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Appeals under Part IV of the Administration and Probate Act

Feature Articles

Cite as: (2004) 78(3) LIJ, p. 48

A recent Court of Appeal decision will make it difficult to successfully appeal a decision under Part IV of the Administration and Probate Act.

By Kathryn Rees, Carol McOmish and Julie Grainger

On 15 May 2003, the Court of Appeal delivered a judgment in Madden v Singvongsa.[1] This was the first time that Part IV of the Administration and Probate Act 1958 (the Act) had been considered by the Court of Appeal since the Wills Act 1997 amended it. The appeal was against the exercise of discretion in relation to the amount awarded to the plaintiff out of his wife’s estate under Part IV of the Act. The Court’s inquiry into the appropriate amount to award a plaintiff in Part IV claims (traditionally called the “second stage” or “quantum stage” of the inquiry) involves an exercise of discretion, as was stated in Grey v Harrison.[2]

In Madden v Singvongsa, the Court of Appeal confirmed that the amendments to the Part IV regime effected by the Wills Act 1997 have not altered the approach of the Court at the quantum stage of the inquiry. Accordingly, any appeal against the amount awarded under Part IV is an appeal from a discretionary judgment and the manner of determining such an appeal is governed by well-established principles.

It is not enough that the judges constituting the appeal court consider that, had they been in the position of the primary judge, they would have taken a different course.[3] Rather, there is a strong presumption in favour of the correctness of the decision appealed from. As such, that decision should be affirmed unless the Court of Appeal is satisfied that a vitiating error has occurred in the exercise of the discretion by the primary judge.[4]

What constitutes a vitiating error is well-established:

“If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so”.[5]

Further, failing to give weight or sufficient weight to relevant considerations can constitute a vitiating error. As Kitto J said:

“The nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[6]

It is in this context that an appeal from the judgment of Byrne J[7] was brought.

Facts in this matter

The respondent Viroun Singvongsa and his wife Phetsourine Visisombat, the testatrix, were second cousins and had known one another since they were children in Laos. Ms Visisombat moved to Geneva with her family when she was a teenager but returned to Laos in the late 1960s and became involved in a romantic relationship with Mr Singvongsa for several years. Following the end of their relationship, Ms Visisombat returned to Geneva, where she married and had a son, and Mr Singvongsa moved to France, where he studied, before emigrating to Australia with his first wife and children in 1988. Ms Visisombat later divorced her husband and subsequently had a daughter with her new partner.

In 1996, Mr Singvongsa separated from his wife and resumed his friendship with Ms Visisombat. In July 1996, Ms Visisombat emigrated to Australia with her daughter and commenced living with Mr Singvongsa. They married in August 1996.

While Mr Singvongsa gave evidence that he genuinely loved Ms Visisombat, evidence was given by Ms Visisombat’s son that she had only married Mr Singvongsa to stay in Australia and that the marriage did not go well. Mr Singvongsa and Ms Visisombat separated on a number of occasions during the course of their marriage and finally separated shortly before Ms Visisombat’s death on 4 August 1999.

By her will, dated 25 May 1997, Ms Visisombat left her entire estate to her two children and stated that she had made no provision for Mr Singvongsa as she had adequately provided for him during her lifetime. However, counsel and the trial judge accepted that this statement was false. Ms Visisombat left a net estate valued at about $620,000.

Judgment at first instance and costs

In October 2000, Mr Singvongsa issued proceedings in the Supreme Court of Victoria against the executor of Ms Visisombat’s estate under Part IV of the Administration and Probate Act seeking adequate provision from Ms Visisombat’s estate. At the trial in July 2002, Byrne J found that at the date of her death Ms Visisombat had a moral obligation to provide for Mr Singvongsa who had no assets and only a modest income. His Honour ordered that the net estate be shared equally between Mr Singvongsa and Ms Visisombat’s two children, which amounted to about $200,000 each.

In his reasons for judgment, Byrne J stated that he had had regard to the matters prescribed in s91(4) of the Administration and Probate Act. His Honour referred to the duration of the marriage (three years), Mr Singvongsa’s evidence that his marriage to Ms Visisombat was a marriage of love, Mr Singvongsa’s payment of the living and household expenses and outgoings and Mr Singvongsa’s support of Ms Visisombat’s daughter who lived with them. Byrne J also referred to the size of the estate and the fact that Ms Visisombat’s two children were young and financially disadvantaged.

Many months before the hearing, Mr Singvongsa had offered to accept one-quarter of Ms Visisombat’s net estate together with payment of his solicitor/client costs in full and final settlement of his claim. The offer was made in a Calderbank letter.[8] The appellant rejected the offer.

As Mr Singvongsa received more than one-quarter of the estate at trial, counsel for Mr Singvongsa submitted to Byrne J that the appropriate order as to costs would be that the appellant pay Mr Singvongsa’s costs on an indemnity basis rather than on a solicitor/client basis, which is the usual order in Part IV claims. Byrne J agreed and ordered that Mr Singvongsa’s costs be paid out of the estate on an indemnity basis.

Grounds of appeal and appellant’s submissions

Byrne J’s decision was appealed in August 2002 and the appeal heard on 13 May 2003.

The appeal was against Byrne J’s exercise of discretion in relation to the amount to be paid out of the estate to Mr Singvongsa. The appeal sought that the order made by his Honour that the estate be distributed by way of three equal shares be set aside and that an order be made in lieu thereof that Mr Singvongsa receive one-tenth of the net residuary estate. The appellant submitted that Byrne J had fallen into error in the exercise of his discretion in that he had failed to accord sufficient weight to the deficiencies of the marriage between Mr Singvongsa and Ms Visisombat. Mr Singvongsa did not appeal the costs order made by Byrne J.

The deficiencies cited by the appellant included the relatively short duration of the marriage, the fact that the relationship was not that of a close, loving, committed couple but was in fact a marriage of convenience to enable Ms Visisombat to obtain residency in Australia, the eight-month separation at the time that Ms Visisombat died, a cumulative separation of about 18 months during the marriage, Mr Singvongsa’s minimal financial contribution (which, it was said, had the parties divorced during the lifetime of Ms Visisombat would have led to a minimal entitlement for Mr Singvongsa) and the non-reciprocation of Mr Singvongsa’s love for Ms Visisombat.

The appellant also submitted that Byrne J had mistaken the facts in relation to the nature of the marriage and had not accorded sufficient weight to the competing claims of Ms Visisombat’s two children. Byrne J’s reasons for judgment were also criticised for not sufficiently setting out the relevant considerations taken into account and the weight allocated to those considerations.

The appellant contended that at best, Ms Visisombat’s obligation was to provide Mr Singvongsa with a small capital sum to compensate for a short, loveless marriage and that her overwhelming obligation was to her children.

Submissions of respondent

Mr Singvongsa submitted that, in accordance with the established principles relating to the determination of an appeal against an exercise of discretion, it was incumbent on the appellant to show that the exercise of discretion in relation to quantum had miscarried. Mr Singvongsa also submitted that the appeal ought be dismissed as Byrne J’s discretion as to the amount had not miscarried and was therefore not open to review and, in any event, that the solution arrived at was reasonable and within the range of appropriate provisions.

The Court was referred to the observation of Callaway JA in Grey v Harrison that:

“There is no single provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need to be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight”.[9]

Mr Singvongsa further submitted that, insofar as the marriage with Ms Visisombat was loveless, it was a consequence of the attitudes of Ms Visisombat towards him, and the extent of a testator’s moral obligation to provide for a spouse should not be unduly affected by the testator’s treatment of that spouse during the testator’s lifetime.

It was said that the appellant could there-fore not rely on the uncommitted way in which Ms Visisombat treated the marriage relationship to limit or reduce the provision that Ms Visisombat should otherwise have made for Mr Singvongsa.

It was also submitted that any attempt to import the considerations of another statutory jurisdiction, such as those of family law, ought be rejected, that Byrne J’s findings in relation to the nature of the marriage were amply supported by the evidence, that it was not clear why the benefits that Ms Visisombat’s children would receive under the will as varied by Byrne J were inappropriate and that Ms Visisombat’s obligation was to make adequate provision for the proper maintenance and support of Mr Singvongsa and not to provide him with a sum “to compensate for a short, loveless marriage”.

Court of Appeal judgment

The appeal was dismissed. In its judgment delivered on 15 May 2003, the Court of Appeal reaffirmed that the Court’s inquiry at the quantum stage of a claim under Part IV of the Administration and Probate Act involves an exercise of discretion. It reaffirmed that the manner in which an appeal from an exercise of discretion should be determined is governed by established principles, that there is a strong presumption in favour of the correctness of the decision appealed from and that the decision should therefore be affirmed unless the appeal court is satisfied that it is clearly wrong.

The Court of Appeal also declined to find that the primary judge had erred in finding that mutuality of affection was not necessary to satisfy the “relationship” criterion as between spouses and declined to import principles of family law into Part IV claims. The Court of Appeal concluded that the primary judge’s decision was perfectly reasonable and within the range of what was appropriate to the circumstances.

Implications for the future

Costs
As Mr Singvongsa did not appeal the cost order made by Byrne J this aspect of the order stands. This means that by making Calderbank offers to settle their claims, future plaintiffs will be able to put pressure on executors of estates (who are not beneficiaries). Many lawyers practising in the area of estate litigation previously believed that a plaintiff’s Calderbank offer was ineffective.

Discretion displacing value judgment?
Before the amendments effected by the Wills Act 1997, the class of eligible applicants comprised the spouse (widow or widower) and children (natural or legally adopted) of the deceased. No discretion was involved in determining whether an applicant was eligible. The next question – whether an eligible applicant had been left without adequate provision for his or her proper maintenance and support – constituted the jurisdictional or threshold stage.[1]0

The precise nature of the determination of the jurisdictional question has been held to be strictly speaking one of fact despite it involving the exercise of value judgments.[1]1 However, the High Court has acknowledged that the distinction between the approach of the Court at the jurisdictional stage (being an evaluation of facts) and the approach at the quantum stage (being an exercise of discretion) is artificial because “the twin tasks which face the primary judge are similar”.[1]2

It may be that under the amended Act each stage of the Part IV inquiry now does involve an exercise of discretion. This is because s91(4) of the Act now requires a court to conduct the same inquiry for each of the two parts of the jurisdictional stage and for the quantum stage.[1]3

Consequently, it may be no longer feasible in Victoria to describe the jurisdictional phase as strictly one of fact – it seems that the Act may now require, in respect of each of the three questions, an instinctive synthesis that takes into account all the relevant factors and gives them due weight.

If this is correct then it will be difficult to successfully appeal a decision under Part IV, whether the appeal is brought in respect of the jurisdictional stage or the quantum stage, given the strong presumption in favour of the correctness of the decision appealed from and the necessity to satisfy the appeal court that a vitiating error has occurred in the exercise of discretion by the primary judge.


KATHRYN REES is a member of the Victorian Bar, practising mainly in deceased estates, equity, trusts, commercial law and administrative law. CAROL MCOMISH is a member of the Victorian Bar. JULIE GRAINGER is a partner in the commercial litigation department at Slater & Gordon, practising mainly in estate litigation.


[1] [2003] VSCA 62.

[2] [1997] 2 VR 359.

[3] House v R (1936) 55 CLR 499 at 504.

[4] Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627.

[5] Note 3 above, at 504-505.

[6] Note 4 above, at 627.

[7] Singvongsa v Madden [2002] VSC 316.

[8] Calderbank v Calderbank (1975) 3 All ER 333.

[9] Note 2 above, at 366-367.

[10] Singer v Berghouse (1994) 181 CLR 201 at 212. This was an appeal under the Family Provision Act 1982 (NSW) but the comment applies across the various jurisdictions.

[11] Note 10 above, at 210-211.

[12] White v Barron (1980) 144 CLR 431 at 443.

[13] Harper J in Schmidt v Watkins [2002] VSC 273 referred to the three stages of inquiry now set out by statute.

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