Legal Research
Cases
Jones (a pseudonym) v Smith (a pseudonym)

Jones (a pseudonym) v Smith (a pseudonym)

Case [2016] VSCA 178 29 July 2016

Statutory Construction

Family Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0089

EDWARD JONES (A PSEUDONYM)	Appellant
v
CONSTANCE SMITH (A PSEUDONYM)	Respondent

---

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)

---

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.

---

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…

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 Jones (a pseudonym) v Smith (a pseudonym)

Details

AGLC: Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Case: [2016] VSCA 178
Decision Date: 29 July 2016

CaseChat Overview and Summary

In the case of Jones v Smith, the appellant, a daughter, sought to challenge the validity of her deceased mother's will, claiming inadequate provision was made for her in comparison to her brothers. The daughter alleged that she was sexually abused by her father as a child, and that this abuse, along with subsequent abuse of her grandson by the father, had significant financial and emotional impacts on her and her family. The deceased had promised the daughter an equal share of the estate with her brothers, but this promise was not fulfilled in the will, which was altered after the abuse by the father of the daughter's grandson was reported to the police. The estate included five properties worth about $6 million, while the daughter's assets exceeded $5 million.

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