Fennessy v Fennessy

Case [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

---

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

---

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

---

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:

  1. 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.

  1. 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

  1. 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.

  1. 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.

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

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

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

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

  1. 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.

  1. 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…

Continue reading Fennessy v Fennessy

Sign in free to access the full text

Details
AGLC
Fennessy v Fennessy [2002] VSC 66
Case
[2002] VSC 66
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.