IMO Will and Codicil of Griffiths (deceased)

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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:

  1. 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. 

  1. 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.

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

  1. 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

  1. 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…

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Details
Case
[2012] VSC 85
Decision Date

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.

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