IMO Will and Codicil of Griffiths (deceased) - [2012] VSC 85

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 04926

IN THE MATTER OF PART IV of the Administration and Probate Act 1958

- and –

IN THE MATTER OF the Will and Codicil of Nancy Mary Griffiths (deceased)

B E T W E E N

CORRINE MARY COLVILLE	Plaintiff
v
STEPHEN BRUCE EDMUNDS	First Defendant
- and -
RAYMOND JOHN WILLIS	Second Defendant
- and -
ST VINCENT DE PAUL SOCIETY OF VICTORIA INC	Third Defendant

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JUDGE:	Randall AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2011
DATE OF JUDGMENT:	9 March 2012
CASE MAY BE CITED AS:	IMO Will and Codicil of Griffiths (deceased)
MEDIUM NEUTRAL CITATION:	[2012] VSC 85

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TESTATOR’S FAMILY MAINTENANCE – Summary judgment application by third defendant – Third defendant is the sole residual beneficiary under the deceased’s last will – Plaintiff is the niece of the deceased – Whether or not deceased had a responsibility to make provision for plaintiff – Relationship between deceased and plaintiff – Deceased made provision for plaintiff in the form of legacies in prior wills – Plaintiff’s application has more than a fanciful prospect of success – Administration and Probate Act 1958 s 91, Civil Procedure Act 2011 s 67

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R T A Waddell	Dr P Duke, Lawyer
For the First and Second Defendants	Mr S F McNab	Willis Simmonds Legal Practitioners
For the Third Defendant	Mr A J Verspaandonk	Moores Legal

HIS HONOUR:

The plaintiff is the niece of the late Nancy Mary Griffiths (“the deceased”). The deceased died on 15 October 2009. The plaintiff has made a claim for relief pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”) for an order that proper provision for the plaintiff’s proper maintenance and support be made out of the estate of the deceased.

The third defendant, St Vincent de Paul Society of Victoria Inc, filed a summons on 10 June 2011 seeking, inter alia, the following relief:

1.That pursuant to Rule 23.01(1) … and ss 62 and 63 of the Civil Procedure Act 2010 there be summary judgment for the defendants in the proceeding on the ground that the plaintiff’s claim has no real prospect of success.
2.Alternatively, that pursuant to Rule 23.03 … and ss 62 and 63 of the Civil Procedure Act 2010 there be summary judgment for the defendants in the proceeding on the ground that the plaintiff’s claim has no real prospect of success.

The third defendant is the sole residuary beneficiary under the deceased’s last will.

The first and second defendants are the executors. By affidavit of Raymond John Willis sworn 23 June 2011, the first and second defendants supported the third defendant’s application made by summons.

Administration and Probate Act 1958

The power to make a maintenance order under Part IV is set out in s 91. The Court has power to make an order for provision of an applicant…

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.

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Details

Case: [2012] VSC 85
Decision Date: 9 March 2012

CaseChat Overview and Summary

The plaintiff in this case, the niece of the deceased, sought to challenge the validity of the deceased's last will and codicil on the basis that it did not adequately provide for her maintenance. The third defendant, the sole residual beneficiary, applied for summary judgment to dismiss the plaintiff's claim. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the deceased had a responsibility to make provision for the plaintiff in his last will and codicil, and whether the relationship between the deceased and the plaintiff warranted such provision. The court also needed to consider whether the deceased had previously made provision for the plaintiff through legacies in prior wills, and whether the plaintiff's application had more than a fanciful prospect of success.

The court found that the deceased had made provision for the plaintiff in prior wills, but that the plaintiff's application had more than a fanciful prospect of success. The court noted that under the Administration and Probate Act 1958, a testator is not obliged to provide for their family's maintenance, but that the court may consider the relationship between the testator and the claimant when determining whether the will adequately provides for the claimant's maintenance. The court found that the relationship between the deceased and the plaintiff was not close enough to warrant provision in the last will and codicil, and that the plaintiff's application was therefore unlikely to succeed. The court granted the third defendant's application for summary judgment.

The court ordered that the plaintiff's claim be dismissed with costs to be paid by the plaintiff.

Orders