JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2007
DATE OF JUDGMENT:	20 February 2007
CASE MAY BE CITED AS:	Carter v O'Brien
MEDIUM NEUTRAL CITATION:	[2007] VSC 21

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TESTATOR’S FAMILY MAINTENANCE – Application by domestic partner and carer of deceased – Whether deceased had made adequate provision for the plaintiff by his will – Amount of further provision.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Baker	John Denton & Associates
For the Defendant	Mr R Boaden	John O’Brien & Associates

HIS HONOUR:

By originating motion dated 31 March 2005 Cynthia Eileen Carter (“the plaintiff”) seeks further provision for her proper maintenance and support out of the estate of Peter O’Brien (“the deceased”). The plaintiff says that she is a person for whom the deceased had responsibility to make provision within the meaning of s.91(1) of the Administration and Probate Act 1958 Vic (“the Act”) and that the deceased, by his will, had failed to make adequate provision for her proper maintenance and support.

The evidence herein was provided by affidavits of the plaintiff and the defendant and also by way of a chronology handed up by counsel for the defendant in “a non-contentious form”[1]. In addition, the plaintiff was cross-examined on her affidavit.
[1]Counsel for the plaintiff did not suggest that the chronology was inaccurate.

The deceased was born on 13 January 1930 and died on 6 October 2004 at the age of 74 years. The deceased was married to Margaret Daughan O’Brien. They separated in June 1997 but, although there was some kind of property settlement, the marriage was never dissolved. There were eight children of the marriage, still living, who are set out hereunder. It is also convenient to note the evidence that has been provided in relation to the position of the children, including their financial position, as follows:

(a)Margaret Ann Roman was born on 21 November 1953. She is employed as a part-time clerk working three days per week. She owns her own home at 69 Farm Road, Cheltenham worth about $280,000 subject to a mortgage and other liabilities of about $85,000. She has two severely handicapped children (Jacinta and Gerard, aged about 24 and 22 respectively) who live with her and are unable to live independently.
(b)Monica Mary Flaherty was born on 23 February 1957. She is employed as a part-time accounts clerk working two days a week. She and her husband rent their home in Sunbury and their only asset is an old Ford Falcon car.
(c)Carmel Therese Kuspira was born on 22 July 1959. She is employed as a retail assistant working two days…

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 Carter v O'Brien

Details

AGLC: Carter v O'Brien [2007] VSC 21
Case: [2007] VSC 21
Decision Date: 20 February 2007

CaseChat Overview and Summary

In the case of Carter v O'Brien, the plaintiff, Ms. Carter, sought maintenance from the estate of her deceased partner, Mr. O'Brien. Ms. Carter, who had been in a long-term relationship with Mr. O'Brien, acted as his primary caregiver in the years leading up to his death. The dispute centred on whether Mr. O'Brien had made adequate provision for Ms. Carter through his will and, if not, the appropriate amount of additional maintenance required. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether Mr. O'Brien's will adequately provided for Ms. Carter, given her role as his domestic partner and primary caregiver. The court needed to assess the sufficiency of the provisions made in the will against the principle of making reasonable financial provision for a surviving partner, as outlined in the Family Provision Act. The court also needed to determine the amount of maintenance, if any, that should be granted to Ms. Carter beyond what was stipulated in the will.

The court, in its reasoning, examined the provisions made in Mr. O'Brien's will, which included a substantial but not exclusive bequest to Ms. Carter. The court recognised the importance of the care and support Ms. Carter provided to Mr. O'Brien, especially in light of his deteriorating health. The court held that while the bequest was significant, it did not fully account for the level of care and support provided by Ms. Carter. Consequently, the court ordered that additional maintenance be paid to Ms. Carter, to reflect the reasonable financial provision she should receive.

The final orders of the court mandated that the estate of Mr. O'Brien should pay Ms. Carter an additional sum of $200,000 by a specified date. This amount was intended to supplement the provisions made in the will and provide Ms. Carter with reasonable financial security. The court's decision underscored the importance of considering the unique circumstances of each case, particularly the level of care and support provided by the surviving partner.

Orders