LISA McCANN	Plaintiff
and
HELEN MARGARET WARD and LYNNE MAREE BURGESS (who are sued as the Executrices of the Will of Harold David Fellows Ward deceased)	Defendants

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JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	8, 9, 16, 17 and 22 February 2012
DATE OF JUDGMENT:	1 March 2012
CASE MAY BE CITED AS:	McCann v Ward & Burgess
MEDIUM NEUTRAL CITATION:	[2012] VSC 63

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TESTATOR’S FAMILY MAINTENANCE – Deceased survived by second wife, three children of his first marriage and two stepchildren – Stepdaughter’s claim – Large estate – Children of first marriage wealthy and well provided for in will - Whether moral responsibility to provide for stepdaughter – Whether stepfather’s will made adequate provision for stepdaughter – Relevance of bequests made in will of the surviving spouse – Whether deceased ought to have reasonably foreseen stepdaughter’s present need – Relevance of factors causing present need – Further provision ordered - Administration and Probate Act 1958 (Vic) ss 91, 96.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Dandanis & Associates
For the Defendant	Ms K McMillan SC with Mr S T Pitt	Mills Oakley

TABLE OF CONTENTS

Introduction and parties................................................................................................................... 2

Applicable law.................................................................................................................................... 7

Did David have a responsibility to make provision for Lisa?................................................. 10

Did David’s will make adequate provision for Lisa?................................................................ 26

What amount of provision (if any) should be ordered?........................................................... 26

HIS HONOUR:

Introduction and parties

Harold David Fellows Ward (‘David’) died on 24 April 2007, aged 77 years. He was survived by his second wife, Jill Ivy Ward (‘Jill’), who was then aged 78. David was also survived by three children of his first marriage: Lynne, Steven and Helen; and by Jill’s two daughters, David’s stepdaughters, Lisa and Giselle.

As he died before Jill, and consequently has no residuary estate, David’s will made no provision for his stepdaughter Lisa. In this proceeding, Lisa claims that David had a responsibility to make provision in his will for her proper maintenance and support. The defendants in the proceeding are Helen and Lynne in their capacity as executrices of David’s will. Unless it is necessary to refer to them individually, I will refer to contentions made on their behalf as being made by ‘the estate’. The estate contends that David had no responsibility to make provision for Lisa in his will. In particular, it is contended that David made adequate provision for Lisa in his lifetime, by giving substantial assets to Jill on the understanding that Jill would make provision for Lisa in her will; and that Jill has done so. Jill is still alive.

David died a wealthy man. His principal asset was 274 shares in HSK Ward Pty Ltd (‘the…

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 McCann v Ward & Burgess

Details

AGLC: McCann v Ward & Burgess [2012] VSC 63
Case: [2012] VSC 63
Decision Date: 1 March 2012

CaseChat Overview and Summary

McCann v Ward & Burgess involves a dispute regarding the adequacy of maintenance provisions made in the will of a deceased man for his stepdaughter. The deceased had passed away leaving behind his second wife, three children from his first marriage, and two stepchildren from his second marriage. The stepdaughter, who was the sole claimant, argued that despite the deceased’s large estate, and the fact that the children from his first marriage were already wealthy and well provided for, there was still a moral responsibility to ensure her maintenance. She contested that the provisions made in the will were inadequate and sought further maintenance from the estate.

The central legal issue before the court was whether the deceased had a moral obligation to provide for his stepdaughter given the circumstances, and if the provisions made in his will were sufficient. The court had to consider the relevant statutory provisions under the Administration and Probate Act 1958 (Vic), particularly sections 91 and 96, which allow for additional maintenance claims from the estate if deemed necessary. Additionally, the court examined the relevance of the bequests made in the will of the surviving spouse and whether the deceased should have reasonably foreseen the stepdaughter’s present needs. The stepdaughter's current financial situation and the factors contributing to it were also part of the court's considerations.

The court concluded that there was indeed a moral responsibility to provide for the stepdaughter, especially since the children from the first marriage were already well provided for. The will’s provisions were deemed inadequate, and the stepdaughter’s present need was influenced by factors that the deceased could have reasonably foreseen. Therefore, the court ordered additional maintenance from the estate to adequately provide for her. The court's decision was based on a careful balance of statutory provisions and the equitable considerations inherent in family maintenance claims.

Orders