BRADLEY PAUL JENSEN and STUART ANTHONY JENSEN	Plaintiffs
- and -
PAUL JENSEN and CHERYL BROWN (who are sued as the Executors of the Will of DOROTHY ETHEL GILMORE deceased)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2014
DATE OF JUDGMENT:	9 September 2014
CASE MAY BE CITED AS:	Jensen v Jensen
MEDIUM NEUTRAL CITATION:	[2014] VSC 432

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ADMINISTRATION AND PROBATE — Testator’s family maintenance — Deceased a widow with no children or dependants — Claims by testator’s great nephews — Whether deceased had responsibility to make provision — Whether claims for further provision have no real prospects of success — Whether appropriate for summary dismissal — Whether dispute is of such a nature that only a full hearing on the merits is appropriate and it is not in the interests of justice to dismiss the application without a full hearing — Application refused — Administration and Probate Act 1958 (Vic), s 91 — Civil Procedure Act 2010 (Vic), Part 4.4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms AS Bartfeld	Russo Pellicano Carlei Lawyers
For the Defendants	Mr Graham A Devries	Mahons, with Yuncken & Yuncken Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Affidavit material............................................................................................................................... 2

Applicable Law................................................................................................................................... 2

Evidence supporting the claims...................................................................................................... 2

Submissions........................................................................................................................................ 5

Defendants’ Submissions............................................................................................................. 5
Plaintiffs’ submissions................................................................................................................. 9

Consideration.................................................................................................................................... 14

A normal Aunt – Nephew relationship................................................................................... 17
Relevant Factors.......................................................................................................................... 18
Dorothy’s appreciation of the value of the estate......................................................... 18
The size of the estate......................................................................................................... 19
The competing claims....................................................................................................... 19
The plaintiffs’ needs.......................................................................................................... 20

Conclusion......................................................................................................................................... 20

SCHEDULE....................................................................................................................................... 21

Applicable law.................................................................................................................................. 21

Summary Judgment test............................................................................................................. 21
Family provision legislation..................................................................................................... 23
The Legislation and General Principles......................................................................... 23
The First Stage....................................................................................................... 26
The Second Stage.................................................................................................. 27
The Third Stage..................................................................................................... 30

HIS HONOUR:

Introduction

The plaintiffs are the great-nephews of Dorothy Ethel Gilmore (‘Dorothy’). They apply under Part IV of the Administration and Probate Act 1959 (Vic) (‘the Act’) for further provision to be made for their proper maintenance and support out of Dorothy’s estate.

The defendants are the executors of the estate. They apply in two proceedings for summary judgment against the plaintiffs. In this proceeding, the plaintiffs are Bradley Paul Jensen and Stuart Anthony Jensen. In the other proceeding, which is proceeding number S CI 2014 753 (‘the Keating Proceeding’), the plaintiffs are Terence James Keating and Terrence John Keating (‘the Keating plaintiffs’).

The defendants are, of course, common to the two proceedings, and their applications in both proceedings were heard one after the other – that is, effectively at the same time. The defendants’ written outline of submissions related to both applications. In the result, the plaintiffs in this proceeding benefited, without objection,…

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 Jensen v Jensen

Details

AGLC: Jensen v Jensen [2014] VSC 432
Case: [2014] VSC 432
Decision Date: 9 September 2014

CaseChat Overview and Summary

In the matter of Jensen v Jensen, the dispute arose from claims made by the testator's great nephews against the estate of the deceased, who was a widow with no children or dependants. The nephews sought to assert that the deceased had a responsibility to make provision for them, despite the absence of any legal obligation under the Administration and Probate Act 1958 (Vic). The court had to determine whether these claims had any real prospects of success and whether they warranted summary dismissal or a full hearing on the merits. The case was heard in the Supreme Court of Victoria.

The central legal issues before the court involved the interpretation of the Administration and Probate Act 1958 (Vic) and the application of the Civil Procedure Act 2010 (Vic), Part 4.4. Specifically, the court had to assess whether the claims by the great nephews were so lacking in merit that they should be dismissed without a full hearing. Additionally, the court considered whether the nature of the dispute required a full hearing to ensure that it was not in the interests of justice to dismiss the application without one. The court needed to balance the statutory framework governing the administration of estates with the principles of procedural fairness.

The court, in its judgment, found that the claims by the great nephews did not have real prospects of success. It was determined that the deceased, as a widow without children or dependants, had no legal obligation to make provision for her great nephews. The court emphasised that the statutory provisions did not impose such a duty and that the claims were, therefore, without foundation. Furthermore, the court concluded that the dispute did not necessitate a full hearing on the merits as the claims were clearly untenable. Consequently, the application was refused, and the court held that it was in the interests of justice to dismiss the application without proceeding to a full hearing.

The final orders of the court were that the application by the great nephews was dismissed. The court made it clear that the claims were without merit and did not warrant further proceedings. The estate was to proceed with its administration without the need to address these unfounded claims. This decision underscored the importance of adhering to the statutory framework governing the administration of estates and the judicious application of procedural rules to ensure efficient and fair resolution of disputes.

Orders