Anslow v Journeaux

Case [2009] VSC 250


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5577 of 2008

PATRICIA ANSLOW Plaintiff
v
JOHN RICHARD JOURNEAUX
and
JOHN FRANCIS XAVIER DILLON
Defendants

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JUDGE:

BEACH J

WHERE HELD:

Melbourne

DATE OF HEARING:

15 – 17 June 2009

DATE OF JUDGMENT:

23 June 2009

CASE MAY BE CITED AS:

Anslow v Journeaux & Anor

MEDIUM NEUTRAL CITATION:

[2009] VSC 250

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TESTATOR’S FAMILY MAINTENANCE – De facto wife’s claim – Obligations and responsibilities of the deceased to the applicant – Obligations and responsibilities of the deceased to adult children – Contribution of the applicant to the welfare of the deceased – Financial resources of the applicant – Financial resources of adult children of the deceased – Provision of a unit and a nest egg – Inappropriateness of a life interest – Administration and Probate Act 1958, s 91.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr S.F. McNab E.P. Johnson & Davies
For the Defendants Mr M.C. McKenzie Mahonys

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The background facts........................................................................................................................ 3

The deceased’s three children......................................................................................................... 5

The plaintiff and the deceased’s three children as witnesses................................................... 6

The relationship between the plaintiff and the deceased......................................................... 6

Matters which must be had regard to.......................................................................................... 13

The prospect of the plaintiff realising any interest in 33 Pascoe Avenue............................ 14

Mr Anslow’s superannuation fund.............................................................................................. 17

The entitlements of Mr Farrington, Ms Cujko and Ms Farrington in respect of the Dennis Farrington trust................................................................................................................................. 18

The financial resources and needs of the parties....................................................................... 18

Does the Will make adequate provision for the proper maintenance and support of the plaintiff?.............................................................................................................................................................. 19

What is the amount of provision that should be ordered for the plaintiff?......................... 21

Conclusion......................................................................................................................................... 25

HIS HONOUR:

Introduction

  1. Dennis Daniel Farrington (“the deceased”) died on 20 June 2007, leaving an estate the value of which is now agreed at $1,644,000.  By his last Will,[1] the deceased left:

    [1]Made 20 December 2006.

(a)       the sum of $200,000 to the plaintiff;

(b)      three other legacies totalling $11,000, which the plaintiff does not seek to set aside;[2] and

(c)       the balance of his estate in equal shares to his three children, Wayne Edward Farrington, Dale Amanda Cujko and Tracey Anne Farrington.

[2]See T4.21.

  1. The plaintiff has already been paid the sum of $200,000 left to her.  In this proceeding, the plaintiff seeks, pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”), such provision for the plaintiff’s proper maintenance and support as the Court thinks fit to be made out of the estate of the deceased. Specifically, the plaintiff says that in substitution for the legacy of $200,000 she was left in the Will, she should receive a lump sum of $800,000 “being $500,000 to enable her to purchase a unit for her residence and a nest egg of $300,000”.[3]  Alternatively, the plaintiff seeks “45% of the net estate after payment of estate liabilities and legacies other than the legacy left to her”.[4]  It is to be noted that the sum…

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Anslow v Journeaux [2009] VSC 250
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[2009] VSC 250
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CaseChat Overview and Summary

The case of Anslow v Journeaux involved the applicant, Ms Anslow, seeking maintenance from the estate of her deceased de facto husband, Mr Journeaux. The dispute centred on whether Ms Anslow was entitled to a share of the estate under the relevant statutory provisions. The matter was heard in the Supreme Court of Victoria. The legal issues at the core of the case were the obligations and responsibilities of the deceased to Ms Anslow, as well as to his adult children, and the financial resources available to both parties. The court was required to balance the contributions made by Ms Anslow to the deceased’s welfare against the financial resources available to her and the deceased’s adult children.

In delivering its judgment, the court emphasised the importance of considering the specific circumstances of each case when determining maintenance claims under the Administration and Probate Act 1958. It held that the applicant's contributions to the deceased's welfare and her financial circumstances were crucial factors. The court found that Ms Anslow had made significant contributions to the welfare of Mr Journeaux and had limited financial resources of her own. In contrast, the deceased's adult children were financially independent. The court concluded that while it was not appropriate to grant Ms Anslow a life interest in the property, she was entitled to a provision from the estate to ensure her future financial security.

The court ordered that Ms Anslow be provided with a unit and a nest egg from the estate of Mr Journeaux. This decision recognised her contributions to the deceased's welfare and her current financial circumstances, ensuring a fair outcome in the distribution of the estate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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