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Can an unrelated member of the household make a family provision claim against a person’s estate?

The recent Victorian case of Re Meuleman; Quminakelo v Amidzic [2020] VSC 376 considered what it means to be a member of the household in a contested will case.

The deceased died in 2017, leaving a Will dated 13 March 2008, and left no provision for the claimant. The value of the estate was just over $900,000.

The plaintiff made a claim for further provision pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (Act). The plaintiff claimed that as a member of the deceased’s household she was an eligible person and that the deceased had an obligation to make further provision for her out of the estate.

The plaintiff relied on the definition of ‘eligible person’ in section 90(k) of the Act. The executor sought to dismiss the claim on the basis that it had no real prospect of success.

Background

The plaintiff first met the deceased in early 2007. At that time the deceased was an 83-year-old widow with no close family who she lived alone in her home. The plaintiff was a 42 years old, single mother living in rented accommodation close by to the deceased. A friendship developed between the plaintiff and the deceased. The plaintiff daily visited the deceased at her home, cooked, shopped and did personal things for the deceased. By October 2008, the plaintiff stayed at the deceased’s home with her son four or five nights a week. The deceased assisted the plaintiff by paying 50% of her rent and contributed to personal expenses such as payment of utilities, clothes and other necessities. The deceased also paid for some of the plaintiff’s son’s school fees and sports expenses.

The plaintiff claimed that they both had become and remained dependent on each other for care and comfort. The plaintiff also claimed that the deceased had made a number of promises to her that the deceased would leave the estate to her.

In June 2013 the deceased was admitted into residential care after being diagnosed with dementia and deemed incapable of living in her own home. The plaintiff visited the deceased daily and brought her food and gifts. On 22 July 2013, the Victorian Civil and Administrative Tribunal appointed the plaintiff administrator of the deceased’s financial affairs.

The executor argued that the plaintiff was not an eligible person within the definition of a member of the household in the Act. The executor referred to the New South Wales equivalent of category and submitted that being a member of a household with another person requires a degree of ‘continuity and permanency of mutual living arrangements.’ The executor relied particularly on the fact that the deceased was living in a nursing home for the last four years by the time of her death and therefore the plaintiff was not a member of the household at the date of death.

The plaintiff argued that it is possible to have one household across two properties and the relationship of members of the household continued between her and the deceased despite their separation.

Was the Plaintiff a Member of the Household?
The Court considered whether the plaintiff was eligible as a member of the household. Member of the household is not defined in the Act. The Court looked to New South Wales as a guide. The Court found that membership of a household requires cohabitation. Regular vising and staying overnight is insufficient. The cohabitation must have sufficient duration, as well as sufficient quality of relationship, to satisfy continuity and permanency.

The Court further said that there are some key features of a relationship that transform people residing together into a ‘household’ for family provision purposes which include:

  • bond and unity; a concern with and interest in the lives of each other;
  • a degree of continuity and permanency of mutual living arrangements;
  • intimate connection with another member of the household;
  • willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;
  • mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other; and
  • a bond between them that must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant.The Court was satisfied that the plaintiff and the deceased were members of the same household within the meaning and definition in section 91 of the Act for the period from October 2008 until 2 June 2013. Once the deceased was admitted to care, the Court had to consider whether their membership of a household had ceased. The Court considered circumstances where domestic partners separate by one of the partners being admitted to residential aged care and that this involuntary separation does not end a domestic relationship. The Court did not dismiss the case on the basis that an involuntary physical separation of a deceased and a plaintiff for health reasons terminates a ‘household’ notwithstanding continuing care, contact and involvement in each other lives.

Dependency

To be successful, the plaintiff had to satisfy the Court that she was wholly or partly dependent on the deceased for her property maintenance and support.

In Victoria, the Act is silent on the time of the dependency and it has been determined this dependency need not be as at the date of the deceased’s death. However, the Court indicated that dependency on a deceased at the time of death is relevant to the amount of any provision that may be ordered.

The Court agreed with the conclusion in Veniou v Equity Trustees Limited [2018] VSC 832, namely that the phrase dependent on the deceased for the eligible person’s ‘proper maintenance and support’ used in the Act requires actual receipt of financial or material aid. The Court further said that dependency cannot be exclusively emotional support or the provision of caring attention unless, possibly, the claimant is a young child or otherwise unable to care for themselves, due to a disability.

The Court found that the promises by the deceased to the plaintiff as to future provisions were incapable of being actual financial or material aid. The plaintiff was required to show dependency on the deceased, not a promise. The Court further stated that the maximum provision that can be ordered for the plaintiff is set by the degree of dependency, not the extent of the moral duty.

The Plaintiff argued that as she was the deceased’s administrator and therefore, she was legally restrained by her duties to the deceased from providing herself with financial benefit from the deceased’s assets.

The Court was not satisfied that the plaintiff was in receipt of financial or material assistance from the deceased at the time of the deceased’s death and therefore she was not dependent on the deceased to any degree. The fact that the plaintiff was the deceased’s administrator did not change the conclusion.

The case was dismissed on the grounds that the plaintiff was not dependent on the deceased and nor was there any likelihood at that time the women would be members of the same household in the future.