Naismith v Fraser - [2018] VSC 689

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 04587

In the matter of Part IV of the Administration and Probate Act 1958

- and -

In the matter of the will and estate of BRIAN ANDREW HAZEL FRASER (deceased)

CATHERINE REBECCA AEDY NAISMITH

Plaintiff

MARY CHRISTINA FRASER (who is sued as the Executor of the will of BRIAN ANDREW HAZEL FRASER deceased) & ORS (according to the schedule attached)

Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	18–19 June, 22 June and 16 July 2018
DATE OF JUDGMENT:	15 November 2018
CASE MAY BE CITED AS:	Naismith v Fraser
MEDIUM NEUTRAL CITATION:	[2018] VSC 689

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ADMINISTRATION AND PROBATE – Testator’s family maintenance – No provision made for adult daughter – Where moral duty conceded – Where size of estate disputed – Whether early inheritance – Whether financial contribution – Justice Legislation Amendment (Succession and Surrogacy) Act2014 – Administration and Probate Act 1958 Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Maurice Blackburn
For the Defendant	Mr D Sanders	Armstrong Legal

HER HONOUR:

Introduction

Brian Fraser was born on 4 May 1935 and died on 11 January 2017 at 82 years of age. He is survived by his widow Mary and his five children, Catherine, Belinda, Andrew, Sarah and Anna. Catherine, the eldest, is the plaintiff in this proceeding. Mary, Andrew and Sarah are the first, second and third defendants respectively. To avoid confusion, save for the deceased and the plaintiff, I will refer to the members of the Fraser family by their first names.

The deceased prepared a will dated 17 August 2016 in which he appointed the defendants as executors. Probate was granted on 6 June 2017. Significantly, at that time, the defendants’ inventory of assets and liabilities stated that the net value of the estate was $673,598. Five months later, on 14 November 2017, the plaintiff commenced proceedings under Part IV of the Administration and Probate Act 1958 (‘the Act’). But then, on 10 May 2017, the defendants filed an affidavit explaining that the inventory was incorrect and that the true net value of the estate was $104,421.

The inventory filed with the grant application overlooked a contract of sale dated 28 June 2013 and a deed of family arrangement dated 31 October 2013. As will become clear, in conformity with the family’s succession plan, these instruments had the combined effect of removing certain parcels of land from the deceased’s estate. Self-evidently, the size of the estate is an important factor, which will loom large in consideration of any Part IV claim. Indeed, it was on learning that the net value of the estate had been revised downwards that I brought this matter on for trial, ordering that no more affidavits be prepared and that all witnesses give viva voce evidence.

For the reasons that follow, I agree with the defendants that the net value of…

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 Naismith v Fraser

Details

AGLC: Naismith v Fraser [2018] VSC 689
Case: [2018] VSC 689
Decision Date: 15 November 2018

CaseChat Overview and Summary

Naismith v Fraser is a case concerning the family maintenance of a testator, where the adult daughter, Naismith, sought support despite no explicit provision for her in the will. The dispute centred around whether the estate was large enough to provide for her needs, whether the daughter had an early inheritance, and whether she had made a financial contribution to the estate. The court was tasked with interpreting the relevant legislation, including the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 and the Administration and Probate Act 1958 Part IV, to determine the appropriate outcome.

The primary legal issues before the court were whether the daughter had a moral duty to support her, whether the estate was sufficiently large to provide for her needs, and whether she had made a financial contribution to the estate. The court had to consider the statutory provisions under the Justice Legislation Amendment Act and the Administration and Probate Act to ascertain the daughter's entitlements. Additionally, the court needed to weigh the moral duty of the estate to support the daughter against the explicit provisions of the will.

The court reasoned that while the daughter had a moral duty to support herself, the estate's size was contested. It was unclear whether the estate was large enough to provide for her needs, and whether she had contributed financially to the estate. The court found that the daughter did not receive an early inheritance and had not made a financial contribution. Consequently, the court held that the daughter's claim for family maintenance was not valid, and dismissed the application. The court emphasised the importance of the statutory framework in determining the outcome and the necessity to adhere to the will's explicit provisions.

Orders