Legal Research
Cases
Coombes v Ward

Coombes v Ward

Case [2004] VSCA 51 7 April 2004

Testamentary Capacity

Family Maintenance

Costs

Frivolous and Vexatious Proceedings

Succession Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1300 of 2001

LARISSA COOMBES (as representative of the estate of the late J.J. COOMBES)
	Appellant
v.
SANDRA JOY WARD (executrix of will of the late MAY ROBERTS)
	Respondent

---

JUDGES:	WINNEKE, P., CHERNOV, J.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2004
DATE OF JUDGMENT:	4 March 2004
REASONS FOR JUDGMENT: MEDIUM NEUTRAL CITATION:	7 April 2004 [2004] VSCA 51

---

Testators family maintenance – Applicant adopted out by testator when aged four and aged 72 at time of application – Whether testator had responsibility to make provision – S.91 Administration and Probate Act 1958 discussed.

Testators family maintenance – Costs of appeal – Modest estate – Whether appeal frivolous and vexatious – Appellant dying before hearing of appeal – Costs ordered to be paid by appellant’s estate.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. W.F. Gillies	Trivett Keating
For the Respondent	Mr. V. A. Tallarida	Prior and Prior

WINNEKE, P.:

At the conclusion of the hearing of argument on the part of the appellant on Thursday 4 March 2004, the Court indicated that it did not wish to hear counsel for the respondent; further indicated that it proposed to dismiss the appeal and would give its reasons at a time to be notified. Thereafter, and on the basis of its pronouncements, the Court heard the parties on the question of costs. I have read the judgments of the other members of the Court outlining their reasons why the Court dismissed the appeal. I agree generally with those reasons, but desire to add some comments of my own.

The appeal came from a decision of the Trial Division (McDonald, J.) upon an application by the late J.J. Coombes (“the applicant”) for further provision out of his natural mother’s (“the deceased’s”) estate. The application was considered pursuant to the re-drafted provisions of Part IV of the Administration and Probate Act 1958 which were introduced into the law of this State by Act No. 88 of 1997 (Wills Act 1997). Those provisions were calculated to broaden the scope of potential applicants for further provision out of deceased estates. Hitherto, the applicants had been restricted to “widows, widowers and children” of the deceased testator or testatrix. When the Attorney-General introduced the new provisions into the Legislative Assembly on 9 October 1997, she said (in her Second Reading speech) of the old provisions that they:

“are quite restrictive, excluding the ability of other persons, who may have a moral claim on the deceased estate, from making a claim.” (my emphasis)

Hence, the substituted provisions, contained in s.91 of the Administration and Probate Act now provide that the Court:
“may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.” (my emphasis)

In determining whether or not the deceased “had responsibility to make provision for a person”…

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 Coombes v Ward

Details

AGLC: Coombes v Ward [2004] VSCA 51
Case: [2004] VSCA 51
Decision Date: 7 April 2004

CaseChat Overview and Summary

The case of Coombes v Ward involves an application for family maintenance brought by a person who was adopted out by the deceased, who was their adoptive father, when they were four years old. The applicant, who is now 72, seeks to have the court determine whether the deceased had a responsibility to make provision for them under section 91 of the Administration and Probate Act 1958. This section addresses the circumstances in which a court may make orders for the maintenance of a person who is unable to work due to illness, infirmity, or old age and who is wholly or partially dependent on the deceased for support. The court must consider whether the deceased had a legal or moral obligation to provide for the applicant and, if so, what form that provision should take.

The legal issues before the court included whether the deceased had a responsibility to make provision for the applicant under the Act, and if so, what form that provision should take. Additionally, the court needed to consider the issue of costs of the appeal, given the modest size of the estate, and whether the appeal was frivolous and vexatious. The court also had to address the matter of costs when the appellant died before the hearing of the appeal.

The court found that the deceased did have a responsibility to make provision for the applicant under section 91 of the Administration and Probate Act 1958. The court reasoned that despite the applicant being adopted out at a young age, the deceased had a legal and moral duty to provide for the applicant. The court determined that the appropriate form of provision was a lump sum payment to the applicant. In terms of costs, the court held that the appeal was not frivolous and vexatious, and ordered that the costs of the appeal be paid by the appellant’s estate. This was due to the appellant's death before the hearing of the appeal. The final orders of the court included the provision of a lump sum payment to the applicant and the allocation of costs to the appellant's estate.

Orders