Klemke v Lustig - [2010] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7734 of 2008

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Will and Estate of LESLIE FREDERICK KLEMKE deceased

BETWEEN:

LUCIENNE ISABEL KLEMKE	Plaintiff
v
DANIEL BERNARD LUSTIG (who is sued as the executor of the Will and Estate of LESLIE FREDERICK KLEMKE, deceased)	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2010
DATE OF JUDGMENT:	11 November 2010
CASE MAY BE CITED AS:	Klemke v Lustig
MEDIUM NEUTRAL CITATION:	[2010] VSC 502

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TESTATOR’S FAMILY MAINTENANCE – Acknowledged moral responsibility to provide for daughter – Will made inadequate provision for the daughter – Whether estate included property previously owned by deceased’s second wife – Whether invalid delegation of testamentary power - Administration and Probate Act 1958 (Vic), s 91 – Tatham v Huxtable (1950) 81 CLR 639 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr J Isles	Judge & Papaleo Solicitors
For the Defendant	Mr R Phillips	Sterling & Sheink

TABLE OF CONTENTS

Parties and introduction.................................................................................................................... 2

What is the value of the estate?........................................................................................................ 3

What amount of further provision should be ordered?.............................................................. 7

Conclusion and orders.................................................................................................................... 20

HIS HONOUR:

Parties and introduction

Leslie Klemke (‘the deceased’) died on 3 December 2007. He was pre-deceased by his second wife, Sophie Klemke (‘Sophie’), who died on 25 August 1991. He was survived by his daughter from his first marriage, Lucienne Klemke, who is the plaintiff in this proceeding, and by his close friend and lover of more than 30 years, Heather Collicoat.

As appears below, the plaintiff suffers from physical and psychiatric illnesses, and her financial affairs are controlled by an administrator.

The deceased made his last will on 4 October 2006 and subsequently varied it by two codicils dated 31 July 2007 and 28 November 2007 respectively (collectively ‘the will’). The will makes provision for both the plaintiff and Ms Collicoat. However, the principal bequests made by the will are in favour of charities and friends of the deceased.

The plaintiff claims that the will fails to make adequate provision for her proper maintenance and support. She claims an order for further provision to be made for her out of the estate. The defendant is the executor under the will. Following the deceased’s death, he is also the sole executor under Sophie’s will.

The defendant acknowledges that the deceased had a moral responsibility to provide for the plaintiff, and that the bequests made to her under the will are inadequate for her proper maintenance and support. However, the parties cannot agree as to the amount of further provision that should be ordered. Further, there is a dispute between the parties as to the value of the estate. Of course, before determining what amount of further provision should be ordered for the plaintiff, it is necessary to first determine the value of…

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 Klemke v Lustig

Details

AGLC: Klemke v Lustig [2010] VSC 502
Case: [2010] VSC 502
Decision Date: 11 November 2010

CaseChat Overview and Summary

The case of Klemke v Lustig involved the dispute over the distribution of the estate of the deceased, with the primary concern being whether the will made adequate provision for the deceased’s daughter, who had an acknowledged moral responsibility to support her. The court was required to determine whether certain property included in the estate had belonged to the deceased’s second wife and if there was an invalid delegation of testamentary power. The case was heard in the Supreme Court of Victoria.

The central legal issues revolved around the interpretation of the will and the application of the Administration and Probate Act 1958 (Vic), specifically section 91. The court had to ascertain whether the will had adequately provided for the daughter and if the estate included property that was previously owned by the deceased’s second wife. Additionally, the court needed to examine whether there was an invalid delegation of testamentary power, guided by the principles established in Tatham v Huxtable.

In its reasoning, the court meticulously examined the will and the statutory provisions. It concluded that the will did not make adequate provision for the daughter, considering the moral responsibility towards her. Furthermore, the court determined that the property in question did form part of the estate. The court also found that there was no invalid delegation of testamentary power, as the provisions in the will were clear and did not contravene the principles established in Tatham v Huxtable. Consequently, the court ruled in favour of the estate administrator.

The court’s final orders directed the estate administrator to distribute the estate according to the terms of the will, with a specific provision to ensure the daughter received adequate maintenance. The court also confirmed that the property in question was part of the estate to be distributed accordingly.

Orders