Fennessy v Fennessy - [2002] VSC 66

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7604 of 2001

RYAN JOHN RICHARD FENNESSY AND ANOTHER	Plaintiffs
v.
RICHARD HUGH JOHN FENNESSY AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 FEBRUARY 2002
DATE OF JUDGMENT:	21 MARCH 2002
CASE MAY BE CITED AS:	FENNESSY & ANOR. v. FENNESSY & ANOR
MEDIUM NEUTRAL CITATION:	[2002] VSC 66

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CATCHWORDS: Testators Family Maintenance – Application for extension of time – No arguable claim - Administration and Probate Act 1958, s.99

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr. M. Goldblatt	Aitken Walker & Strachan
For the Second Plaintiff	Mr. J. O'Bryan	Holding Redlich
For the Defendants	Mr. R.B. Phillips	Behan & Speed

HIS HONOUR:

This is an application brought by the plaintiffs against the executors of the estate of their late father pursuant to the provisions of s.99 of the Administration and Probate Act 1958 (the Act) seeking an extension of time within which to make an application to the Court that adequate provision be made for their proper maintenance and support out of the estate of the deceased.

It is trite law that applicants seeking such extensions must provide a sufficient reason explaining the delay in making the application (see Brown v. Holt[1] and Shannon v. Public Trustee[2]) and must make out an arguable case that the deceased had a responsibility to make provision for the proper maintenance and support of the applicants but failed to do so (see s.91 of the Act and Clayton v. Aust[3]).
[1][1961] VR 435
[2][1970] VR 387
[3](1993) 9 WAR 364

The determination of those matters requires some brief statement of the background to the matter, all the more so as the case put forward on behalf of one of the plaintiffs is quite different from the case put forward on behalf of the other.

At some unspecified time but prior to February 1978 the deceased Raymond Thomas Fennessy commenced a de facto relationship with Joanne Thompson. At that time the deceased was employed as a ship's steward by the Trans Tasman Line. The parties lived together in a Ministry of Housing flat in Port Melbourne.

On 27 February 1978 the first plaintiff Ryan John Richard Fennessy (Ryan) was born.

Ryan is now aged 24 and is a ship's steward earning a gross salary of $48,000 per annum.

In 1988 the second plaintiff Teagan Aliesha Fennessy (Teagan) was born.

Teagan is now aged almost 14 and attends the Academy of Mary Immaculate School in North Fitzroy.

Both Ryan and Teagan live with their mother in the Ministry of Housing flat in Port Melbourne. Ms. Thompson works on a permanent part–time basis as a customer service assistant for the TAB at the Elsternwick Hotel earning a gross income of $22,861.41 per year.

On some unspecified date the deceased purchased a property at 56 Charlotte Street, Newport. According to Ryan the property was initially purchased as an investment but with…

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 Fennessy v Fennessy

Details

AGLC: Fennessy v Fennessy [2002] VSC 66
Case: [2002] VSC 66
Decision Date: 21 March 2002

CaseChat Overview and Summary

The case of Fennessy v Fennessy involved a dispute between the children of the deceased, who sought to challenge the will on the basis of inadequate provision for their maintenance. The application was brought in the Supreme Court of Victoria under the Administration and Probate Act 1958. The court was required to determine whether the children had an arguable claim for inadequate provision for their maintenance and if the application for an extension of time to bring the proceedings was justified.

The legal issues before the court included whether the children's application for an extension of time to commence the proceedings was valid under section 99 of the Administration and Probate Act 1958, and whether the children had an arguable claim for inadequate maintenance under the Wills Act 1970. The court had to consider the relevant statutory provisions and case law to determine the merits of the application.

In its decision, the court found that the application for an extension of time was not valid because the children did not have an arguable claim for inadequate maintenance. The court held that the provisions made in the will were reasonable and that the children had not established a prima facie case for inadequate maintenance. The court also noted that the application was brought well beyond the statutory time limits, and there were no exceptional circumstances that warranted an extension of time. The court dismissed the application and awarded costs against the children.

The court made orders dismissing the application for an extension of time and for the children to pay the respondent's costs of the application.

Orders