Horsburgh v White - [2006] VSC 300

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5728 of 2003

SUSAN ELIZABETH HORSBURGH	Plaintiff
v
MAURICE LESLIE WHITE AND RUTH ELIZABETH WHITE	Defendants

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 and 24 October 2005
DATE OF JUDGMENT:	10 August 2006
CASE MAY BE CITED AS:	Horsburgh v White
MEDIUM NEUTRAL CITATION:	[2006] VSC 300

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Family provision – Adult daughter – Administration & Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Verspaandonk	Maddens Lawyers
For the Defendants	Mr P.H. Barton	Wards

HIS HONOUR:

This is an application by an adult daughter for an order for provision for her proper maintenance and support out of the estate of her father Robert Lesley White deceased pursuant to s 91 of the Administration and Probate Act 1958 (“the Act”).

The deceased died on 6 September 2002 aged 93 years. At the time of his death he resided at Paynesville Private Nursing Home, Kings Road, Paynesville.

The deceased married Mabel Elizabeth White on 1 July 1933. She predeceased him having died on 5 February 1999 aged 84 years.

Four children were born of the marriage, namely:

(a)Maurice Leslie White and Robert Worgan White, who are twins, were born on 13 September 1935,
(b)Geoffrey James White, who was born on 8 April 1944, and
(c)Susan Elizabeth Horsburgh, the plaintiff, who was born on 24 April 1952.

I shall refer to them and other parties by their first name. Robert survived the deceased but died in 2003.

The deceased left a will dated 23 March 1999. Probate of the will was granted to Maurice, Susan, and Maurice’s wife Ruth Elizabeth White, the executors appointed by the will, on 21 March 2003.

The originating motion by which this proceeding was commenced was filed on 8 May 2003. The defendants in the proceeding are Maurice and Ruth as executors of the deceased’s estate.

Sometime later in 2003 Geoffrey commenced an application for provision out of the estate of the deceased, in proceeding 7737 of 2003, which a Master ordered be heard together with Susan’s proceeding. I was told that Geoffrey settled his case on the basis that he withdrew his claim and each side paid their own costs, and with no payment being made to Geoffrey.

As set out in the inventory of assets and liabilities lodged with the application for probate, the deceased died possessed of the following assets, namely:

(a)his farm property being Lot 2 on Plan of Subdivision No. 140105
and being comprised in certificate of title volume 9470 folio 497 $250,000.00
(b)Bank of Melbourne account $24,110.98
$274,110.98

There were no liabilities. The farm property was located at 180 Bengworden Road, Bairnsdale.
The will

By his will the deceased left his estate, after payment of funeral and testamentary expenses, debts and duties, on trust for Susan’s three children Travis Horsburgh, Lauren Horsburgh and Zara Horsburgh “equally absolutely”. In the will Zara is incorrectly referred to as…

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 Horsburgh v White

Details

AGLC: Horsburgh v White [2006] VSC 300
Case: [2006] VSC 300
Decision Date: 10 August 2006

CaseChat Overview and Summary

The case of Horsburgh v White involved a dispute over the estate of a deceased individual, where an adult daughter sought a family provision order under the Administration and Probate Act 1958, section 91. The daughter claimed that she was not adequately provided for in the deceased's will and sought an order to rectify the situation. The primary legal issues revolved around the interpretation of the term "reasonable financial provision" under the Act, and whether the deceased's actions in leaving the daughter out of the will constituted an unreasonable failure to make provision for her.

The court considered the statutory criteria for a family provision order, including whether the deceased had made reasonable financial provision for the daughter, and whether there was any other reason that justice required the order to be made. The court evaluated the evidence presented regarding the deceased's financial situation, the daughter's needs, and the reasons for the provisions made in the will. It also examined the applicable principles and precedents concerning family provision claims, particularly those involving adult children.

In its reasoning, the court found that the deceased had not made reasonable financial provision for the daughter, considering the daughter's needs and the deceased's ability to provide. The court noted that the deceased had substantial assets and had made provision for other family members, which further supported the daughter's claim. The court concluded that justice required a family provision order to be made in the daughter's favour. The specific financial details of the order were left to be determined in further proceedings.

The court ordered that the daughter be provided with reasonable financial provision from the deceased's estate, and directed that further proceedings be held to determine the precise amount and form of that provision. The decision underscored the importance of the court's discretion in assessing the individual circumstances of each case and the need to balance the deceased's intentions with the statutory requirements for family provision.

Orders