JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	14-15 May 2019
DATE OF JUDGMENT:	7 June 2019
CASE MAY BE CITED AS:	Firth v Reeves
MEDIUM NEUTRAL CITATION:	[2019] VSC 357

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FAMILY PROVISION AND MAINTENANCE — Application by adult daughter for further provision — Whether provision of one third of estate was failure by testator to make adequate provision for the proper maintenance and support of the plaintiff — Where estate substantial — Adequate provision for proper maintenance and support provided — Application dismissed — Administration and Probate Act 1958 (Vic) s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Black	Willerby’s
For the Defendant	Ms U Stanisich	McCracken & McCracken Lawyers

HIS HONOUR:

The deceased died on 20 August 2017. She was survived by two daughters, Roseann (the plaintiff), and Glenda (the first defendant). The second defendant was the deceased’s solicitor, and is an executor of the deceased’s estate. The deceased made her last will on 28 October 2008 (‘the Will’).

Probate of the Will was granted to the defendants on 1 November 2017. The Will:

(a) appointed the defendants to be executors of the Will and trustees of the estate;

(b) devised the entire estate to the trustees on trust for sale and to divide the net proceeds of sale into three equal parts;

(c) paid or transferred two parts to Glenda for her own use and benefit absolutely; and

(d) paid or transferred one part to Roseann for her own use and benefit absolutely.

Roseann made application for further provision from the estate.

It was not in dispute that Roseann is a child of the deceased and an eligible person in accordance with s 90 of the Administration and Probate Act 1958 (Vic) (‘the Act’) or that the deceased had a moral duty to provide for Roseann’s proper maintenance and support as set out in s 91(c) of the Act.

The issues to be determined in this proceeding were:

(a) whether the provision for Roseann under the Will failed to make adequate provision for her proper maintenance and support; and

(b) if so, the degree to which further provision ought be made to Roseann from the estate for her proper maintenance and support.

The evidence

Evidence was received by tendered affidavits and only the plaintiff and the first defendant were cross-examined.

The plaintiff relied on the following affidavits:

(a) Roseann Firth sworn 23 March 2018 and 12 October 2018;

(b) Graeme Leslie Firth sworn 12 October 2018. Mr Firth gave some limited oral evidence updating his financial position and that of his company; and

(c) Lindy Michelle Powell sworn 12 October 2018.

The defendants relied on the following affidavits:

(a) Glenda Mary Reeves sworn 21 June 2018; and

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 Firth v Reeves

Details

AGLC: Firth v Reeves [2019] VSC 357
Case: [2019] VSC 357
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the case of Firth v Reeves, the court dealt with an application by an adult daughter, seeking additional provision from her father's estate. The dispute centred on whether the father had failed to make adequate provision for her proper maintenance and support, given that she received only one third of the estate. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the provision made by the father was adequate under the Administration and Probate Act 1958 (Vic) and whether the estate was substantial enough to warrant further provision. The court had to determine if the daughter had demonstrated that the one third provision was insufficient for her maintenance and support.

In delivering the judgment, the court considered the overall value of the estate and the financial circumstances of the daughter. It was found that the father had indeed made adequate provision for her proper maintenance and support, given the substantial nature of the estate and the financial resources available to the daughter. The court concluded that the daughter had not satisfied the criteria necessary to justify an increase in her provision. Consequently, the application was dismissed.

The court ordered that the existing provisions in the will stand and that no further financial provision would be made to the daughter. The decision underscores the importance of considering the entirety of the estate and the individual circumstances of the applicant when assessing claims under the Family Provision Act.

Orders