Coombes v Ward

Case [2002] VSC 61


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT WANGARATTA

COMMERCIAL AND EQUITY DIVISION

No. 1300 of 2001

In the Matter of Part IV of the Administration and Probate Act 1958 and
In the Matter of the Will and Estate of May Roberts, deceased

Between:

JOHN JOSEPH COOMBES Plaintiff
v
SANDRA JOY WARD (Who is sued as the executrix of the Will of the abovenamed deceased) Defendant

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JUDGE:

McDonald J

WHERE HELD:

Melbourne

DATE OF HEARING:

14, 15 February 2002

DATE OF JUDGMENT:

21 March 2002

CASE MAY BE CITED AS:

Coombes v Ward

MEDIUM NEUTRAL CITATION:

[2002] VSC 61

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Testators family maintenance: deceased the natural mother of plaintiff; plaintiff with consent of deceased adopted by two married persons when approximately four years of age; deceased subsequently married having one child, the defendant; no provision made in the will of the deceased for the maintenance and support of plaintiff; amendments to s. 91 of the Administration and Probate Act, as effected by s. 55 the Wills Act 1997; plaintiff treated in law as not the child of the deceased and deceased not a parent of the plaintiff; the fact that plaintiff in law not a child of the deceased does not prevent the court determining that deceased had “responsibility” to make provision for the proper maintenance and support of the plaintiff out of her estate; nature of relationship existing between plaintiff and deceased; matters that must be had regard to by the court when determining whether deceased had “responsibility” to make provision for plaintiff out of her estate.
Adoption Act 1984 s. 53, Administration and Probate Act s. 91 as amended by s. 55 of the Wills Act 1997.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr William Gillies Trivett Keating
For the Defendant Mr Vincent Tallarida Prior & Prior

HIS HONOUR:

  1. These proceedings were commenced by originating motion filed on behalf of the plaintiff. The proceedings are brought by the plaintiff pursuant to Part IV of the Administration and Probate Act 1958 (as amended). The defendant is sued as the executrix of the Will of May Roberts, deceased, who died on 8 June 2000 at 90 years of age. On 5 September 2000 probate of the Will of the deceased, made on 23 October 1973, was granted to the defendant. By her Will the deceased devised and bequeathed the whole of her real and personal estate to the defendant who is the daughter of the deceased and who is, in the Will, called Sandra Joy Twikler. In these proceedings the plaintiff claims that he is a person for whom the deceased had “responsibility” to make provision for his proper maintenance and support and that by her Will the deceased did not make adequate provision for his proper maintenance and support.

  1. By the originating motion the plaintiff sought an order that provision be made for his maintenance and support by providing him with an absolute interest in one-half of the deceased’s estate.  At the commencement of the trial…

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Coombes v Ward [2002] VSC 61
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[2002] VSC 61
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CaseChat Overview and Summary

In the case of Coombes v Ward, the plaintiff, Coombes, sought maintenance and support from the estate of the deceased, Ward, who was his natural mother. Coombes was adopted by a married couple when he was approximately four years old, with the consent of Ward. Ward later married and had another child, the defendant in this case. No provision was made in Ward's will for the maintenance and support of Coombes. The legal issue at the heart of this case was whether Coombes was entitled to maintenance from Ward's estate despite the adoption, in light of the amendments to section 91 of the Administration and Probate Act, as effected by section 55 of the Wills Act 1997, which treated Coombes as not the child of Ward and Ward not his parent.

The court had to determine if Ward had a "responsibility" to make provision for Coombes' maintenance and support out of her estate, despite the legal status of the adoption. The court considered the nature of the relationship between Coombes and Ward, and the factors it deemed necessary to assess whether Ward had such a responsibility. The court concluded that the fact Coombes was not legally Ward's child did not preclude the court from finding that Ward had a responsibility to provide for him. The court assessed the relationship and other relevant matters to decide on this responsibility.

The court found that Ward did have a responsibility to provide for Coombes' maintenance and support out of her estate. This decision was based on the unique circumstances of their relationship, taking into account the specific provisions of the Adoption Act 1984 and the Administration and Probate Act, as amended. Consequently, the court ruled in favour of Coombes, granting him the maintenance and support sought from Ward's estate.

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