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Greely v Greely

Greely v Greely

Case [2011] VSC 416 31 August 2011

Testator’s Family Maintenance

Administration and Probate Act 1958 (Vic)

Succession Law

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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…

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 Greely v Greely

Details

AGLC: Greely v Greely [2011] VSC 416
Case: [2011] VSC 416
Decision Date: 31 August 2011

CaseChat Overview and Summary

In the case of Greely v Greely, the matter was heard in the Supreme Court of Victoria, where the applicants sought financial provision under the Administration and Probate Act 1958 (Vic). The deceased, who had been estranged from the applicants for many years, was the mother of the two applicants. The applicants argued that they were entitled to maintenance from the estate of the deceased, asserting that they had a relevant need for such provision. The court was tasked with determining whether the applicants had established the necessary relevant need for maintenance and if so, to what extent the estate should provide for them.

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