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Feehan v Toomey

Feehan v Toomey

Case [2014] VSC 488 3 October 2014

Testator’s Family Maintenance

Application Under Pt IV of the Administration and Probate Act 1958

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 06060 of 2012

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

- and –

IN THE MATTER of the will of MARIE LOYOLA CLEARY, deceased

KHRISTIANA FEEHAN, JAMIE SWITZER and SARAH CLEARY	Plaintiffs
v
CATHERINE ANNE TOOMEY and JOHN EDWARD CLEARY (who are sued as the executors of the will and estate of the abovenamed deceased and in their personal capacity)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2014
DATE OF JUDGMENT:	3 October 2014
CASE MAY BE CITED AS:	Feehan v Toomey
MEDIUM NEUTRAL CITATION:	[2014] VSC 488

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Succession law — Testator’s family maintenance — Application under Pt IV of the Administration and Probate Act 1958 — Application by granddaughter of the deceased — Where daughter’s mother and daughter of the deceased predeceased the deceased — Where no substantial relationship shown — No responsibility to provide — MacEwan Shaw v Shaw (2003) 11 VR 95 considered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Wilmoth	J H Legal Pty Ltd
For the Defendant	Mr M McKenzie	John Perillo

HER HONOUR:

Introduction

In this proceeding the first plaintiff, Khristiana Feehan (‘the plaintiff’) seeks provision for her maintenance and support from the estate of her late grandmother, Marie Loyola Cleary (‘the deceased’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’).

The deceased died on 24 February 2012, leaving a will dated 26 January 2010 (‘the will’). Probate of the will was granted to the defendants, a son and a daughter of the deceased, on 10 May 2012. The deceased was survived by eight of her nine children. One of her daughters, Eileen Mary Cleary, predeceased the deceased on 1 January 2010, leaving three children, who are the three plaintiffs. The deceased left the residue of her estate to her eight surviving children, with gifts over to the children of her surviving children. As Eileen Mary Cleary predeceased the deceased, her three children did not take any benefit under the deceased’s will. The deceased’s penultimate will, dated 2 August 2001, left the residue of her estate to her nine children, with gifts over to the children of each of her children, including the three plaintiffs. No challenge was made to the validity of the deceased’s last will.

Jamie Switzer, the second plaintiff, and Sarah Cleary, the third plaintiff, were initially plaintiffs in this proceeding, also seeking further provision. The second plaintiff, Jamie Switzer, died in February 2014 and no claim is pressed on his behalf. The third plaintiff, Sarah Cleary, did not appear at trial despite indicating only two days before that she would be attending. Although her counsel initially sought to reserve her position, ultimately she was unable to be contacted despite the efforts by her instructing solicitors to contact her and counsel did not proceed with her claim against the estate of the deceased.…

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 Feehan v Toomey

Details

AGLC: Feehan v Toomey [2014] VSC 488
Case: [2014] VSC 488
Decision Date: 3 October 2014

CaseChat Overview and Summary

In the case of Feehan v Toomey, the court was asked to consider an application for family maintenance by the granddaughter of a deceased person under Part IV of the Administration and Probate Act 1958. The deceased had no surviving spouse, children, or grandchildren who were directly dependent on him. The applicant, the deceased's granddaughter, sought maintenance on the basis of her deceased mother's relationship with the deceased, who was her father. The deceased's daughter, the applicant's mother, had predeceased the deceased, and the deceased had no other direct descendants.

The central legal issue before the court was whether the applicant was entitled to family maintenance under the Act. The court needed to determine if the applicant's mother's relationship with the deceased, coupled with the mother's predeceasement, was sufficient to establish a substantial relationship warranting maintenance. Additionally, the court had to consider whether the deceased had a responsibility to provide for the applicant, given the family circumstances.

The court found that the applicant did not have a substantial relationship with the deceased, as her mother had predeceased him and there was no evidence of a close or ongoing relationship between the applicant and the deceased. The court relied on the principles established in MacEwan Shaw v Shaw, where it was held that a substantial relationship could not be established based solely on the relationship between the deceased and the applicant's predeceased parent. Consequently, the court ruled that there was no responsibility on the deceased to provide for the applicant under the Act. The application for family maintenance was dismissed.

The court's decision was grounded in the specific statutory criteria for family maintenance and the established case law. The court determined that the applicant failed to meet the necessary threshold for a substantial relationship with the deceased, and thus, the application was unsuccessful. The court's ruling underscored the importance of a direct and ongoing familial connection in determining maintenance obligations under the Act.

Orders