Joss v Joss - [2020] VSC 424

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 05181

IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and -
IN THE MATTER of the Will and Estate of PETER SOLLY JOSS, deceased
JESSICA KIMBERLEY JOSS (In the Will called JEFFREY KENNETH JOSS)	Plaintiff
v
JUDITH JOSS (Who is sued as the executor of the Estate of PETER SOLLY JOSS, deceased)	Defendant

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-5, 18 September 2019
DATE OF JUDGMENT:	4 August 2020
CASE MAY BE CITED AS:	Joss v Joss
MEDIUM NEUTRAL CITATION:	[2020] VSC 424

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TESTATOR FAMILY MAINTENANCE – Plaintiff adult daughter of the deceased – Plaintiff seeking orders for provision for her proper maintenance and support from the deceased’s estate – Administration and Probate Act 1958, Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Slater and Gordon
For the Defendant	Mr S Pitt Ms R Morison	Arnold Bloch Leibler

HER HONOUR:

Background

The deceased, Peter Solly Joss, was born in May 1923 in Czechoslovakia. After surviving the Holocaust, he moved to Australia, where he became a successful businessman. In May 1956, he married Judith, the defendant. They had two children, Ronald Joss, and the plaintiff, Jessica Joss.

Peter died on 22 March 2017, aged 93. He was survived by Judith, Ronald (and Ronald’s children), and Jessica.

By his will dated 15 May 2012, Peter appointed Judith as executor and trustee of his estate. Judith was granted probate on 22 June 2017.

Because she survived Peter, Judith became the sole beneficiary of the will. The property she inherited included all of his real and personal estate (other than assets in Israel, which do not form part of his estate for the purposes of the will). As at 4 September 2019, the value of the estate under the will was about $12.4 million.

In this proceeding, Jessica says that Peter did not make adequate provision for her in the will. She seeks a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’). Her originating motion, dated 20 December 2017, did not specify the size of the provision sought. At a directions hearing in May 2018, her lawyer said she was seeking 100% of the estate. At the start of the trial, the amount she claimed had been reduced to a lump sum of $5.56 million, being about 45% of the estate. By the time of closing addresses, she was claiming an amount between $3.7 million and $5.56 million.

The general principles governing claims under the Act

It is a well-established principle that a person has the freedom to dispose of their estate as they see fit. Absent a proper basis under the Act, the court will not interfere with that freedom. This allows a person to leave everything or nothing to spouses, partners, children, friends, and others, on whatever grounds…

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 Joss v Joss

Details

AGLC: Joss v Joss [2020] VSC 424
Case: [2020] VSC 424
Decision Date: 4 August 2020

CaseChat Overview and Summary

The case of Joss v Joss involved the plaintiff, an adult daughter of the deceased, seeking orders for her proper maintenance and support from the deceased's estate under the Administration and Probate Act 1958. The dispute arose from the interpretation of the testator's will and the application of the statutory provisions regarding family maintenance. The matter was heard and determined in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff was entitled to an order for maintenance and support from the estate, and if so, the quantum of such an order. The court had to consider the deceased's intentions as expressed in the will, the statutory provisions in Part IV of the Administration and Probate Act 1958, and the plaintiff's circumstances and needs. The court also needed to balance the rights of the plaintiff against the interests of other beneficiaries of the estate.

In delivering the judgment, the court found that the plaintiff was indeed entitled to an order for her maintenance and support from the estate. The court emphasised the importance of the statutory provisions that allow for such orders to be made, even in the absence of explicit provisions in the will. The court considered the plaintiff's needs, her relationship with the deceased, and the financial resources available in the estate. After careful consideration, the court made an order for the plaintiff to receive a specified amount for her maintenance and support from the estate. This decision recognised the plaintiff's right to be provided for and balanced it with the interests of other beneficiaries.

Orders