SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0089
| EDWARD JONES (A PSEUDONYM) | Appellant |
| v | |
| CONSTANCE SMITH (A PSEUDONYM) | Respondent |
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| JUDGES: | WHELAN, FERGUSON and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 June 2016 |
| DATE OF JUDGMENT: | 29 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 178 |
| JUDGMENT APPEALED FROM: | [2015] VSC 398 (McMillan J) |
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FAMILY PROVISION AND MAINTENANCE – Failure by mother to make sufficient provision for adult daughter in will – Daughter sexually abused by father as a child – Father later sexually abused grandson – Abuse had significant impact financially and emotionally on daughter and her family – Deceased promised daughter equal share of estate with her brothers – Will changed after grandson reported abuse to police – Daughter received lesser share of estate than brothers – Estate included five properties worth about $6 million – Daughter had assets in excess of $5 million – No requirement to treat children equally – Financial need must be established – Financial need relative concept to be considered in all circumstances of case – Provision not compensation for wrongdoing – Wise and just testator would have made greater provision for proper maintenance and support of daughter – Deceased had moral duty to provide for daughter which was informed by circumstances including promises made during lifetime – Appeal dismissed – Administration and Probate Act 1958, s 91.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr K J A Lyons QC with Mr R B Phillips | Venizelakos Lawyers and Notaries |
| For the Respondent | Mr S P Newton | Robinson Gill Lawyers |
WHELAN JA:
I have read in draft the reasons of Ferguson JA. For the reasons she gives, leave to appeal should be granted but the appeal should be dismissed.
FERGUSON JA:
Introduction
Edward (the appellant) and Constance (the respondent) are brother and sister.[1] There is a dispute between them over the estate of their mother Abigail. Edward is the executor of the estate and Constance is a beneficiary. A family tree depicting the relationship between them and other relevant family members (including their brother Phillip) is attached.
[1]Throughout these reasons pseudonyms have been used for each of the parties and their relatives to ensure that there is no possibility of identification. The pseudonyms are the same as those used by the judge in Smith v Jones [2015] VSC 398 (‘Reasons’) which is the subject of this appeal.
Their father (John) sexually abused Constance when she was a teenager. He later sexually abused her son (David) when he was about 4 years of age. Both Constance and David suffer significant mental health issues as a result of the abuse. The effect of the abuse does not stop with them. Rather, it has affected Constance’s husband (Thomas) and their two other children (Felicity and Robert). The abuse has had a financial impact on Constance and her family.
John died some years ago. At the time of his death, Abigail became the sole proprietor of the substantial real estate that…
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- AGLC
- Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
- Case
- [2016] VSCA 178
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the deceased's failure to provide adequate financial support for the appellant, in light of her history of abuse and the promises made by the deceased during her lifetime, constituted a failure to make "reasonable provision" for the appellant under the Administration and Probate Act 1958. The court had to determine whether the deceased's moral duty to provide for the appellant was influenced by the circumstances of the abuse and the promises made, and whether the provision made was reasonable in all the circumstances.
The court found that while there was no requirement for children to be treated equally in a will, financial need must be established and considered in all circumstances. The court emphasised that the provision made by a testator was not compensation for wrongdoing, but the appellant's need for financial support was influenced by the significant impacts of the abuse and the deceased's promises. The court concluded that a wise and just testator would have made greater provision for the proper maintenance and support of the appellant. The deceased's moral duty to provide for the appellant was informed by the circumstances, including the promises made during her lifetime, and the will did not reflect this duty. Consequently, the appeal was dismissed.
The court's final orders confirmed the dismissal of the appeal, upholding the validity of the will as it stood. The appellant was not entitled to a greater share of the estate than what was provided for her in the will. The court's decision underscored the importance of considering the totality of circumstances, including promises made during a testator's lifetime, in assessing whether reasonable provision has been made for a beneficiary.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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