JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2014
DATE OF JUDGMENT:	27 February 2015
CASE MAY BE CITED AS:	O’Brien v Hall
MEDIUM NEUTRAL CITATION:	[2015] VSC 52

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ADMINISTRATION AND PROBATE – Part IV – Testators’ Family Maintenance – Application for provision for the proper maintenance and support where no grant of probate of deceased’s Will in Victoria – General grant of probate of deceased’s Will in United Kingdom – Principal asset of deceased’s estate a right to due administration of mother’s Will in United Kingdom – Asset of mother’s estate real property in United Kingdom – Proceeds of administration of mother’s Will (sale of real property) paid to executrix’s solicitors in United Kingdom and thence paid to executrix, who is also sole beneficiary under deceased’s Will – Whether jurisdiction available to commence application under Part IV – whether proceeding a nullity – No jurisdiction without grant of probate or reseal of United Kingdom probate – Administration and Probate Act 1958 (Vic), ss 6, 90, 91, 93, 97, 99 & 99A.

PRACTICE AND PROCEDURE – Application to dismiss proceeding as disclosing no cause of action – Application for summary judgment by defendant – Whether appropriate for summary dismissal – Supreme court (General Civil Procedure) Rules 2005 (Vic), r 23.01(1)(a) and r 23.03; Civil Procedure Act 2010 (Vic), Part 4.4.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr I Hardingham QC and Mr M McKenzie	Constable Connor & Co Pty Ltd
For the Defendant	Mr R. Boaden	Armstrong Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of Conclusions................................................................................................................. 1

Background......................................................................................................................................... 3

Procedural Rules and Principles..................................................................................................... 7

The Defendant’s Contentions........................................................................................................ 10

Jurisdiction................................................................................................................................... 10
No Estate...................................................................................................................................... 11

The Plaintiff’s Response................................................................................................................. 12

Jurisdiction................................................................................................................................... 12
No Estate...................................................................................................................................... 14
Defendant’s Submissions in Reply........................................................................................... 15

The Victorian Legislation............................................................................................................... 17

Decisions on Comparable Legislative Provisions...................................................................... 21

United Kingdom......................................................................................................................... 21
Queensland.................................................................................................................................. 24
South Australia............................................................................................................................ 27
Western Australia....................................................................................................................... 29
Current provisions in NSW and Queensland – A contrast................................................... 30

Consideration.................................................................................................................................... 32

Jurisdiction................................................................................................................................... 32
No Assets...................................................................................................................................... 39

Conclusion......................................................................................................................................... 41

HIS HONOUR:

Introduction

Lauren O’Brien (‘the plaintiff’) is the daughter of the deceased (‘George Hall’ or ‘the deceased’) from his first marriage. By Originating Motion filed on 8 April 2014, the plaintiff has applied under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) for an order making provision for her maintenance and support on the basis that the deceased had responsibility to make provision for her, and his Will failed to make any such provision (‘an application for family provision’).

Olwen Mary Hall (‘the defendant’) is George Hall’s second wife, and the executrix and universal beneficiary under his Will made on 17 July 2006.…

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 O'Brien v Hall

Details

AGLC: O'Brien v Hall [2015] VSC 52
Case: [2015] VSC 52
Decision Date: 27 February 2015

CaseChat Overview and Summary

The matter of O'Brien v Hall concerned an application under Part IV of the Administration and Probate Act 1958 (Vic), specifically regarding a claim for proper maintenance and support. The applicant, O'Brien, sought to make an application for provision for proper maintenance and support of the deceased's family, where no grant of probate of the deceased's will had been made in Victoria. The deceased's will had been granted probate in the United Kingdom, and the primary asset of the estate was the right to due administration of the mother's will in the United Kingdom, which included real property. The executrix of the will was also the sole beneficiary.

The legal issues before the court were whether the court had jurisdiction to commence the application under Part IV of the Act in the absence of a grant of probate in Victoria, and whether the proceeding was a nullity due to the lack of a local grant of probate. The court considered whether the United Kingdom probate could be resealed in Victoria and whether the absence of a local grant of probate rendered the proceeding a nullity. The court needed to determine if the court's jurisdiction was contingent on the existence of a local grant of probate or if there were alternative grounds for jurisdiction.

The court concluded that the jurisdiction to make an order under Part IV of the Act was contingent upon the existence of a grant of probate in Victoria or the resealing of a United Kingdom probate. Since no such grant or resealing had occurred, the court lacked the jurisdiction to entertain the application. The court further held that the proceeding was not a nullity but was rather an irregularity that precluded the court from exercising its jurisdiction. Consequently, the court dismissed the application for summary judgment by the defendant, finding it inappropriate to grant summary dismissal. The court's reasoning was grounded in the statutory provisions of the Administration and Probate Act 1958 (Vic) and the relevant rules and acts governing civil procedure in Victoria.

Orders