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Re Christu; Christu v Christu

Re Christu; Christu v Christu

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Case Copied 31 March 2021 63 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2020 00122

IN THE MATTER of Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the estate of ARTHUR CHRISTU, deceased
JANUSZ WIESLAW CHRISTU	Plaintiff
v
KRYSY CHRISTU (in the will called CHRIS CHRISTU) and HELEN CHRISTU (as executors of the estate of the late ARTHUR CHRISTU, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2020
DATE OF JUDGMENT:	31 March 2021
CASE MAY BE CITED AS:	Re Christu; Christu v Christu
MEDIUM NEUTRAL CITATION:	[2021] VSC 162

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FAMILY PROVISION — Where deceased made no provision for adult son — Whether deceased owed a moral duty to the plaintiff considering the plaintiff’s estrangement and unfilial conduct — Quantum of any provision in dispute — Where defendants in need — Provision of a legacy ordered — Administration and Probate Act 1958 (Vic) ss 90, 91 and 91A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J W McCoy	Maurice Blackburn Lawyers
For the Defendant	Ms R Grayson Morison	Alan Farrar Lawyers

HER HONOUR:

Arthur Christu (‘the deceased’) died on 7 April 2019, aged 84 years. He was survived by his three children, Janusz Christu (‘the plaintiff’), Krysy Christu (‘Krysy’) and Helen Christu (‘Helen’). Together, Krysy and Helen are the defendants in this proceeding.

The deceased’s will dated 7 April 2016 appointed the defendants as executors and trustees of his estate. After the payment of debts and expenses, the residue of the estate was left to the defendants in equal shares. No provision was made for the plaintiff in the will.

Probate of the will was granted to the defendants on 29 July 2019. At that time, the deceased’s estate was estimated to have a value of $779,662 comprised mainly of a property in Clarke Street, Thomastown (‘Clarke Street’).

The plaintiff seeks provision from the deceased’s estate, pursuant to pt IV of the Administration and Probate Act 1958 (‘the Act’). The defendants oppose the application, asserting that the deceased did not owe the plaintiff a moral duty on account of his estrangement from the family and unfilial conduct.

For the following reasons, the Court has determined that the deceased owed the plaintiff a moral duty at the time of his death and will order the plaintiff be paid a pecuniary legacy of $110,000 from the estate of the deceased.

Applicable principles

In accordance with s 90A of the Act, an eligible person may apply to the Court for a family provision order from the estate of a deceased person. Upon application, s 91(2) of the Act provides that the Court must not make such provision unless satisfied:

(a) that the applicant is an eligible person;
…
(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and

(d)that the distribution of the deceased’s estate fails to make adequate provision…

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: [2021] VSC 162
Decision Date: 31 March 2021

CaseChat Overview and Summary

In the case of Re Christu; Christu v Christu, the deceased had made no provision for his adult son, Christu, in his will. The son sought a provision from the estate on the grounds that the deceased owed him a moral duty despite their estrangement and the son's unfilial conduct. The case was heard by the Supreme Court of Victoria, where the central issue was whether the son was entitled to a provision from the estate under the Administration and Probate Act 1958 (Vic).

The court had to determine if there was a moral obligation on the part of the deceased to provide for the son, despite their estrangement and the son's conduct. Additionally, the court needed to decide the quantum of any provision to be made, if at all. The court considered the relationship history between the deceased and the son, the circumstances of their estrangement, and whether the son's conduct could be considered unfilial.

In its reasoning, the court found that while the deceased had no obligation to provide for the son under the statute, the moral duty owed by a parent to their child could still be a factor in determining a provision. The court noted that the son's estrangement and conduct were significant but did not entirely absolve the deceased of any moral duty. The court also considered the financial needs of the defendants and determined that a legacy should be provided to the son. The final orders included a provision for the son from the estate, taking into account the circumstances and the legislative framework governing the estate.

Orders