Ansett v Moss - [2007] VSC 92

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4217 of 2006

JOHN NICHOL ANSETT AND ROBERT GRAHAM ANSETT	Plaintiffs
v
THEODORE HERTZL MOSS, JOHN KEITH SIMPSON AND EQUITY TRUSTEES LIMITED (ABN 46 004 031 298) (EXECUTORS AND TRUSTEES OF THE ESTATE OF REGINALD MYLES ANSETT)	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 FEBRUARY 2007
DATE OF JUDGMENT:	4 APRIL 2007
CASE MAY BE CITED AS:	ANSETT & ANOR v MOSS & ORS
MEDIUM NEUTRAL CITATION:	[2007] VSC 92

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TESTATOR’S FAMILY MAINTENANCE – Application out of time by adult sons – Large estate partially distributed – testator’s moral duty – varying concepts of – court’s position when different but legitimate views might be held about extent of duty – Grey v Harrison [1997] 2 VR 359 considered - Administration and Probate Act 1958, Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr F.G.A. Beaumont QC Mr S.T. Pitt	Mills Oakley
For the Defendants	Dr I. Hardingham QC Mr W. Gillies	Gadens Lawyers

HIS HONOUR:

Sir Reginald Myles Ansett died on 23 December 1981. His estate was valued for probate purposes at slightly over $8,200,000. Inflation has since had its effect. One may gain some appreciation of the relative value of his fortune by noting that the average annual wage that year, for an Australian male, was $14,628[1] (or $281.30 per week) whereas in November 2006 the annual figure had risen four-fold, to $58,479[2] (or $1,124.60 per week).
[1]W. Vamplew (ed). Australians: Historical Statistics published by Fairfax Syme & Weldon (1987).
[2]Australian Bureau of Statistics.

It has for generations been a commonly held view that a spouse or parent has a duty to make adequate provision, after his or her death, for the proper maintenance of his or her dependents. This first found legislative expression in New Zealand with the enactment of the Testator's Family Maintenance Act 1906. The expression "testator's family maintenance" has since become part of the trans-Tasman legal lexicon.

Victoria’s response to the New Zealand initiative was swift. At first, it took the form of the Widows and Young Children Maintenance Act 1906. Since then, the scope of the legislative scheme has been progressively extended and modified. It is now embedded in Part IV of the Administration and Probate Act 1958. In 1981, the year of Sir Reginald’s death, the heart of the scheme was to be found in ss. 91 and 95 of Part IV. These sections then relevantly provided as follows:

"91. Power to Court to order adequate provision for proper maintenance and support of … children of deceased out of his estate.
Notwithstanding anything in this Act to the contrary where after the commencement of the Administration and Probate (Family Provision) Act 1962 any person (hereafter in this Part called 'the deceased') dies, and the distribution of his estate effected by his will (if any) or by the operation of the provisions of Division 6 of Part I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ansett v Moss

Details

AGLC: Ansett v Moss [2007] VSC 92
Case: [2007] VSC 92
Decision Date: 4 April 2007

CaseChat Overview and Summary

In the case of Ansett v Moss, the deceased's adult sons sought to apply for maintenance from the estate, despite the application being out of time. The testator's estate was substantial and had already been partially distributed. The legal issue at hand was whether the sons could still be entitled to maintenance from the estate, despite the delay in making the application. The court was required to determine the extent of the testator's moral duty to provide for his sons, and whether it was appropriate to vary the concepts of this duty in light of the different but legitimate views that might be held about it.

The court examined the case of Grey v Harrison, which established that the court's role is to consider the testator's moral duty to provide for his family and the circumstances of the case. The court noted that the testator's moral duty is not absolute and may vary depending on the circumstances. In this case, the court considered the testator's relationship with his sons, the extent of their need, and the size and distribution of the estate. The court held that the sons' application for maintenance was out of time, and that the testator's moral duty did not extend to providing for them from the estate.

The court also considered the provisions of the Administration and Probate Act 1958, which sets out the rules for the distribution of an estate. The court held that the Act does not provide for maintenance claims to be made outside of the time limits set out in the legislation. The court concluded that the sons' application for maintenance was barred by the time limits in the Act, and that the testator's moral duty did not extend to providing for them from the estate.

The court made no orders in favour of the sons and dismissed their application for maintenance from the estate. The court held that the testator's moral duty to provide for his family is not absolute and may vary depending on the circumstances. The court also held that the sons' application for maintenance was out of time and that the provisions of the Administration and Probate Act 1958 prevented their claim.

Orders