Gasior v State Trustees Ltd
[1998] VSC 54
•7 September 1998
SUPREME COURT OF VICTORIA
PRACTICE COURT JURISDICTION
Not Restricted
No. 1156 of 1998
| FRANK GASIOR AND RICHARD JOHN WILLIAM GASIOR | Plaintiffs |
| v. | |
| STATE TRUSTEES LIMITED | Defendant |
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| JUDGE: | BEACH, J. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 AUGUST 1998 |
| DATE OF JUDGMENT: | 7 SEPTEMBER 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSC 54 |
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CATCHWORDS: Administration and Probate Act 1958, ss.91 and 99AA - Amendment by Wills Act 1997, s.55 - Effect of transitional provisions.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr. R. Cook | Felthams |
| For the Defendant | Mr. R. Boaden | Legal Branch, State Trustees Limited |
HIS HONOUR:
Edward Dudek died on 10 December 1997 leaving no next of kin. On 18 February 1998 Letters of Administration of his estate were granted to the State Trustees Ltd. On 28 July 1998 Frank Gasior and Richard John William Gasior filed an originating motion in the Court whereby they seek that provision for their proper maintenance and support be made out of the estate of the deceased. For present purposes it is sufficient to note that the deceased had been a close friend of the Gasiors and had lived with one or other of the Gasiors for many years, first in Melbourne and more recently in Shepparton. It is said that during that time the Gasiors attended to the welfare of the deceased thereby enabling the deceased to build up his estate.
On 18 August 1998 Master Wheeler ordered that the following question be tried before the trial of the proceeding:
"Do the plaintiffs have standing pursuant to Part IV of the Administration and Probate Act 1958 to bring the present proceeding given:
(a) that the deceased died on 10 December 1997; and
(b) that they are not a widow, widower or child of the deceased?"
Prior to 20 July 1998 s.91 of the Administration and Probate Act 1958 read:
"91. Maintenance and support of widow etc. Notwithstanding anything in this Act to the contrary where after the commencement of the Administration and Probate (Family Provision) Act 1962 any person (hereafter in this Part called 'the deceased') dies, and the distribution of his estate effected by his will (if any), or by the operation of the provisions of Division 6 of Part 1 of this Act or both by his will and the operation of the said provisions is such as not to make adequate provision for the proper maintenance and support of the deceased's widow widower or children the Court may, on application by or on behalf of the said widow widower or children, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children.
For the purposes of this section 'widow' includes any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to an order of any court or otherwise."
It is clear that under that section the only persons who had standing to make a claim against the estate of a deceased were a spouse or a child.
By s.55 of the Wills Act 1997 a new s.91 was introduced into the Administration and Probate Act. The section reads:
"91. Power of the Court to make maintenance order (1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. (2) The Court must not make an order under sub-section (1) in
favour of a person unless -
(a) that person has applied for the order; or (b) another person has applied for the order on behalf of that person. (3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person affected by -
(a) his or her will (if any); or (b) the operation of the provisions of Part 1, Division 6; or (c) both the will and the operation of the provisions - does not make adequate provision for the proper maintenance
and support of the person.(4) The Court in determining -
(a) whether or not the deceased had responsibility to make provision for a person; and (b) whether or not the distribution of the estate of the deceased person as affected by - (i) the deceased's will; or
(ii) the operation of the provisions of Part 1, Division 6; or
(iii) both the will and the operation of the provisions -
makes adequate provision for the proper maintenance
and support of the person; and
(c) the amount of provision (if any) which the Court may order for the person; and
(d) any other matter related to an application for an order under sub-section (1) -
must have regard to -
(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant."
Division 6 of Part I of the Act deals with the distribution of a deceased's residuary estate.
The new s.91 came into operation on 20 July 1998. Under the new section any person who falls into the category of a person in respect of whom the deceased "had responsibility to make provision" can now make a claim against the estate of a deceased.
The transitional provisions governing the introduction of the new rules relating to Part IV applications appear in s.99AA of the Administration and Probate Act. That section was introduced into the Act by the Miscellaneous Acts (Omnibus No. 1) Act
1998. Section 99AA reads: "99AA. Transitional provision - Wills Act 1997
Despite the amendment of this Act by Part 7 of the Wills Act 1997,
Part IV of this Act, as in force immediately before the
commencement of Part 7 of the Wills Act 1997, continues to apply to
the estate of a person who has died before that commencement."
Section 99AA also came into operation on 20 July 1998.
It is argued on behalf of the plaintiffs that as s.91 of the Administration and Probate Act is operational today, subject to any other provisions of the Act, an application under it may be made by any person who falls into the category of a person in respect of whom the deceased "had responsibility to make provision".
I am unable to accept that proposition. In my opinion the provisions of s.99AA of the Act make it clear that in the case of the estates of persons who died before 20 July 1998 the applicable law is that in force prior to that date. The new and extended provisions only apply to the estates of persons who died on or after 20 July 1998. In that situation the plaintiffs have no standing to make the present application. The answers to questions (a) and (b) therefore are No.
I order that the proceeding be dismissed with costs to be taxed including reserved costs and paid by the plaintiffs.
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