TERENCE JAMES KEATING	First Plaintiff
- and -
TERRENCE JOHN KEATING	Second Plaintiff
- and -
PAUL JENSEN and CHERYL BROWN (who are sued as the Executors of the Will of DOROTHY ETHEL GILMORE deceased)	Defendant

---

JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2014
DATE OF JUDGMENT:	9 September 2014
CASE MAY BE CITED AS:	Keating v Jensen
MEDIUM NEUTRAL CITATION:	[2014] VSC 433

---

ADMINISTRATION AND PROBATE — Testators’ family maintenance — Deceased a widow with no children or dependants — Claims by testatrix’s nephew and 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.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Kumar Kappadath	John Anile Pty
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

Terrence James Keating (Mr Keating Snr)................................................................................. 3
Terrence John Keating (Mr Keating Jnr).................................................................................... 5

Submissions........................................................................................................................................ 7

Defendants’ submissions............................................................................................................. 7
Plaintiffs’ submissions............................................................................................................... 11

Consideration.................................................................................................................................... 16

A normal Aunt – Nephew relationship................................................................................... 19
Relevant Factors.......................................................................................................................... 19
Dorothy’s appreciation of the value of the estate......................................................... 20
The size of the estate......................................................................................................... 20
The competing claims....................................................................................................... 21
The plaintiffs’ needs.......................................................................................................... 21

Conclusion......................................................................................................................................... 22

SCHEDULE....................................................................................................................................... 23

Applicable law.................................................................................................................................. 23

Summary Judgment test............................................................................................................. 23
Family provision legislation..................................................................................................... 25
The Legislation and General Principles......................................................................... 25
The First Stage....................................................................................................... 28
The Second Stage.................................................................................................. 29
The Third Stage..................................................................................................... 32

HIS HONOUR:

Introduction

The plaintiffs are the nephew and great-nephew, respectively, of the deceased, 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 this and a related proceeding for summary judgment against the plaintiffs. In this proceeding, the plaintiffs are Terence James Keating (‘Mr Keating Snr’) and Terrence John Keating (‘Mr Keating Jnr’). In the other proceeding, which is proceeding number S CI 2014 858 (‘the Jensen Proceeding’) the plaintiffs are Bradley Paul Jensen and Stuart Anthony Jensen (‘the Jensen plaintiffs’).

The defendants are, of course, common to the two proceedings, and their applications in both proceedings…

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 Keating v Jensen

Details

AGLC: Keating v Jensen [2014] VSC 433
Case: [2014] VSC 433
Decision Date: 9 September 2014

CaseChat Overview and Summary

In Keating v Jensen, the applicant sought to bring claims in the Supreme Court of Victoria on behalf of the estate of the deceased, who was the testatrix's nephew and great nephews, arguing for further provision for their maintenance. The case involved the estate of a deceased widow with no children or other dependants. The legal issues before the court were whether the deceased had any responsibility to make provision for the applicants, whether the claims had any real prospects of success, and whether it was appropriate for the claims to be summarily dismissed or if a full hearing was necessary. The court was required to consider statutory provisions under the Administration and Probate Act 1958 (Vic) and the Civil Procedure Act 2010 (Vic), specifically section 91 and Part 4.4.

The court found that the deceased had no legal responsibility to make provision for the applicants, as there were no dependants, and the applicants did not establish any real prospects of success for their claims. Despite this, the court emphasised the importance of ensuring that any dispute concerning the estate is handled fairly and justly. The court concluded that the dispute was of such a nature that it warranted a full hearing on the merits to ensure that all parties had an opportunity to present their case. It was not in the interests of justice to dismiss the application without a full hearing. Therefore, the application for summary dismissal was refused, allowing the matter to proceed to a full hearing.

In light of the above reasoning, the court ordered that the application for summary dismissal was to be refused. This decision allowed the dispute to progress to a full hearing, ensuring that all aspects of the claims and counter-claims could be thoroughly examined. The court's decision underscored the importance of balancing the need for efficient administration of estates with the necessity of providing a fair process for all parties involved.

Orders