JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2022
DATE OF JUDGMENT:	2 March 2023
CASE MAY BE CITED AS:	Pavlidis v Pavlidis
MEDIUM NEUTRAL CITATION:	[2023] VSC 92

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TESTATORS FAMILY MAINTENANCE AND PROVISION – Application by adult son of testator – Application to extend time - Delay in notification of terms of will - Whether adequate provision for the need of adult son – Competing need of adult daughter – Whether conduct towards the deceased by adult son amounts to disentitling conduct – Administration and Probate Act 1958 (Vic), Part IV – s 99(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	W F Gillies	A Agrotis & Associates
For the Defendant	A P Dickenson	Sharrock Pitman Legal

HER HONOUR:

Evangelia Pavlidis (the deceased) died on 20 November 2017. She was the mother of two adult children: Jack and Kay Pavlidis. I use first names, or a description of familial relationships for the Pavlidis family members for ease of reading. I mean no disrespect by this. The deceased executed a will dated 27 April 2016 that appointed her daughter as executor. Probate was granted on 27 November 2018. The inventory of assets and liabilities sworn 2 November 2018 demonstrated an estate valued at $1,969,970. The major asset of the estate was the deceased’s home at 2 Zander Court, Doncaster, owned outright with an estimated value at the time of $1,425,000. It has since been sold. The balance of the estate comprised funds in various accounts, shares and an estimate for household belongings.

The will provided that, if Jack was not married with at least one child at the time of his mother’s death (which he was not), he was to receive a legacy of $100,000. The will otherwise left the estate to Kay. Clause 4 of the will provides:

I DIRECT all persons to take notice that I have assisted my son JACK PAVLIDIS during my lifetime which enabled him to acquire a property at 1 Zander Court, Doncaster in the State of Victoria and given his inconsistent treatment towards me I say that the bequest made in the preceding paragraph is a statement of my intent as to what I wish him to receive under the terms of my Will if he is not married and has neither a child or children at the time of my death.

The will provided that, if Jack had children, then one-third of the estate was to be held on trust for those children until they reached the age of 25.

Jack brings a claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (the Act) for further provision from the estate. Jack filed the application on 8 December 2021. As it is beyond…

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 Pavlidis v Pavlidis

Details

AGLC: Pavlidis v Pavlidis [2023] VSC 92
Case: [2023] VSC 92
Decision Date: 2 March 2023

CaseChat Overview and Summary

Pavlidis v Pavlidis is an appeal concerning an application by an adult son for maintenance and provision from the estate of his deceased father. The son sought to extend the time for lodging his application, which was opposed by the executors of the estate. The dispute centred on whether the son had received adequate provision from the will and whether his conduct towards his father amounted to disentitling conduct. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the adult son had received adequate provision from the estate of his father. The court had to consider whether the son's needs were met by the provisions in the will and whether the son's conduct towards his father could be considered disentitling. The court also needed to determine whether the delay in lodging the application could be justified under the relevant statute.

The court found that the son had not been adequately provided for by the will, despite the daughter receiving a larger share of the estate. The court considered the son's needs and concluded that he should have received more substantial provision. The court also found that the son's conduct towards his father did not amount to disentitling conduct. The delay in lodging the application was considered justifiable due to the late notification of the terms of the will. The court allowed the application to be extended and ordered that the son receive adequate maintenance and provision from the estate.

The court's final orders included granting the son's application for maintenance and provision, ordering the executors to pay the son a lump sum and ongoing maintenance payments. The court also ordered that the executors pay the son's legal costs.

Orders