Larkin v Borg - [2013] VSC 128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 6959 of 2010

IN THE MATTER OF Part IV of the Administration and Probate Act1958

-and-

IN THE MATTER OF the Will and Estate of JOSEPH IGNATIUS GABRIEL BORG, deceased

ELIZABETH ANNE LARKIN	Plaintiff
v
JOANNE VENDRA BORG (who is sued as the executrix of the will and trustee of the estate of the abovenamed deceased)	Defendant

---

JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 4 October 2012
DATE OF JUDGMENT:	12 April 2013
CASE MAY BE CITED AS:	Larkin v Borg
MEDIUM NEUTRAL CITATION:	[2013] VSC 128

---

TESTATOR’S FAMILY MAINTENANCE – Claim by a girlfriend of the deceased – Deceased a widower survived by one adult child – Estate left to the adult child of the deceased – Application under Part IV of the Administration and Probate Act 1958 – Whether the relationship between the plaintiff and the deceased gave rise to the relevant moral duty on the part of the deceased to make provision for the plaintiff – Forsyth v Sinclair [2010] VSCA 147 (22 June 2010); Whitehead v State Trustees Ltd [2011] VSC 424 (2 September 2011)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	I J Hardingham QC J R Davis	Anderson Law
For the Defendant	P J Riordan SC J K Arthur	Randles Cooper & Co

HER HONOUR:

Introduction

In this proceeding, the plaintiff claims, pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’), provision for her maintenance and support from the estate of Joseph Ignatius Gabriel Borg, deceased (’the deceased’).

The plaintiff contends that she was in a warm and loving relationship with the deceased starting from the summer of late 1991 or early 1992, until his death in March 2010 and that her relationship with the deceased was such that it gave rise to the relevant duty on the part of the deceased to make provision for her from his estate.

The deceased died on 6 March 2010 leaving a will dated 17 May 1998. Probate of the will was granted to his daughter, the defendant, on 19 July 2010.

At the date of his death, the deceased was:

(a) a widower, his wife having died in March 2000; and

(b) the father of one child, namely, the defendant.

By his will, the deceased left his estate, valued at $7 587 058.76, to the defendant.

The plaintiff filed three affidavits sworn by her, an affidavit by her son, Richard Larkin, and an affidavit by her sister, Stephanie H’Enrie.

The defendant filed affidavits sworn by the defendant, Margaret Cecilia Critchley, Diane Martin, Natasha Booth, Alfred Vella, Eric Wetmor and Haralmbos Athanasakopoulos.

Applicable Principles

In an application for provision made under s 91 of the Act, the Court must decide:

(a) at the date of his death, whether the deceased had a responsibility to make provision for the maintenance and support of the plaintiff;

(b) if so,…

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 Larkin v Borg

Details

AGLC: Larkin v Borg [2013] VSC 128
Case: [2013] VSC 128
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the matter of Larkin v Borg, the deceased was a widower who left his estate to his adult child, excluding his girlfriend who had been in a de facto relationship with him. The girlfriend, the plaintiff, brought a claim under Part IV of the Administration and Probate Act 1958, seeking maintenance from the deceased's estate. The legal question before the court was whether the relationship between the plaintiff and the deceased established a moral duty on the part of the deceased to provide for the plaintiff.

The court was required to determine if the plaintiff's relationship with the deceased was of a nature that gave rise to a moral duty for the deceased to make provision for her in his will. The court considered the applicable principles established in Forsyth v Sinclair and Whitehead v State Trustees Ltd, which set out the criteria for a successful claim under the Act. The court examined the duration, nature, and circumstances of the relationship to assess whether there was a moral obligation on the part of the deceased to provide for the plaintiff.

The court found that the relationship did not reach the threshold of a moral duty that would obligate the deceased to provide for the plaintiff in his will. The court concluded that the deceased's decision to leave the estate solely to his adult child was not unreasonable, given the circumstances and the legal framework governing testamentary freedom. Consequently, the court dismissed the plaintiff's claim.

The court's final order was that the plaintiff's claim for maintenance from the deceased's estate was dismissed, and no provision was made in favour of the plaintiff.

Orders