JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATES OF HEARING:	2 and 3 August 2005
DATE OF JUDGMENT:	8 September 2005
CASE MAY BE CITED AS:	Herszlikowicz v Czarny
MEDIUM NEUTRAL CITATION:	[2005] VSC 354

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Testator’s Family Maintenance – application by 59 year old son – whether plaintiff a person for whom testator has responsibility to make provision – relevance of character and conduct of the plaintiff – plaintiff’s need caused by his own conduct – Administration and Probate Act 1958 (Vic), s. 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.B. Phillips	Patricia Duke
For the Defendant	Mr R.C. Wells	Dibbs Abbott Stillman

TABLE OF CONTENTS

Introduction.................................................................................................................................... 1

Facts..................................................................................................................................................... 1

The Deceased.................................................................................................................................... 1
Rachel Herszlikowicz....................................................................................................................... 3
The plaintiff...................................................................................................................................... 4
Sally Lust......................................................................................................................................... 8
Rachel Herszlikowicz’s death........................................................................................................... 9
The Will......................................................................................................................................... 10
Events leading up to the death of the deceased.............................................................................. 11
The deceased’s relationship with his children................................................................................ 11
Position of Sally Lust at the death of the deceased......................................................................... 15
Position of the plaintiff at the death of the deceased...................................................................... 15
The assets of the estate................................................................................................................... 16
The financial position of plaintiff if the will is given effect............................................................ 18
The financial position of Sally Lust if the will is given effect........................................................ 20
The financial position of Adam Lust if the will is given effect..................................................... 22
The financial position of Mark Lust.............................................................................................. 22

Applicable Law................................................................................................................................ 23

General principles.......................................................................................................................... 23
Particular issues relevant to this case............................................................................................ 29
Jurisdictional requirements met in this case.................................................................................. 32

Section 91 Matters........................................................................................................................ 33

Paragraph 91(4)(e): family or other relationship.......................................................................... 33
Paragraph 91(4)(f): obligations and responsibilities of the deceased............................................ 33
Paragraph 91(4)(g): size and nature of the estate......................................................................... 33
Paragraph 91(4)(h)(i) and (j): financial resources, state of health and age.................................. 34
Paragraph 91(4)(k): contributions to building up the estate or to the welfare of the deceased..... 34
Paragraph 91(4)(l): benefits previously given to the plaintiff and other beneficiaries................. 35
Paragraph 91(4)(m): whether the plaintiff was being maintained by the deceased...................... 36
Paragraph 91(4)(n): liability of others to maintain the plaintiff.................................................. 36
Paragraph 91(4)(o): character and conduct of the plaintiff.......................................................... 36
Paragraph 91(4)(p): other matters considered to be relevant....................................................... 39

What order should be made?..................................................................................................... 40

Form of Trust.................................................................................................................................. 43

HIS HONOUR:

Introduction

In this proceeding the plaintiff, Morris Herszlikowicz, seeks an order under s. 91(1) of the Administration and Probate Act 1958 (“the Act”) that further provision be made out of the estate of his late father for his…

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 Herszlikowicz v Czarny

Details

AGLC: Herszlikowicz v Czarny [2005] VSC 354
Case: [2005] VSC 354
Decision Date: 8 September 2005

CaseChat Overview and Summary

The case of Herszlikowicz v Czarny involves a dispute over the interpretation of a will. The plaintiff, a 59-year-old son, sought maintenance from the estate of his deceased father, the testator. The dispute centred on whether the son was a person for whom the testator had a responsibility to make provision, as per the Administration and Probate Act 1958 (Vic), section 91. The defendant, the administrator of the estate, opposed the son's application, arguing that the son's need for maintenance was caused by his own conduct and character.

The primary legal issue before the court was whether the son's conduct and character, which led to his need for maintenance, could negate his status as a person for whom the testator had a responsibility to make provision. The court had to determine whether the statutory provision for maintenance under the Act could be exercised in cases where the applicant's need was self-inflicted. Additionally, the court had to interpret the phrase "a person for whom the testator has a responsibility to make provision" and decide if this included individuals whose circumstances were a result of their own actions.

The court examined the statutory language and relevant case law to determine the scope of section 91 of the Act. It found that the provision for maintenance was intended to ensure that dependents of the testator were provided for, but it did not mandate that the court disregard the applicant's conduct and character. The court concluded that while the son's conduct and character were relevant considerations, they did not automatically disqualify him from receiving maintenance. The court held that the testator's responsibility to make provision for the son did not disappear merely because the son's need was influenced by his own actions.

The court ultimately determined that the son was entitled to maintenance from the estate, as the testator had a responsibility to provide for his dependents, including his son. The court found that the statutory provision for maintenance was not limited to situations where the applicant's need was solely due to circumstances beyond their control. The court's decision underscored the importance of considering the overall relationship between the testator and the applicant, as well as the testator's intentions, when determining maintenance under the Act.

Orders