MORGAN DACRE MACEWAN SHAW AND GWILYM MACEWAN SHAW (infants by their litigation guardian SHAUNA ALICE MACEWAN)	Plaintiffs
v
KATHERINE MAY SHAW (who is sued as the Executor of the Will of Neil William Shaw deceased)	Defendant

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JUDGE:	DODDS-STREETON J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11, 12 and 13 August 2003
DATE OF JUDGMENT:	2 September 2003
CASE MAY BE CITED AS:	MacEwan Shaw v Shaw
MEDIUM NEUTRAL CITATION:	[2003] VSC 318

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TESTATOR’S FAMILY MAINTENANCE – Application by infant grandchildren – Principles to be applied – Moral duty – Necessity for need in applicant – Freedom of testation to prevail unless abused – Three stage test – Factors under Administration and Probate Act s.91(4)(e) – (p) relevant to each stage – No moral obligation to provide for grandchild by virtue of the relationship per se – Whether grandparent assumed the role of primary provider for applicants – Relevance of pattern of generosity where significant benefits provided primarily to testator’s own child – Whether unconditional assurance by testator to fund grandchildren’s future education – Relevance of testator’s provision of residential property to his son – Size of estate – Defendant beneficiary’s contribution to welfare of testator and size of the estate – No breach of moral duty demonstrated – No assumption of responsibility to provide – No unconditional assurances to fund education at fee paying school – No relevant need established – Testator’s gift of residential property to applicants’ parent likely to benefit applicants – Parents of applicants bear primary legal and moral responsibility to provide - Grey v Harrison [1997] 2 VR 359; Collicoat v McMillan [1999] 3 VR 803 ; Sherlock v Guest [1999] VSC 409 ; Leahey v Trescowthick [1999] VSC 409 ; Blair v Blair [2002] VSC 95 ; Schmidt v Watkins [2002] VSC 273 ; Lee v Hearn [2002] VSC 208 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M. Scarfo	Marshalls & Dent
For the Defendant	Ms C. Sparke	Barrie J. Williams LLB

TABLE OF CONTENTS

THE PROCEEDING.......................................................................................................................... 2

THE PARTIES’ CONTENTIONS................................................................................................... 3

The Plaintiffs’ Contentions.............................................................................................................. 3

The Defendant’s Contentions.......................................................................................................... 4

LEGISLATION AND GENERAL LEGAL PRINCIPLES........................................................... 5

THE FACTORS UNDER SECTION 91(4) OF THE ACT......................................................... 13

Section 91(4)(e) and (f)................................................................................................................ 13

Relationship of grandchild........................................................................................................ 14
Recent Victorian case law........................................................................................................ 14
Other relevant case law............................................................................................................ 16
Was the deceased a primary provider for the plaintiffs?............................................................ 22
Private education...................................................................................................................... 26
Contact..................................................................................................................................... 29
No assumption of parental responsibility to provide................................................................. 30
Section 91(4)(f) – (g)................................................................................................................ 32
Section 91(4)(h)........................................................................................................................ 35
Section 91(4)(i) Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate......................................................................................................................................... 38
Section 91(4)(j) The age of the applicant................................................................................ 38
Section 91(4)(k)) Any contribution (not for adequate consideration) of the applicant to building up the estate or…

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 MacEwan Shaw v Shaw

Details

AGLC: MacEwan Shaw v Shaw [2003] VSC 318
Case: [2003] VSC 318
Decision Date: 2 September 2003

CaseChat Overview and Summary

In the matter of MacEwan Shaw v Shaw, the applicants, infant grandchildren of the deceased, sought maintenance from the estate under the principles outlined in the Administration and Probate Act 1958 (Vic). The dispute centred on whether the grandchildren were entitled to a portion of the estate for their maintenance needs, despite not being directly mentioned in the will. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the deceased had a moral obligation to provide for the grandchildren under the statute, specifically section 91(4)(e) of the Administration and Probate Act 1958 (Vic). This involved a three-stage test assessing whether there was an assumption of responsibility, any relevant need, and whether the deceased made unconditional assurances regarding the grandchildren’s future education. The court also had to consider the pattern of benefits within the estate, the size of the estate, and the contribution of the defendant beneficiary to the testator’s welfare.

The court found that no moral obligation existed to provide for the grandchildren solely based on their relationship with the deceased. The grandchildren had not established that they assumed the role of primary providers or that there were any unconditional assurances regarding their education. The court also noted that the deceased’s significant benefits were directed primarily towards their own child, and the gift of residential property to the children's parent was likely to benefit the grandchildren. Given the parents’ primary legal and moral responsibility to provide for their children, the applicants' claim was dismissed.

The court ordered that the application for maintenance be dismissed, with no orders for costs.

Orders