Leyden v McVeigh

Case [2009] VSC 164


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4789 of 2009

IN THE MATTER of Part 4 of the Administration and Probate Act 1958

and

IN THE MATTER of the will and estate of Robert Andrew Leyden deceased

BETWEEN

GARY ANDREW LEYDEN Plaintiff
And
VINCENT BRIAN McVEIGH AND CATERINA IMMACOLATA McVEIGH Defendants

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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:

  1. 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”). 

  1. 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. 

  1. 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.

  1. The testator re-attended at Mr Hardiman’s…

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Leyden v McVeigh [2009] VSC 164
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[2009] VSC 164
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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