Costigan v Norton - [2005] VSC 208

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

IN THE MATTER of an application pursuant to Part IV of the Administration and Probate Act 1958
- and -

IN THE MATTER of the Will and Estate of PETER ALOYSIUS COSTIGAN, deceased

No. 7303 of 2003

DAVID ANDREW COSTIGAN (who brings this proceeding

by his Administrator, State Trustees Limited)

Plaintiff

SUSAN MAY NORTON in her own capacity and with others

Defendants

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No. 7320 of 2003

SUSAN MAY NORTON	Plaintiff
V
GERARD ANTHONY COSTIGAN and FRANCIS XAVIER COSTIGAN (who are sued as two of the Executors of the Will of Peter Aloysius Costigan, deceased)	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATES OF HEARING:	6 June and 30 August 2005
DATE OF JUDGMENT:	11 November 2005
CASE MAY BE CITED AS:	Costigan v Norton; Norton v Costigan
MEDIUM NEUTRAL CITATION:	[2005] VSC 208	First Revision: 14^thNovember 2005

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Testator’s Family Maintenance – de facto widow - adult son with disability – whether deceased had responsibility to make testamentary provision – whether adequate provision made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (No 7303 of 2003) (State Trustees Ltd)	Ms Carol McOmish	State Trustees Ltd
For the Plaintiff (No 7320 of 2003) and First Defendant (No 7303 of 2003) (Susan May Norton)	Mr R.C. Wells	Dibbs Abbott Stillman
For the Defendants (No 7320 of 2003) and Second and Third Defendants (No 7303 of 2003) (The Executors)	Mr R. Shepherd	Coadys

HIS HONOUR:

Peter Aloysius Costigan died on 5 August 2002 leaving a last will dated 22 December 1993. Probate of the will was granted to the executors Susan May Norton (his domestic partner of some 11 years), Gerard Anthony Costigan (his son) and Francis Xavier Costigan (his brother).

The scheme of the will was straightforward. The deceased left all of his estate upon trust for sale with the proceeds, after payment of the usual expenses, to be divided into four equal parts: two parts he gave to Ms Norton, one part to Gerard Costigan and one part to his daughter Nicole Francis Costigan. He made no provision for his eldest son, David Andrew Costigan.

Before the Court are two applications for provision, or further provision, brought by David and Ms Norton respectively. By order of 27 July 2004 the two proceedings were directed to be heard together and this occurred. I ordered, too, that in each case the evidence in one proceeding be evidence in the other.

The estate of the deceased comprised his six-sevenths’ interest in the matrimonial home at 4 Webb Lane East Melbourne and a car park at that address, as well as some investments. He also had at the date of his death a superannuation entitlement to which I shall return.

The position as it now stands is that the car park has been sold. The estate still holds the home which is now valued at $650,000. The interest of the estate in this home is as…

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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Details

Case: [2005] VSC 208
Decision Date: 11 November 2005

CaseChat Overview and Summary

In the matter of Costigan v Norton, the court was asked to determine the distribution of a deceased's estate in accordance with his will. The primary parties involved are the executor of the estate, Norton, and the de facto widow, Costigan, along with the deceased’s adult son who has a disability. The dispute centres around the interpretation of the deceased’s will and whether it adequately provides for the maintenance and support of the de facto widow and the disabled son.

The legal issues before the court required clarification on two main points. Firstly, whether the deceased had a legal obligation to make testamentary provision for the de facto widow and the disabled son, and secondly, whether the provisions made in the will were adequate to meet their needs. The court had to consider statutory provisions concerning the maintenance of de facto partners and disabled children, and compare these with the specific testamentary provisions made by the deceased.

The court found that under the relevant statutory provisions, the deceased did indeed have a responsibility to provide for the de facto widow and the disabled son. However, the will in question did not sufficiently address the needs of these beneficiaries. The court concluded that the provisions made were inadequate and ordered that the estate be distributed in a manner that would ensure the de facto widow and disabled son receive adequate support. The court's decision was guided by the need to balance the deceased’s testamentary freedom with the statutory obligations to provide for dependents.

In conclusion, the court ordered that the estate be redistributed to ensure that the de facto widow and disabled son receive adequate maintenance. The executor was directed to implement the changes to the estate distribution to comply with the court's decision. The court’s ruling underscores the importance of considering statutory obligations when interpreting and executing a will, particularly in cases involving de facto relationships and disabled children.

Orders