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

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.

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…

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 Anslow v Journeaux

Details

AGLC: Anslow v Journeaux [2009] VSC 250
Case: [2009] VSC 250
Decision Date: 23 June 2009

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