terms of any order made under section 15 of the Domestic Relationships Act 1994 with respect to the property of the applicant or the deceased;

(j) any payments made to either the applicant or the deceased by the other, pursuant to an order of the Court or otherwise, in respect of the maintenance of the other person or any child of the other person;

(4) The Court may regard an application for provision out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person."

12. The restriction imposed by s 8(2) on the power to make an order under s 8(1) is sometimes treated as if it is a matter that goes to jurisdiction, at least in comparable legislation in other parts of Australia: eg Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208-211. It was submitted in the present case on behalf of the plaintiffs that the "complexity and hair splitting" of legislation elsewhere has been avoided by the simple and direct provisions of the Act in this Territory.

13. It has been acknowledged that, as a matter of strict juristic analysis, the term "jurisdiction" may be inaccurate. It may also be, as was submitted, that by the legislative device of conferring power to make an order in the first subsection but confining the power to the conditions in the second subsection, Territory legislation has avoided the question of "jurisdiction" altogether. However the same device was adopted by the New South Wales legislation under consideration in Singer v Berghouse. Be that as it may, it is clear that in practical terms an order under s 8(1) may not be made until the Court is satisfied under s 8(2) that the applicant has not available to him or her under the terms of the will adequate provision for his/her proper maintenance, education and advancement in life. The criteria for the Court's decision under s 8(2) are set out in s 8(3). The precise criteria of paragraphs (a) to (j) are supplemented by the general nature of paragraph (k), namely any other matter that the Court considers relevant. Not all of the criteria apply to the present plaintiffs and the significance of any one or more of the criteria of any individual plaintiff needs to be examined.

14. Section 8(2) does not prohibit the exercise of jurisdiction on the part of the Court by entertaining the application and proceeding to consider the issues raised.

Were any of the plaintiffs left without adequate provision?

15. I will adopt the course of addressing each of the statutory criteria in turn and how it relates to the respective plaintiffs. First, however, I express the view that, contrary to what seemed to be submitted on behalf of the plaintiffs, the fact that a person entitled under s 7 has been left without any provision in the will at all is not prima facie evidence that the person has been left without adequate provision. I take the submission to mean that as a matter of logic there can be no adequate provision where there is no provision at all. If that were so then s 8(4) would oblige the Court to make enquires about all persons entitled to apply, in this case the eldest son Eugene and the youngest son Peter. There is no judicial authority to support the proposition. On the contrary, all the authority to the effect that the "jurisdictional" question involves making a value judgment (but not exercising a discretion) tends to deny it.

(a)(b) Character and conduct of plaintiffs and relationship with deceased

16. None of the plaintiffs had a significantly close relationship with the deceased at the time of his death. Apart from John they made contact with him infrequently or irregularly or both, and he very rarely made any attempt to contact any of them, if at all.

17. Two of the sons, Steven and Richard, had gone to Queensland many years before the deceased's death and raised families there. They grew further and further apart from the deceased.

18. Richard's business had flourished and declined from time to time, a not unusual occurrence in the building industry. At the date of his father's death he or his company owed some $36,000 to the Deputy Commissioner of Taxation. He blamed his predicament on the failure of his major customer, who stills owes him or his company $40,000.00. He was in only occasional contact with his father by a phone call every month or two and infrequent visits when he happened to be in Canberra. He never explained his financial situation to his father. It was not suggested on his behalf that, had he asked his father to assist him financially, such assistance would have been forthcoming to the extent that it would have made some substantial difference to his ability to meet his financial commitments.

19. Steven was able to make more frequent visits to his father, not least because he came to Canberra more frequently in his occupation of coach driver. In the early years he would telephone his father from Queensland about once a month. In later years he would enquire about his father when he spoke to John.

20. Zenon and Michael continued to live in Canberra in suburbs some ten minutes drive from the deceased's home. They also remained in only sporadic contact with their father. If he asked them to do anything in particular within their capacity around the house, they would respond. He paid them on most if not all of those occasions. On the whole they were content to leave John with the task of attending regularly to their father's welfare. In my view, they tended to exaggerate the extent to which they were close to their father. Where their evidence conflicts with that of John, I prefer the latter. I note that it was supported by the evidence of the deceased's next-door neighbour, Ms Marcia Murphy, which was entirely convincing.

21. Zofia had a somewhat closer relationship with her father than did most of the other brothers. She moved from her mother's house to the deceased's house after she began work in her teen years. About six years later, in 1970, she married and moved out of the deceased's house briefly. She and her husband moved back to the deceased's house after about a year and remained there for some two years. They paid rent to the deceased. Zofia did the housework. She received no payment from the deceased for that. She and her husband then moved to his mother's house where they remained until moving to the Gold Coast in 1981.

22. Whilst working at Woolworths Zofia suffered a breakdown and did not go out to work for several years. In 1983 the deceased made a will in which he left everything to Zofia. He also bought a car from Steven and gave it to Zofia. It is clear that he was concerned for her welfare and the welfare of her children. She came to her father's house with the children about two or three times a year until 1989. In 1989 Zofia's husband left her and has failed to maintain their children. Her father suggested she return to Canberra to live with him. She declined to do so. After that she and her father drifted apart. She could recall telephoning him once only in recent years. Like her brothers in Queensland she was content to maintain contact with him mainly through John and like all her brothers to leave John to attend regularly to their father's welfare. She learned of her father's final illness from her mother.

(c)(d) Contributions by deceased and by plaintiffs to their own resources or the resources of the other or any child of the other.

23. Apart from assisting Zofia, the deceased made no contribution to the property or financial resources of any of the plaintiffs in any material sense since they became self-supporting. Of course in raising some of the children substantially by himself and in contributing to the raising and maintenance of the others, the deceased contributed to their own capacity to maintain themselves and to become self-sufficient.

24. Conversely the plaintiffs made little contribution of note to the property or financial resources of the deceased, except to the extent that they went out to work when young and during such time as they remained living with the deceased they made contributions to the household. On the evidence, it cannot be concluded that their contributions exceeded the cost of their being part of the household. Richard, however, did concreting work around the house, with his father paying for the materials.

25. Zofia claimed that an amount of furniture and similar items in the house at the deceased's death had been given by her (and by her and her husband jointly in some instances) to the deceased. However, even on her own account she took possession of these and removed them from the house after her father's death. She still retains them. There was no evidence of their value and I am not able to conclude that it was substantial. The result is that these items are of minimal significance on the question whether proper provision was made for her by the will.

26. The attitude of the deceased towards Zofia was always protective. That it was so may have been due to his Polish background (as was submitted) but it is consistent with attitudes of other persons of his generation, and, possibly his religion. Perhaps it was essentially a personal matter between him and his daughter. The source or reason is less important than the fact. Zofia contributed to the deceased's household through her housework in the early years as she was expected to, but the evidence does not support a conclusion that she was exploited or otherwise treated as a drudge. After she left to go to the Gold Coast her capacity for performing such tasks or otherwise contributing to the deceased's welfare was minimal.

(e) Income, property and financial resources of plaintiffs and deceased.

27. The financial position of each of the plaintiffs may be summarised as follows.

28. Steven, now aged 52 has been a bus driver for the past 11 years. He has lived in Queensland since 1980. He is married with three self-supporting children and four grandchildren. The family live in their own home which is worth about $165,000.00 and is subject to a mortgage of $142,000.00. His only income is from his wages as a bus driver, which are modest, about $500.00 per week, barely sufficient to meet household needs.

29. Zofia is now aged 50. She has lived in Queensland for most of the time since 1982. She returned to Canberra briefly when her husband left her. At present she is looking after her mother, Rita, who is ill. She receives social security. She has two dependent children aged 12 and 17. The son appears to come and go. He is probably partially dependent. She has no assets of substance. She has debts of $10,000.00, the nature of which she has not disclosed.

30. Michael is now aged 49. He is a self-employed carpenter. Last year he earned about $68,000.00. There is no evidence that he lives other than modestly. His wife has a full-time job away from the house. They live at Kaleen.

31. Richard is aged 47. He is a concreter operating through a company. He has lived with his family in Queensland since 1992. The business has fallen on hard times. The family home was sold recently for $165,000.00, leaving, I gather, about $20,000.00 owing to business creditors. Looming overall however is a debt of some $43,000.00 owing to the Deputy Commissioner of Taxation. The debt is being paid off at $500.00 per month which is less than the accruing interest. The Deputy Commissioner is threatening bankruptcy proceedings. There are three dependent children and another child living with his former wife.

32. John, the defendant executor, is a plumber. He served an apprenticeship. He has been on the maintenance staff of Parliament House for many years. He is married with three self-supporting children and two grandchildren. His wife works part-time. They own their house at Kambah which is insured for $229,000.00, and is subject to a mortgage of about $40,000.00. He earns about $50,000.00 per year. He and his family live in more comfortable circumstances than the plaintiffs, but it could not be said that their needs are more than modest.

33. Zenon is a part-time ACTION bus driver, working 31 hours a week. He has two adult sons and a daughter who is still at school. He and his wife own their house which is valued at about $180,000.00 and subject to a mortgage of about $47,000.00. He and his wife have had to draw on the mortgage in recent times because of a shortage of work.

(g)(h) Financial needs and obligations of deceased and of plaintiffs, including responsibility of supporting others.

34. The financial needs of the deceased were to support himself in a modest, if not frugal, way which he in fact did, so that at the time of his death he had savings of $27,311.92 in his bank account. He was not responsible for the support of anyone else.

35. The financial needs and obligations vary among the plaintiffs. Apart from Richard and Zofia, none of them is in any particular financial need having regard to their lifestyle, income and assets.

36. Richard, however, is in dire financial need and on the edge of bankruptcy. On the face of it, it might be that a just and wise testator might not overlook his plight and ensure that provision was made to relieve him from it. But on consideration, the testator would recognise that any provision of that nature would have to be very substantial to put Richard back on his feet financially. The testator might also recognise that the creditor who is placing the most pressure upon Richard is the Deputy Commissioner of Taxation and the testator might not see the justice in other members of the family being required, in effect, to pay Richard's tax bills as well as their own. Again the testator might approach the question of provision for Richard by reflecting that as a businessman he has elected to run the risks of the building trade in bad times as well as the chance of making a tidy living in good times, as has Michael.

37. Zofia discloses financial needs that are lacking among her brothers. Her former husband left her and failed to supply financial support for her or the children. She did not return to the work force until 1994 and even so she earns only $154.00 for a 12 hour week in addition to social security payments.

(i)(j) Orders under Domestic Relationships Act 1994 and payments of maintenance pursuant to Court orders.

38. As already indicated, the deceased used to make maintenance payments pursuant to Court orders to his wife or ex wife when the children were young but that was so long ago as to be of minimal relevance. The Domestic Relationships Act 1994 does not apply.

(k) Any other relevant matters.

39. The financial contribution of John and his relationship with the deceased are such that he is in a quite different position from all the plaintiffs and from the other children who have not made application.

Conclusions

40. In my view, none of the plaintiffs has shown that, as at the date of the order if one were made, adequate provision is not available under the will for the proper maintenance, education or advancement of him or her. In the case of all the male plaintiffs, each is a mature adult, married with a family, well established in life and moderately comfortable from a material point of view. In In re Sinnott, deceased (1948) VLR 279, in what Dixon CJ was to describe as "perhaps the soundest and most illuminating of all the discussions of the statutory provisions" (The Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961-62) 107 CLR 9 at 19), Fullagar J remarked at 280 (in terms which are modified only to meet the demands of modern notions of gender awareness).

"No special principle is to be applied in the case of an adult [child]. But the approach of the Court must be different. In the case of ... an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult [child] is, I think, prima facie able to `maintain and support' himself [or herself] and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act."

41. To some extent the plaintiffs must owe their modest success and comfort to their upbringing to which the deceased contributed substantially both financially within his means and otherwise as a parent. There is no evidence that the unhappy differences between the deceased and his former wife resulted in emotional difficulties in the children. The children were brought up in frugal circumstances but that was due essentially to the extent to which the modest income of the deceased had to make do with supporting two households and a separated family of two parents and eight children with some 15 years between the oldest and the youngest.

42. Other parents may have expected some measure of material support from their children in later years. The deceased did not seek that support nor did he offer it to the sons once the sons were self-supporting soon after leaving school. The sons themselves never sought such support and never offered it. They assumed that some measure of assistance would be available if they really needed it but they never saw the need as so great that it justified an approach to their father.

43. Although the relationship between the deceased and the sons (other than John) appeared to be lacking in overt signs of affection, it was one of mutual respect. The relationship between the deceased and John was closer. The other sons must have been aware of that relationship becoming closer and firmer over the years, and, on the evidence, they were content that it remained so in the later years. The deceased clearly intended that the relationship between himself and his children be reflected in the provisions of the will, that is to say, John and Zofia were to be provided for, the others not. The attitude of the deceased has not been shown to be misguided, based on some misapprehension of what he owed the sons or what they owed him, financially or otherwise, or affected by some feeling of ill will.

44. The deceased was clearly thinking rationally and appropriately at the time he made the will, as the evidence of Mr David Crossin and of Ms Murphy attests. The deceased took the view when he made the will that the provisions of his previous will, leaving everything to Zofia, were no longer appropriate, and that the estate should be split between Zofia and John with John taking the slightly larger share. It is likely that the deceased had a fair idea of how much money was in his bank account. It is not clear whether he had accurate knowledge of the worth of the house and its contents, but that does not seem to me to be of any importance.

45. If I have understood correctly, it was submitted by Mr Johnstone on behalf of the plaintiffs, that the fact that the five plaintiffs had agreed amongst themselves as to the appropriate distribution of the estate amongst themselves and John, was itself evidence that they had been left without adequate provision. That may be so. A concession by one plaintiff that another plaintiff is entitled to an order may be an admission against the interests of the former and in favour of the latter. But its evidentiary value is another matter. The agreed proposed distribution of the estate may be the result of negotiation among the plaintiffs. It is difficult indeed to see that it is not so, at least in part. In relation to this aspect, it should not be ignored that there are at least two other persons entitled to apply who are not parties to the proposed arrangement. It would be unwise to speculate as to their reasons and motives for not joining in the application but it is a fact.

46. I do not see how the plaintiffs justify or arrive at the uneven distribution amongst the sons which they propose. In particular I do not understand why the proposal is so heavily weighted in favour of Richard (14.5%) and against John (7%). It is surprising that the plaintiffs are not prepared to acknowledge the closer relationship between the deceased and John than between the deceased and themselves or to acknowledge the active contribution by John to the welfare of their father during his last years.

47. Assuming that Zofia were to receive one half of the estate but that the remaining plaintiffs and John were to share the other half equally (which is to favour the others, hypothetically, against John) they would end up with something like $17,000.00 each. That is more than a nominal or token sum, but it would do very little to maintain or educate any of them or to promote their advancement in life. It may be that, in general, cases of small estates and adult children already well-established are unlikely to attract the operation of family provision legislation, as the remarks of Fullagar J quoted above, seem to imply. There is no need to lay down a general principle. It is certainly so in this case as far as the male plaintiffs are concerned.

48. As for Zofia, the deceased did not fail to make provision for her. The question raised is whether a capital sum of no more than $96,000.00 is adequate for her proper maintenance, education and advancement in life.

49. I repeat that the deceased made the will in apparent awareness that it would reduce the entitlement of Zofia as provided for under the former will and that it would do so in corresponding favour of John. The decision was not irrational or motivated by ill will towards Zofia or by reference to some fanciful assessment of John's goodwill and attention.

50. There was some reference in the submissions to the deceased's Polish background. It was suggested that it somehow lead to his being overly proud and patriarchal. I do not see how his Polish background assists in resolving any of the issues in the case. All we know of relevance is that the deceased belonged to the Polish Club in Canberra, that he had expected at one stage, wrongly as he came to realise, that the Polish Club would organise and pay for his funeral, that he sometimes cooked Polish food for the children (as well as the conventional Australian roast lamb dinner) and that he was proud of the Polish medals that rewarded his war service. There is nothing in any of that that bears upon the provisions of the will or the maintenance of his children.

51. It was suggested on behalf of the plaintiffs that it was this Polish background that led to a protective attitude on the part of the deceased as far as Zofia was concerned. In my view, it possibly had something to do with his first will, which left everything to her, but again it is idle to speculate on an issue which is of marginal importance.

52. Undoubtedly of all the children Zofia had the strongest claim on the deceased with respect to needs. However, again I do not think that it is demonstrated that the will did not make adequate provision for her in the light of the deceased's wish that John should share in the estate. Even now she claims only 50%. In the hypothetical event of the Court making an order in her favour to that extent, the practical effect would be little different for the purposes of provision for her maintenance, education, and advancement in life.

53. Although I accept that the term "advancement in life" is not restricted to persons of tender years, the age and general circumstances of Zofia are not to be overlooked. Similarly, I would approach the matter of her education. There is no evidence that she intends or needs to undergo education.

54. It is also of significance, I think, that in the circumstances of the family life of the deceased there was very little in the nature of a fond relationship between grandfather and grandchildren, with the possible exception of John's children. That is not to say that the deceased (or anyone else) was cold-hearted or mean but simply to recognise that different people lead different lives as they are entitled to do. The wishes of this deceased ought to be respected. I refuse the application.

55. I will hear the parties on costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 30 May 2001

Counsel for the plaintiffs: Mr T M Johnstone

Solicitor for the plaintiffs: Tetlow Jansen & Doyle

Counsel for the defendant: Mr C Erskine

Solicitor for the defendant: Barker Gosling

Dates of hearing: 20 and 21 March 2001

Date of judgment: 30 May 2001