Paola v State Trustees Ltd - [2012] VSC 158

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 0950
S CI 2010 1065

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

-and-

IN THE MATTER of the Estate of KEITH BENNETT (deceased)

B E T W E E N

WAYNE ANTHONY PAOLA, CARL JOSEPH PAOLA and GAVIN JAMES PAOLA	Plaintiffs
v
STATE TRUSTEES LIMITED (which is sued as administrator of the estate of the above named deceased)	Defendant

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TESTATOR’S FAMILY MAINTENANCE – Application by stepsons – Intestacy – Whether deceased testator had responsibility to provide for the proper maintenance and support of stepsons – Amount of provision.

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2011
DATE OF JUDGMENT:	26 April 2012
CASE MAY BE CITED AS:	Paola v State Trustees Limited
MEDIUM NEUTRAL CITATION:	[2012] VSC 158

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S CI 2010 0950

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A.J. Verspaandonk	Moores Legal
For the Defendant	Mr R. Boaden	State Trustees Ltd

S CI 2010 1065

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Miller	TSA Lawyers
For the Defendant	Mr R. Boaden	State Trustees Ltd

HER HONOUR:

By originating motions dated 23 February 2010 and 26 February 2010, the plaintiffs seek orders that provision be made for their proper maintenance and support out of the estate of Keith Bennett (“the deceased”), who died on 5 May 2009, at the age of 76.

The plaintiffs, Wayne Anthony Paola, Carl Joseph Paola and Gavin James Paola, are the deceased’s stepsons. The plaintiffs say they are persons for whom the deceased had responsibility to make provision within the meaning of s 91 of the Administration and Probate Act 1958 (Vic) (“the Act”).

The deceased died intestate. He had married, but was divorced. His parents pre‑deceased him and he appears to have had no siblings. His next of kin are cousins on his mother’s side, Sybil Price and Beryl Harrison.[1]
[1]Affidavit of Katherine Ensor dated 5 April 2012 in proceeding 0950 of 2010, at [12] and [23].

As the deceased died intestate, he is taken to have made a will in terms to the effect of the intestacy provisions of the Act.[2]
[2]Re:Russell [1970] QWN 22; cited in Iwasivka v State Trustees Ltd [2005] VSC 323, at [5].

Pursuant to Part IV of the Act, the Court is only empowered under s 91 to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person “for whom the deceased had a responsibility to make provision.” The Court is not to make such an order in favour of such a person unless the Court is of the opinion that the distribution of the estate by the will does not make adequate provision for the proper maintenance and support of such a person.

In determining whether the deceased had a responsibility to make provision for a person, the Court is required…

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 Paola v State Trustees Ltd

Details

AGLC: Paola v State Trustees Ltd [2012] VSC 158
Case: [2012] VSC 158
Decision Date: 26 April 2012

CaseChat Overview and Summary

The parties involved in this case are Paola, who are the stepsons of the deceased, and State Trustees Ltd, the executor of the deceased's estate. The dispute arises from the deceased's will, which left no provision for the stepsons despite their claims that the deceased had a responsibility to provide for their maintenance and support. The court was required to decide whether the deceased had such a responsibility under the Succession Act and, if so, what the appropriate amount of provision should be.

The legal issues before the court included determining whether the deceased had a responsibility to provide for the stepsons' maintenance and support under the Succession Act, and if so, what the appropriate amount of provision should be. The court had to consider the testator's obligations to provide for family members under the Act and whether the stepsons were considered family members for these purposes.

The court concluded that the deceased had a responsibility to provide for the proper maintenance and support of the stepsons, as they were considered family members under the Succession Act. The court found that the deceased had provided for the stepsons' needs during his lifetime and had a moral obligation to continue this support after his death. The court awarded the stepsons an amount that reflected the deceased's responsibility to provide for their maintenance and support. The final orders included the provision of a specific sum to the stepsons from the deceased's estate.

Orders