| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 9355 of 2003
| RENATA IWASIVKA | Plaintiff |
| v | |
| STATE TRUSTEES LIMITED (WHO IS SUED AS THE ADMINISTRATOR OF THE ESTATE OF JULIE HASEK, DECEASED) | Defendant |
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JUDGE: | Hansen J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2005 | |
DATE OF JUDGMENT: | 18 August 2005 | |
CASE MAY BE CITED AS: | Iwasivka v State Trustees Ltd | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 323 | |
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Testator’s family maintenance – Intestacy - Application by niece by marriage of deceased –Whether responsibility to make provision – Administration and Probate Act 1958 s 91.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R B Phillips | Birdsey Dedman & Bartlett |
| For the Defendant | Mr S F McNab | Aitken Walker & Strachan |
HIS HONOUR:
In this case the plaintiff, a 47 year old woman in ill health and parlous financial circumstances, seeks provision out of the estate of her aunt by marriage Julie Hasek, deceased (“the deceased”), pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”).
The Act
The plaintiff is enabled to make her claim by the 1997 amendments[1] to Part IV which empower the Court to:
“order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.”[2]
[1]The amendments were made by the Wills Act 1997 which came into operation on 20 July 1998.
[2]Section 91(1).
The amendments abolished the former approach, traditional in such legislation in Australia and New Zealand, of defining and thereby limiting, those who may apply under Part IV by reference to their relationship to the deceased, as for example in Victoria, widow, widower or children. The requirement of the Act now being that the deceased had responsibility to make provision for the proper maintenance and support of “a person”, without a requirement that the person be related by blood or even by marriage to the deceased, means that the present applicant, a niece by marriage, is enabled to apply.
Section 91 is the critical section. It directs attention to three stages or issues which the Court must address:
(a)First, whether the deceased had responsibility to make provision for the proper maintenance and support of the applicant[3];
(b)Secondly, whether the distribution of the estate of the deceased does not make adequate provision for the proper maintenance and support of the applicant[4]; and
(c)Thirdly, the amount of the provision (if any) which the Court may order.
In determining each of these issues, and as to any other matter related to an application for an order, the Court “must have regard to” a series of matters specified in s 91(4)(e) to (p).
[3]Section 91(1).
[4]Section 91(3).
As in the present case the deceased died intestate, the question at the second stage is whether the distribution of her estate effected by the intestacy provisions of the Act[5], do not make adequate provision for the proper maintenance and support…
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- AGLC
- Iwasivka v State Trustees Ltd [2005] VSC 323
- Case
- [2005] VSC 323
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the executor, State Trustees Ltd, was obligated to provide for the applicant’s maintenance under the Act. This required the court to consider the statutory provisions and whether the applicant qualified as a person for whose maintenance the testator had a responsibility. The court examined the relevant sections of the Act, including the definitions of family and the circumstances in which the court may require the executor to provide for maintenance.
The court found that the applicant did not qualify as a person for whose maintenance the testator had a responsibility. The court concluded that the applicant, as a niece by marriage, did not fall within the definition of family under the Act. As a result, the executor had no legal obligation to provide for her maintenance. The court dismissed the applicant’s application, holding that the executor was not required to make any provision for her.
The court’s decision was based on a strict interpretation of the statutory provisions and the definitions provided within the Act. The court did not find any circumstances that would extend the responsibility to the applicant beyond the statutory definitions. The court made no order in favour of the applicant and dismissed the application.
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