Francis v Martin - [2024] VSC 340

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 04842

BETWEEN:

LOUISE ELLEN FRANCIS	Plaintiff
v
PAUL JARVIS MARTIN (who is sued as executor of the Will of JOHN KENDALL FRANCIS & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2024, further written submissions filed on 31 May 2024 and 11 June 2024
DATE OF JUDGMENT:	20 June 2024
CASE MAY BE CITED AS:	Francis v Martin
MEDIUM NEUTRAL CITATION:	[2024] VSC 340

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TESTATOR’S FAMILY MAINTENANCE — Plaintiff is the beneficiary of a discretionary trust created by the will of her late father having previously inherited considerable assets from her late mother — Application by plaintiff for a family provision order seeking that her entitlements under the estate vest absolutely in her —Application by the defendants for summary judgment — Whether plaintiff’s claim has any real prospects of success — Plaintiff is the adult daughter of the deceased — Plaintiff failed to frankly and fulsomely disclose her financial position and the available evidence establishes she has substantial assets — Claim has no real prospects of success because she has no real prospects of establishing that the will failed to make adequate provision for her proper maintenance and support — Summary judgment granted — Civil Procedure Act 2010 (Vic) ss 62, 63 and 64 — Administration and Probate Act 1958 (Vic), Part IV.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the First and Second Defendants	Mr R Wells of counsel	Hicks Oakley Chessell Williams Pty Ltd
For the Third Defendant	Mr T Staindl of counsel	Keogh & Co

HER HONOUR:

Introduction and background

The plaintiff, Ms Louise Francis, is a single woman of 66 years of age. She is not in the labour force, largely owing to some debilitating health issues. Arguably, she is quite a wealthy woman, having inherited substantial assets from her late mother, Dorothy Francis (‘Dorothy’), who died in 2015. Nevertheless, Ms Francis (‘Louise’)[1] has brought a claim under Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’) against the executors of the estate of her late father, Mr John Kendall Francis (‘executors’).
[1]Given the commonality of surnames of the parties, first names are used in these reasons. No disrespect is intended.

Mr Francis, a retired surgeon (‘deceased’) was also a wealthy man. He died in November 2020, and left an estate valued by the executors as at March 2023 at $7,871,612.63. Probate of the deceased’s last will dated 14 December 2017 (‘will’) was granted on 23 June 2021. The estate includes a property in East Melbourne valued at $4,800,000, with the balance of approximately $3,000,000 held in cash and shares. The estate has estimated liabilities of approximately $500,000, with the primary creditor being the Australian Taxation Office.

The will provided, among other things, that the deceased’s partner, a lady now entering her nineties, holds a life interest in the East…

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 Francis v Martin

Details

AGLC: Francis v Martin [2024] VSC 340
Case: [2024] VSC 340
Decision Date: 20 June 2024

CaseChat Overview and Summary

The case of Francis v Martin involved the plaintiff, who sought a family provision order under the Administration and Probate Act 1958 (Vic) against the executors of her late father’s estate. The plaintiff, a beneficiary under a discretionary trust created by her father’s will, argued that the estate failed to make adequate provision for her proper maintenance and support. The defendants applied for summary judgment, asserting that the plaintiff's claim had no real prospects of success due to her undisclosed substantial assets.

The central legal issue before the court was whether the plaintiff's claim for a family provision order had any real prospects of success, considering she had not fully disclosed her financial situation and had significant assets. The court needed to determine whether the plaintiff could establish that the will failed to make adequate provision for her proper maintenance and support, given her undisclosed substantial assets. The court also had to consider the statutory framework under the Civil Procedure Act 2010 (Vic) and the relevant provisions of the Administration and Probate Act 1958 (Vic).

The court found that the plaintiff had failed to frankly and fulsomely disclose her financial position, and the available evidence indicated she possessed substantial assets. Given this, the court concluded that the plaintiff had no real prospects of establishing that the will failed to make adequate provision for her proper maintenance and support. The court granted the defendants' application for summary judgment under sections 62, 63, and 64 of the Civil Procedure Act 2010 (Vic). Consequently, the plaintiff's claim was dismissed, and the court ruled in favour of the defendants.

Orders