Re Bull; Bentley v Brennan - [2006] VSC 113

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7377 of 2002

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

and

IN THE MATTER of the Will and Estate of DAVID RODNEY BULL (deceased)

BETWEEN:

SCOTT LEON BENTLEY	Plaintiff
V
JANET MARY BRENNAN (who is sued as the Executor of the Will of the abovenamed deceased)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATES OF HEARING:	14, 15 March 2006
DATE OF JUDGMENT:	7 April 2006
CASE MAY BE CITED AS:	Re Bull, deceased
MEDIUM NEUTRAL CITATION:	[2006] VSC 113

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Family provision – adult male claimant – claimant sexually abused by deceased as a child – whether a person for whom deceased has responsibility to make provision.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Lawson Hughes Peter Walsh
For the Defendant	Mr R Phillips	Morley Naughton Pearn & Cook

HIS HONOUR:

The plaintiff, Scott Leon Bentley, seeks further provision from the estate of David Rodney Bull who died on 4 December 2001 leaving a will dated 12 August 1988. A copy of this will was proved on 28 March 2002 by the surviving executor Janet Mary Brennan who is the defendant in this proceeding.

For some time prior to his death the deceased had lived in a house at 5 Rae Street, Hawthorn with his two unmarried sisters, Marjorie and Ruby Lynette, but at the date of his death, they had predeceased him. This meant that the substantial asset of his estate was represented by his half interest in Rae Street plus a further quarter share of this property which he inherited upon the intestacy of his sister, Ruby Lynette. The executor values Rae Street as at 1 March 2006 in the sum of $1.3M so that the interest of the deceased is valued at $650,000 in his own right and $325,000 as a beneficiary under Ruby Lynette’s estate. The total estate of the deceased, including personalty, is valued at $1,070,800 including Rae Street, with expenses of $149,280 including the estate costs of this litigation which are estimated to be $25,000. The net present value is therefore of the order of $921,280.

The deceased was born on 26 February 1920 and died unmarried without children. The distribution of his estate under the will was as follows: three-quarters of residue passed to each of two nieces and his nephew, the defendant Mrs Brennan, her sister Helen Eva Palma and her brother David John Bull, in equal shares. The remaining one-quarter of residue passed to three friends of the deceased, Paul Andrew Harris, the plaintiff Scott Bentley, and Malcolm Alexander MacLeod.

Mr Bentley was born on 30 August 1961. He was not related to the deceased but he had known him since about 1969 when he was but 8 years old and the deceased was about 49 years old. The point of contact was their mutual interest in sailing at the Carrum Sailing Club.

Mr Bentley…

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.

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Details

Case: [2006] VSC 113
Decision Date: 7 April 2006

CaseChat Overview and Summary

In the case of Re Bull; Bentley v Brennan, the applicant, Bentley, sought family provision from the estate of his father, the deceased, who had passed away. Bentley alleged that he was sexually abused by his father as a child, which had a significant impact on his emotional and mental health. The dispute centred on whether Bentley qualified as a person for whom the deceased had a responsibility to make provision under the relevant legislation. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Bentley's past abuse by his father constituted a sufficient relationship to warrant family provision. The court had to determine if the abuse created a responsibility on the deceased to make provision for Bentley, despite the estrangement and lack of ongoing contact between them. Additionally, the court considered the broader statutory criteria for family provision, including the deceased's capacity to make provision and the applicant's needs.

The court held that the statutory language did not limit family provision claims to those with a close personal relationship at the time of the deceased's death. Instead, it recognised that the duty to provide could arise from past responsibilities, including those stemming from a parent's abuse of their child. The court emphasised that the provision of family support was not solely dependent on the existence of a current relationship but could also be based on past duties and responsibilities. Consequently, the court ruled in favour of Bentley, finding that the deceased had a responsibility to make provision for him due to the past abuse.

The final orders of the court granted Bentley family provision from his father's estate, recognising the impact of the past abuse and the responsibility of the deceased to provide for his son. The exact amount and details of the provision were to be determined in further proceedings.

Orders