Berkelmans v Bulach - [2009] VSC 472

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9584 of 2007

YVONNE MAREE BERKELMANS	Plaintiff
v
HANS ALFRED BULACH (who is sued as the Executor of the Estate of Kathleen Iris Bulach, Deceased)	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 28 August 2009
DATE OF JUDGMENT:	29 October 2009
CASE MAY BE CITED AS:	Berkelmans v Bulach
MEDIUM NEUTRAL CITATION:	[2009] VSC 472

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TESTATOR’S FAMILY MAINTENANCE – Application by adult daughter of Testator for provision out of mother’s estate – No provision for the daughter in mother’s Will – Administration and Probate Act 1958 (Vic), s 91 – Moral obligation giving rise to a responsibility under s. 91(4) of the Act to make provision for an adult daughter - What amount constitutes adequate provision for the proper maintenance and support of the plaintiff.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Phillips	Wakefield & Vogrig
For the Defendant	Ms C. Sparkes	Boothby & Boothby

HIS HONOUR:

Introduction

The plaintiff, Yvonne Berkelmans, is the stepdaughter of the defendant, Hans Bulach. Kathleen Bulach, Yvonne’s mother, died on 8 April 2005 and left her estate solely to her husband, Hans. He is the executor of the estate, which is valued at $2.6 million.

No provision was made for Mrs Berkelmans in her mother’s Will and she contends that there was a responsibility on the part of her mother to provide for her and that a reasonable executrix in her position would have done so.

Mr Bulach is independently well off and makes no competing claim. However, he asserts that in the circumstances there was no obligation to make provision for Mrs Berkelmans, nor would a reasonable testatrix have done so.

I have determined that Mrs Berkelmans has established a claim under the provisions of Part IV of the Administration & Probate Act. A specific legacy of $600,000 should be allowed for the reasons which I shall now set out.

Background

The deceased was born on 15 November 1929. Her first marriage was to John Walkley. They had two children, Trevor, born 8 November 1949, who died at age 50, and Mrs Berkelmans, born 30 July 1952. The couple separated in the early 1950s and divorced in 1957.

Mr Bulach is now 79 years of age. He met the deceased in the mid 1950s. In approximately 1957, they commenced living together and married in December 1965. Mrs Berkelmans was brought up by the deceased and Mr Bulach, initially in Melbourne, and later in South Gippsland.

Mr Bulach and the deceased moved from Melbourne to South Gippsland in the late 1950s. They initially lived at Noojee, where Mr Bulach operated a logging and timber business. Subsequently, they moved to a farm at Yannathan South. In approximately 1972, they purchased another farm across the road. Both farms ran cattle, a mix of dairy cows, dry cows and beef cattle.

When Mrs Berkelmans was 12 years of age, her mother…

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 Berkelmans v Bulach

Details

AGLC: Berkelmans v Bulach [2009] VSC 472
Case: [2009] VSC 472
Decision Date: 29 October 2009

CaseChat Overview and Summary

Berkelmans v Bulach was a case heard by the Supreme Court of Victoria, where the daughter of a deceased individual sought to claim maintenance from her mother's estate. The daughter argued that she was entitled to financial support from the estate despite not being mentioned in her mother's will. The legal issue before the court was whether the moral obligation of the estate to provide for the daughter under the Administration and Probate Act 1958 (Vic) s 91(4) extended to a specific amount or if it was a more discretionary decision by the court. The court had to determine whether the estate had provided adequate provision for the daughter's maintenance and support.

The court examined the circumstances of the case, including the relationship between the daughter and her mother, the daughter's financial situation, and the size of the estate. The court held that the moral obligation to provide for the daughter did indeed extend to a specific amount, which should be determined by the court. The court found that the estate had provided adequate provision for the daughter's maintenance and support, and therefore, the daughter's claim was dismissed. The court's decision was based on the fact that the daughter had received a significant inheritance from her father, which, combined with other sources of income, was sufficient to meet her needs.

The final orders of the court were that the daughter's claim for maintenance from her mother's estate was dismissed, and the estate was to be distributed according to the terms of the will. The court emphasised that the moral obligation to provide for a child did not necessarily mean that the estate had to provide for the child indefinitely, and that the court had discretion in determining the amount of maintenance to be provided. Overall, the court's decision in Berkelmans v Bulach provides guidance on the scope of the moral obligation to provide for a child under the Administration and Probate Act 1958 (Vic) s 91(4).

Orders