FAMILY AND DEPENDANTS PROVISION – Eligibility of applicant – Whether deceased had responsibility to make provision for applicant – Whether enumerated considerations themselves supply answer or whether standard of a wise and just testator’s moral duty had to be applied – Applicant an adult unrelated to deceased – Large estate and applicant’s financial position poor – Whether his occupation of deceased’s Gold Coast unit since 1989 more than that of caretaker – Whether his assistance to her when at unit and their relationship merely friendship - Whether she partly maintained him or assumed responsibility for his maintenance – Appeal from dismissal of application dismissed – “Responsibility” – Administration and Probate Act1958, s.91(1), (3) and (4).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr. W.F. Gillies
RB Legal
For the Respondent
Mr. J.D. Merralls, Q.C. with Mr. R.T.A. Waddell
Harry M. Hearn
CALLAWAY, J.A.:
I agree with Batt, J.A. In my opinion, the learned trial judge correctly directed herself according to the authorities and the decision she made was well open to her. [1] There is one point on which I wish to say something on my own account, mainly because the legislation has changed since Grey v. Harrison.[2]
“(1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
…
(3)The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by –
(a)his or her will (if any); or
(b)the operation of the provisions of Part I, Division 6; or
(c)both the will and the operation of the provisions -
does not make adequate provision for the proper maintenance and support of the person.
(4)The Court in determining -
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate of the deceased person as effected by -
(i)the deceased's will; or
(ii)the operation of the provisions of Part I, Division 6; or
(iii)both the will and the operation of the provisions-
makes adequate provision for the proper maintenance and support of the person; and
(c)the amount of provision (if any) which the Court may order for the person; and
(d)any other matter related to an application for an order under sub-section…
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.
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AGLC
Lee v Hearn [2005] VSCA 127
Case
[2005] VSCA 127
Decision Date
CaseChat Overview and Summary
In the case of Lee v Hearn, the applicant, Lee, sought to be recognised as a dependant of the deceased, Hearn, under the Family and Dependants Provision Act. The central dispute was whether Lee, an unrelated adult, was entitled to a provision from Hearn's estate due to the deceased's alleged responsibility to make provision for him. The case was heard and determined in the Supreme Court of Victoria.
The primary legal issues before the court involved the interpretation and application of the statutory provisions concerning the deceased's responsibility to provide for certain individuals. Specifically, the court had to determine whether the enumerated considerations under the Act themselves provided a sufficient basis for determining responsibility, or if a broader standard akin to a wise and just testator's moral duty had to be applied. Furthermore, the court examined the nature and extent of the relationship between Lee and Hearn, and whether Lee's occupation of Hearn's Gold Coast unit since 1989 and the assistance he provided could be construed as more than mere friendship or caretaker duties.
The court found that the statutory considerations under the Act provided a comprehensive framework to determine whether a responsibility existed. The court held that it was not necessary to apply a broader standard of a wise and just testator's moral duty. The relationship between Lee and Hearn was characterized as a friendly one without evidence that Hearn had assumed responsibility for Lee's maintenance or that Lee's occupation of the unit was anything other than that of a caretaker. Consequently, the court dismissed Lee's application and, subsequently, his appeal against that dismissal.
The final orders of the court confirmed the dismissal of Lee's application for recognition as a dependant under the Family and Dependants Provision Act, affirming that the deceased had no responsibility to make provision for Lee from her estate. The appeal was also dismissed, upholding the lower court's decision.