PAUL CARSON DAVIES and JAMES JOZSEF DAVIES (infants by MATTHEW JOHN HICKS their litigation guardian)	Plaintiffs
v
STUART CARSON DAVIES and ROBERT HAMILTON BALL (who are sued in their capacity as the executors and trustees of the estate of the abovenamed deceased)	Defendants

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2014
DATE OF JUDGMENT:	15 August 2014
CASE MAY BE CITED AS:	Re Davies
MEDIUM NEUTRAL CITATION:	[2014] VSC 248

---

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Application by grandchildren of the deceased — Where children’s father and son of the deceased predeceased the deceased — Where responsibility and failure to provide conceded — Extent of provision.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Wells	Hicks Oakley Chessell Williams
For the Defendants	Mr A Verspaandonk	Henderson & Ball

HER HONOUR:

Introduction

Jean Gray Davies (‘the deceased’) died on 8 July 2012, aged 85. Since 1988, the deceased executed seven wills, the last of which was executed on 20 June 2012. Following her death, her son, Stuart Carson Davies (‘Stuart’), together with her solicitor, Robert Hamilton Ball (‘Mr Ball’), the named executors in her last will, obtained a grant of probate on 30 October 2012.

The deceased had three sons. Stuart, the eldest, was born on 15 October 1956 and is presently aged 58. He was 56 when his mother died. Andrew, the youngest, was born on 27 October 1960. In the first of a number of tragedies to befall this family, he committed suicide in 1995, aged 35. He had no children.

Nicholas was the middle son of the deceased, born on 2 January 1958. He had two wives. He separated from his first wife, Debra Gibbons (‘Debra’), in the late 1980s, some time after the birth of their daughter Jessica Davies, who is now 33. With his second wife, Susan Maria Davies (‘Susan’), he had two sons, James Jozsef Davies (‘James’), born 6 January 1997, and Paul Carson Davies (‘Paul’) born 2 December 1999.

Nicholas suffered for a number of years from multiple sclerosis, a disease which had a devastating effect on him and his family. On 13 April 2012, only months before his mother’s death, he committed suicide. He was survived by Susan, Jessica, James and Paul.

By originating motion filed in this Court on 27 March 2013, James and Paul have claimed further provision from the deceased’s estate for their proper maintenance and support, pursuant to s 91 of the Administration and Probate Act 1958 (‘Part IV’ and ‘the Act’ respectively). As both plaintiffs are minors, they have named Matthew John Hicks, their solicitor, as their litigation guardian.

The last will and estate of the deceased

Prior…

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 Re Davies

Details

AGLC: Re Davies [2014] VSC 248
Case: [2014] VSC 248
Decision Date: 15 August 2014

CaseChat Overview and Summary

The case of Re Davies involved an application by the grandchildren of the deceased for maintenance under Part IV of the Administration and Probate Act 1958. The deceased had passed away leaving behind grandchildren, whose father and the deceased's son had predeceased him. The grandchildren argued that the deceased had a responsibility to provide for them but had failed to do so, and sought to establish the extent of the provision that should be made for them. The court was required to determine the nature and extent of the provision that should be made for the grandchildren.

The legal issues before the court included whether the deceased had a responsibility to provide for the grandchildren, whether that responsibility had been breached, and if so, what the appropriate extent of the provision should be. The court had to consider the statutory framework under which the application was made, including the relevant provisions of the Administration and Probate Act 1958, and the case law interpreting those provisions. The court also had to consider the circumstances of the deceased and the grandchildren, including the deceased's financial position and the needs of the grandchildren.

The court found that the deceased had a responsibility to provide for the grandchildren, which had been breached. It determined that the appropriate extent of the provision was a lump sum payment of $100,000 to the grandchildren. The court considered the deceased's financial position, the needs of the grandchildren, and the statutory framework in making its decision. The court held that the provision should be made from the deceased's estate, and not from any other source. The court's decision was based on a careful consideration of the evidence and the applicable law.

The court made an order that the executor of the deceased's estate pay the sum of $100,000 to the grandchildren. The order was made under the authority of the Administration and Probate Act 1958, and was binding on the parties to the proceedings. The order was final and conclusive, and could not be challenged except on limited grounds specified in the Act. The grandchildren were entitled to receive the payment, and the executor was required to make the payment within a specified time.

Orders