| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. SCI 2009 10136
IN THE MATTER of Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the estate of HELEN GREELY, deceased
BETWEEN
| SHANE PETER GREELY & ORS | Plaintiffs |
| v | |
| BERNARD JOHN GREELY (who is sued as the executor of the will of Helen Greely (deceased)) | Defendant |
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JUDGE: | JUDD J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 16 and 17 August 2011 | |
DATE OF JUDGMENT: | 31 August 2011 | |
CASE MAY BE CITED AS: | Greely & Ors v Greely | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 416 | |
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TESTATOR’S FAMILY MAINTENANCE – Whether relevant need established – Mother (deceased) and applicant children estranged for many years – Conduct of applicants – Further provision ordered for two applicants – Administration and Probate Act 1958 (Vic) s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the First, Second and Fourth Plaintiffs | Mr S P Newton | Richmond & Bennison |
| For the Defendant | Mr R Kendall QC | Jessop & Komesaroff |
HIS HONOUR:
Introduction
This is an application by Shane Peter Greely, Susan Veronica Dee and Sharon Patricia Dutkowski under s 91 of the Administration and Probate Act 1958 for further provision out of the estate of their late mother, Helen Greely, who died on 19 April 2009.
The defendant is Bernard John Greely, a sibling of the plaintiffs and the executor and major beneficiary of the estate. The deceased made a will dated 7 November 2007 by which she gave legacies of $5,000 each to the plaintiffs and their brother Michael and to Legacy Melbourne. She left the balance of her estate to Bernard. Prior to the hearing, settlement was reached between Bernard and his brother Michael, who received the sum of $67,000, which included a contribution for his costs.
An inventory of assets and liabilities prepared by Bernard for the purpose of obtaining probate attributed a total value to the estate of $504,018.53. The estate was comprised of unencumbered real estate at 16 Ross Street Huntingdale, Victoria and some cash.
Bernard challenged the jurisdictional basis for any further provision to be made in favour of any of the plaintiffs. While acknowledging the first jurisdictional question was whether the deceased had responsibility to make provision for the plaintiffs, the defendant focussed his jurisdictional challenge to contend that the plaintiffs had not established that adequate provision had not been made. Accordingly, I understood the defendant to accept that the deceased had some responsibility, as the mother of the plaintiffs, to make provision for them, but argued that adequate provision had been made. He argued that the plaintiffs were unable to establish any real need. That, and the character and conduct of the plaintiffs became the central issues.
The plaintiffs and the deceased had been estranged for many years. That of itself was an unusual circumstance, if only because there had been a falling out between a mother and not one, but most of her children. The defendant attributed responsibility for…
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- AGLC
- Greely v Greely [2011] VSC 416
- Case
- [2011] VSC 416
- Decision Date
CaseChat Overview and Summary
The court considered whether the applicants had demonstrated a relevant need for maintenance from the deceased's estate, despite the long period of estrangement. The applicants' conduct and the nature of their relationship with the deceased were examined to assess the likelihood of their claims. Additionally, the court had to decide whether the provision for the applicants was justified under section 91 of the Administration and Probate Act 1958 (Vic). This section allows the court to make orders for the maintenance of the deceased's relatives if it considers it just and equitable to do so.
After considering the evidence and submissions, the court found that two of the applicants had established a relevant need for maintenance from the estate. The court was satisfied that their claims were not solely based on the estrangement but were grounded in actual need. Consequently, the court ordered that the estate provide further financial support for these two applicants. The court did not find that the other applicants had established a relevant need, and thus, their claims were dismissed.
The final orders of the court included provisions for the two applicants who successfully demonstrated a relevant need for maintenance from the estate. The court specified the amount and terms of the financial provision, ensuring that it was just and equitable under the circumstances. The other applicants' claims were dismissed, and no further provision was made in their favour.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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