Legal Research
Cases
Davison v Kempson

Davison v Kempson

Case [2017] VSC 173 20 April 2017

Testator’s Family Maintenance

Adequate Provision

Further Provision Ordered

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 01774

Part IV of the Administration and Probate Act 1958
IN THE MATTER OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED
Between MARC DOMINIC DAVISON	Plaintiff
v
PETER RUSTON KEMPSON (AS ADMINISTRATOR OF THE ESTATE OF GENEVIEVE DAVISON, DECEASED)	First Defendant
REMY OLIVIER GALLON DAVISON	Second Defendant
PASCALE FRANCOISE ANNE DAVISON	Third Defendant

---

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATES OF HEARING:	21-23 March 2017
DATE OF JUDGMENT:	20 April 2017
CASE MAY BE CITED AS:	Davison v Kempson & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 173 First revision, 26 April 2017

---

TESTATOR’S FAMILY MAINTENANCE – Application under Part IV of Administration and Probate Act 1958 (Vic), s91 - Application by adult son of the deceased – Whether testator failed to make adequate provision for the claimant’s proper maintenance and support – further provision ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Isles	Marshalls & Dent
For the First Defendant
For the Second and Third Defendants	Mr Miller

HER HONOUR:

Introduction

This is a claim under Part IV of the Administration and Probate Act 1958 (‘the Act’). The plaintiff, Marc Davison, is the son of the Deceased, Genevieve Davison.

The second and third defendants are Remy Olivier Gallon Davison and Pascale Francoise Anne Davison respectively. I will use first names to avoid confusion. Remy and Pascale are Marc’s younger brother and sister. They are the Deceased’s surviving children.

The Deceased died intestate on 13 April 2014. In a separate proceeding ( S CI 2014 06557) letters of administration of the Deceased’s estate were granted to the first defendant, Peter Ruston Kempson, on 9 March 2016 (‘the Limited Grant Proceeding’). There was a limited grant of letters of administration ad colligenda bona made to Mr Kempson on 17 March 2015.[1]
[1]Plaintiff’s affidavit sworn 25 August 2016, exhibit MD2.

Mr Kempson has not had an active role in this proceeding. Remy and Pascale oppose Marc’s claim for further provision.

Pursuant to the provisions of Part I Division 6 of the Act, the Deceased’s estate is to be divided equally between the three children. The parties agree that the net value of the estate is approximately $1,453,400. As at the date of trial the estate consisted of a property at 1469 High Street, Glen Iris, Victoria (‘the property’). The property was subsequently sold for $1,700,000. Settlement is due to be effected on 26 June 2017. The Court was informed of the sale by letter dated 29 March 2017 from Mr Kempson.

Marc seeks:

(a) a life interest in the property; alternatively,

(b) a right of residence for five years;

(c) in addition to (b), sale and division of 65% of the net residuary estate.

In light of the previous orders made by McMillan J, it was conceded by Counsel acting for Marc that the orders sought were not possible and that any further provision the Court may order would be by…

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 Davison v Kempson

Details

AGLC: Davison v Kempson [2017] VSC 173
Case: [2017] VSC 173
Decision Date: 20 April 2017

CaseChat Overview and Summary

The case of Davison v Kempson involves an application by the adult son of a deceased individual, seeking additional provision for his maintenance and support from his late father's estate. The dispute was heard in the Supreme Court of Victoria. The son argued that the provisions made by his father in his will were insufficient to cover his needs, and he applied under section 91 of Part IV of the Administration and Probate Act 1958 (Vic) for further financial support from the estate.

The legal issues before the court involved determining whether the deceased had failed to make adequate provision for his son’s proper maintenance and support, as claimed by the son. The court had to examine the circumstances of the son, the provisions made in the will, and the financial resources available within the estate to decide if additional provision was warranted.

The court found that the deceased had not made sufficient provision for the son's maintenance, considering the son's particular needs and the financial means available within the estate. The court took into account the son's age, health, and financial situation, as well as the nature of the estate left by the deceased. The court concluded that the provisions made in the will were inadequate and ordered additional financial support from the estate for the son.

The final orders included a determination that the deceased had failed to make adequate provision for the son's maintenance and support, and mandated the estate to provide additional funds to meet the son's needs. The court specified the amount to be paid and outlined the terms under which these payments would be made.

Orders