Hansen v Hennessey (No. 2) - [2014] VSC 115

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 1753

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and –

IN THE MATTER of the will and estate of CHRISTA META ELISABET PHILLIPS (deceased)

DORIS HANSEN, KAREN HANSEN and RALF HANSEN	Plaintiffs
v
INGE HENNESSY	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2014
DATE OF RULING:	24 March 2014
CASE MAY BE CITED AS:	Hansen and ors v Hennessey (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 115

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FAMILY PROVISION — Costs — Plaintiffs jointly represented but only one of three successful — Poor quality affidavits of the plaintiffs — Defendant executor refused to mediate — Small estate and small award — Proportionality — Defendant prolonged trial by unreasonable stance on size and nature of the estate — Other conduct of defendant that increased costs of the represented plaintiffs — Defendant mixed estate funds with her own — Order against defendant personally — Administration and Probate Act 1958 s 97.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Wells	Maddens Lawyers
For the Defendant	In person

HER HONOUR:

Introduction

This judgment concerns the costs orders to be made following determination of three claims for further provision made pursuant to s 91 of Part IV of the Administration and Probate Act 1958 (“the Act”). The plaintiffs are three of the five children of the late Christa Phillips, and the defendant executor is one of the other two children. The testatrix made only minimal provision for the three plaintiffs by her last will, and after a significant bequest to her youngest child Michelle (not a party to the proceedings) and some smaller bequests, left the remainder of her estate to the defendant.

I delivered reasons for judgment on the plaintiffs’ claims on 10 February 2014 (“my Reasons”)[1]. I found that the notional net estate as at February 2014 (being the net estate after allowable expenses and deductions together with deemed interest) was only $201,352.[2] I concluded that the testatrix did not have as at the date of her death any responsibility to make provision for the maintenance of the first and second plaintiffs, Doris and Karen. I indicated I would dismiss their applications on that basis.[3] I did consider the testatrix retained a responsibility to make provision for the third plaintiff, her son Ralf, and that the provision she had made for him in her will was inadequate. I indicated that I would make an order for further provision for him in the sum of $19,000.[4] I also indicated that I would make that order personally against the defendant. The defendant was the residuary beneficiary of the estate and received the bulk of the estate in that capacity. She conceded that she had mixed the estate funds with her own funds. I also found that documents she provided had shown that she did so within six months from the grant of…

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 Hansen v Hennessey (No. 2)

Details

AGLC: Hansen v Hennessey (No. 2) [2014] VSC 115
Case: [2014] VSC 115
Decision Date: 24 March 2014

CaseChat Overview and Summary

In Hansen v Hennessey (No. 2), the dispute arose under the Family Provision Act 1969. The plaintiffs, represented by a single counsel, sought provision from the estate of their mother. The deceased's executor and defendant was her daughter, Hennessey. The case was heard in the Supreme Court of Victoria. The plaintiffs argued that they had been unfairly disadvantaged by their mother’s will and sought reasonable provision from the estate. The executor contested the claims, arguing that the will was fair and that the plaintiffs had not demonstrated any grounds for a deviation.

The court was required to determine whether the will was reasonable and fair in the context of the Family Provision Act. It also had to consider whether the plaintiffs had made out a case for a substantial deviation from the will. A further issue was the proportionality of costs awarded, given the small size of the estate and the limited success of the plaintiffs. The executor’s conduct, including refusal to mediate and mixing estate funds with her own, was also examined to determine if it warranted an order for costs against her personally.

The court found that the will was fair and reasonable, with no grounds for deviation. It did, however, consider the executor’s conduct in prolonging the trial and increasing costs. The poor quality of the plaintiffs’ affidavits and the small award also factored into the proportionality of the costs. The court held that the executor’s refusal to mediate and her mismanagement of estate funds were unreasonable and warranted an order for costs against her personally under section 97 of the Administration and Probate Act 1958. The court ordered the executor to pay a proportion of the costs, considering the small estate and the limited success of the plaintiffs.

The final orders of the court included the dismissal of the plaintiffs' claims with costs to be paid by the executor. The costs were to be assessed on an indemnity basis for the conduct found to be unreasonable, and a proportion of those costs was to be paid by the executor personally. The court's decision highlighted the importance of executors managing estates properly and engaging in reasonable conduct during litigation.

Orders