Hunt v Black

[2016] VSC 59

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATOR’S FAMILY MAINTENANCE LIST

SCI 2013 6497

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

and

IN THE MATTER of the Will and Estate of John Niel Black (deceased)

MADILYN JAYNE HUNT (by her litigation guardian Kathryn Jane Hunt)	Plaintiff
v
EVE MARIE BLACK (in the Will called EVE MARIE CUMMING) & ORS	Defendants

SCI 2013 6500

CARL GERARD HUNT	Plaintiff
v
EVE MARIE BLACK (in the Will called EVE MARIE CUMMING) & ORS	Defendants

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JUDGE:	Cameron J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 - 24 September 2015
DATE OF JUDGMENT:	26 February 2016
CASE MAY BE CITED AS:	Hunt v Black & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 59

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TESTATOR’S FAMILY MAINTENANCE – Application by adult stepson for further provision – Whether deceased’s responsibility to adult stepson discharged – Further provision ordered – Extent of provision – Administration and Probate Act 1958, s 91.

TESTATOR’S FAMILY MAINTENANCE – Application by underage disabled step grandchild for further provision – Whether deceased had responsibility to provide for underage step grandchild – Where deceased contemplated setting up a trust for step grandchild – Where trust was not established – Further provision denied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Gillies	John Keating Associates
For the Defendant	Mr P. Crofts	Taits Legal

HER HONOUR:

Introduction

1. John Niel Black was a dairy farmer.  He died in an accident on his farm on 4 November 2012.  Throughout the proceedings, Mr Black was referred to as ‘Niel’ and, without any disrespect to him or his family, I propose to refer to him in that fashion in this judgment.

1. Niel married his first wife, Josie, in 1981.  Josie had been married before she married Niel.  Josie had three sons from that first marriage.  Josie died and Niel married again.

1. Carl Gerard Hunt (‘Carl’) is Josie’s youngest son, so he was Niel’s stepson.

1. Madilyn Jayne Hunt (‘Madilyn’) is Carl’s daughter, so Niel’s step granddaughter.

1. Niel married his first wife, Josie, in 1981, when he was aged 43 years.  It was his first marriage.  Josie had three sons from her first marriage, Martin Simon Hunt (‘Simon’), Marcus Michael Hunt (‘Marcus’) and Carl.  Josie died on 11 September 2009, after a battle with cancer.

1. In 2011, Niel married his second wife, Eve Black (‘Eve’), for whom it has been conceded that adequate provision has been made in Niel’s will.  Niel and Eve did not have any children and Eve makes no claim on the estate.

1. Carl and Madilyn (by her litigation guardian) are plaintiffs in the two proceedings before this Court.

1. Probate over Niel’s will (which was dated 25 February 2011) was granted by this Court on 23 July 2013.  Probate was granted to Niel’s second wife, Eve, his accountant, Anthony Davis, and his stepson, Simon, (who was Niel’s first wife’s son and the brother of Carl).  It was common ground that the estate has a…