Patricia Morris v Smoel

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 1113 of 2011

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

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IN THE MATTER of the Estate of MAXWELL VERNON MORRIS, deceased

PATRICIA MOLLY MORRIS	Plaintiff
v
KERRY LINDA SMOEL and SUSAN CAROLYN WOOSTER (who are sued as the Executrices of the Will of MAXWELL VERNON MORRIS, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2013, 29 April 2013, 11 November 2013
DATE OF JUDGMENT:	14 February 2014
CASE MAY BE CITED AS:	Patricia Morris v Smoel
MEDIUM NEUTRAL CITATION:	[2014] VSC 31

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TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Claim by widow of the deceased — Whether the deceased had a responsibility to make further provision for the widow — Competing claims against the estate of the deceased — Estate assets substantially depleted as a result of litigation resulting from the death of the deceased — Widow’s claim dismissed

BANKRUPTCY — Death of the widow after trial and before judgment — Estate of the widow insolvent — Representative of estate of the widow to make application for administration of plaintiff’s estate pursuant to s 247 of the Bankruptcy Act 1966 (Cth)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	Piper Alderman
For the Defendant	Mr P Crofts	Aitken Partners
For Peter Morris and Amy Summer Morris (by her next friend Margaret Bonnar)	Mr J Loewenstein	Alliance Legal

HER HONOUR:

Introduction

1. The plaintiff (‘Mrs Morris’) is the widow of Maxwell Vernon Morris (‘the deceased’). Pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’), Mrs Morris claims the deceased had a responsibility to make further provision for her.

1. The deceased died on 27 February 2010, leaving a will dated 8 April 2009 (‘the will’).  Probate of the deceased’s will was granted to the defendants on 15 September 2010.  At the date of his death, the deceased was survived by:

(a)Mrs Morris, his second wife;

(b)his three adult children of his first marriage:

(i)Mr Peter Morris (‘Mr Morris’), his adult son and the first plaintiff in a separate proceeding seeking further provision from the estate (‘Mr Morris’ Part IV claim’); and

(ii)Mrs Susan Linda Smoel and Mrs Susan Carolyn Wooster, his adult daughters and the defendants in this proceeding; and

(c)His grandchildren, including his granddaughter Ms Amy-Summer Morris (‘Amy), who is the second plaintiff in Mr Morris’ Part IV claim.

1. The trial of this proceeding was heard together with Mr Morris’ Part IV claim, and the evidence and submissions in both trials took place on 23 April 2013 and 29 April…