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Iwasivka v State Trustees Ltd

Iwasivka v State Trustees Ltd

Case [2005] VSC 323 18 August 2005

Intestacy

Family Provision

Responsibility to Make Provision

Succession Law

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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…

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 Iwasivka v State Trustees Ltd

Details

AGLC: Iwasivka v State Trustees Ltd [2005] VSC 323
Case: [2005] VSC 323
Decision Date: 18 August 2005

CaseChat Overview and Summary

The case of Iwasivka v State Trustees Ltd concerned the estate of a deceased who died intestate, leaving no will. The applicant, a niece by marriage of the deceased, sought an order under section 91 of the Administration and Probate Act 1958 to require the executor to make provision for her maintenance. The court had to determine whether the executor had a legal responsibility to provide for the applicant’s maintenance under the relevant statutory provisions.

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.

Orders