IN THE MATTER of the will and estate of ULRICH ALEXANDER BRAUNTHAL deceased
BETWEEN:
RICHIE BOREBOR
Plaintiff
- and -
PATRICIA ANNE KEANE (who is sued as the executor of the will and estate of ULRICH ALEXANDER BRAUNTHAL deceased) & ORS (according to the schedule annexed)
Defendants
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JUDGE:
HARGRAVE J
WHERE HELD:
Melbourne
DATE OF HEARING:
19 and 20 April 2012 and 22, 24 and 25 January 2013
DATE OF JUDGMENT:
19 February 2013
CASE MAY BE CITED AS:
Borebor v Keane
MEDIUM NEUTRAL CITATION:
[2013] VSC 35
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TESTATOR’S FAMILY MAINTENANCE – Deceased treated plaintiff as if she were his daughter – Plaintiff not in fact the deceased’s daughter – Deceased assumed responsibility to maintain plaintiff – Large estate – Order for provision made.
Did Alex have a responsibility to make provision for Richie in his will?............................ 21
What amount of provision should be ordered?......................................................................... 28
Should any protective orders be made?....................................................................................... 33
Conclusion and orders.................................................................................................................... 35
HIS HONOUR:
Ulrich Alexander Braunthal (‘Alex’) died alone in a nursing home on 6 March 2008, aged 84 years. He had for some years been suffering from dementia. He was not married; had no children; his two half-brothers, Frank and Heinz, had pre-deceased him; and his only living relatives were three nephews: Anthony, Simon and Michael. The nephews played no significant part in his life, and played no role in his care during his declining years. Such care and support as Alex received during this time was from his accountant, Angelo Gangemi.
By his will dated 13 August 1991, Alex appointed his previous secretary, Patricia Keane, as his executrix. He gave her a specific bequest of $150,000 and gave the balance of his estate as follows:
(1) one third to be shared equally between two of his nephews, Anthony and Simon, and their mother, Noelene, Heinz’s widow. They are the second, third and fourth defendants;
(2) two thirds to his half-brother Frank. As Frank died before Alex, there is an intestacy as to two thirds of Alex’s estate. In the absence of any claim for provision from the estate, the residuary estate will be divided equally between the three nephews as Alex’s next of kin.[1] There is no evidence that the nephews have any financial need.
The estate is a large one. Alex conducted a successful business and was an extremely frugal man. The estate is valued at about $4.75 million.
The residuary estate approximates $3.15 million. This case concerns how that amount should be distributed.
The plaintiff, Richie Borebor (‘Richie’) makes a claim for provision from the estate. Richie…
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.
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Borebor v Keane [2013] VSC 35
Case
[2013] VSC 35
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Victoria, the case of Borebor v Keane involved a dispute over the provision to be made for the plaintiff from the estate of the deceased, Mr Borebor. The plaintiff, Ms Keane, claimed that although she was not the biological daughter of Mr Borebor, he treated her as if she were his daughter and assumed responsibility for her maintenance. Given the substantial size of Mr Borebor's estate, Ms Keane sought an order for adequate provision from his estate. The court was tasked with determining whether Ms Keane was entitled to maintenance under the circumstances and, if so, the appropriate amount.
The primary legal issue the court had to resolve was whether Ms Keane, despite not being the deceased's biological daughter, could claim maintenance from his estate based on the assumption of parental responsibility and the treatment she received as if she were his daughter. The court also needed to assess the quantum of provision that was reasonable and just, considering the deceased's financial position and the nature of the relationship.
The court found that Mr Borebor had indeed treated Ms Keane as if she were his daughter and had assumed responsibility for her maintenance. This treatment and assumption of responsibility created an obligation on his estate to provide for her. Considering the deceased's large estate and the circumstances, the court concluded that an order for provision should be made. The court determined the amount of maintenance to be reasonable and just under the specific facts of the case.
The final orders of the court included a provision for Ms Keane from Mr Borebor's estate, reflecting the court's findings regarding the maintenance obligation and the appropriate quantum of the provision.