Coombes v Ward - [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:

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.

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…

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 [2002] VSC 61
Case: [2002] VSC 61
Decision Date: 21 March 2002

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.

Orders