JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2009
DATE OF JUDGMENT:	30 April 2009
CASE MAY BE CITED AS:	Leyden v McVeigh & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 164

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Testator’s family maintenance – Application – Adult son – Parents separated – Applicant maintained relationship with testator – Small estate – Testator bequeathed whole estate to friends – Unsound reasons stated by testator for disinheriting applicant – Applicant on comfortable income but subject to vicissitudes – Administration and Probate Ac 1958 (Vic) Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	Mahonys
For the Defendants	Mr S Newton	Brendan H Hardiman & Associates

HIS HONOUR:

The plaintiff is the son of Robert Andrew Leyden (the “testator”), who died on 6 July 2007. At the time of his death, the testator had an estate which, for probate purposes, was valued in the sum of $309,000. By his last will dated 17 May 2007, he appointed the defendants as his executors, and left his entire estate to them. The defendants were long standing and close friends of the testator for more than 20 years before he died. The plaintiff, in this proceeding, claims provision from the estate of the testator pursuant to Part 4 of the Administration and Probate Act 1958 (“the Act”).

The plaintiff was born in 1970. He has one sibling, a sister, who does not join in this application. The testator separated from his wife, Valerie, in April 1992. They did not ever divorce, but in May 1993 they entered into a property settlement. After the separation, the testator moved to a caravan behind a friend’s factory in Croydon, where he lived for approximately three or four years. In about 1996, he moved to live in Elmhurst, where he was residing at the time of his death.

Approximately two years after he separated from his wife, the testator made a will dated 4 March 1994. By that will, he appointed the plaintiff as his executor, and devised the whole of his estate to the plaintiff. On 15 March 2007, the testator attended his solicitor, Mr Brendan Hardiman, by prior arrangement. The defendants had accompanied the testator on the drive to Melbourne, and he insisted that they be present at the conference with Mr Hardiman. In the course of that conference, the testator instructed Mr Hardiman that he wished to make a new will, by which he was to leave the whole of his estate to the defendants. He told Mr Hardiman that he had only had limited contact with the plaintiff, who was living in Melbourne.

The testator re-attended at Mr Hardiman’s…

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 Leyden v McVeigh

Details

AGLC: Leyden v McVeigh [2009] VSC 164
Case: [2009] VSC 164
Decision Date: 30 April 2009

CaseChat Overview and Summary

Leyden v McVeigh is a case that involves a dispute concerning a testator’s estate. The applicant, Leyden, is an adult son of the deceased, McVeigh. The deceased, McVeigh, left the entirety of his estate to his friends, excluding Leyden, despite having a relationship with him. The case was heard by the Supreme Court of Victoria. The central legal issue in this case was whether the applicant, Leyden, was entitled to a provision from the estate of his deceased father, McVeigh, despite being disinherited. The court had to consider whether the reasons provided by McVeigh for disinheriting Leyden were valid and whether the applicant's circumstances warranted a provision from the estate.

The court considered the relevant statutory provisions, particularly those in the Administration and Probate Act 1958 (Vic) Part IV, which provides for applications by a testator’s family for maintenance from the estate. The court noted that McVeigh had provided no sound reasons for disinheriting Leyden. The court also took into account Leyden’s relationship with McVeigh and the fact that although Leyden was on a comfortable income, he was subject to financial vicissitudes. The court found that despite Leyden’s income, he still required financial assistance from his father’s estate to maintain his standard of living.

The court concluded that Leyden was entitled to a provision from McVeigh’s estate. The court ordered that a sum of money be paid to Leyden from the estate, considering his relationship with McVeigh and the lack of valid reasons for his disinheritance. The court’s decision was based on the principle that a testator’s decision to disinherit a family member must be based on sound reasons, and where there are no such reasons, the court may order a provision from the estate. The final order of the court was that a sum of money be paid to Leyden from McVeigh’s estate.

Orders