Re Eddison; Kildair v Eddison & Anor - [2022] VSC 251

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2021 02950

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

- and -

IN THE MATTER of the Will and Estate of DOREEN EDDISON, deceased

ADAM KILDAIR	Plaintiff
v
MARK MACLEAY EDDISON and TINA GAYE EDDISON (who are sued as the Executors of the Will and Estate of Doreen Eddison, deceased)	Defendants

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JUDICIAL REGISTRAR:	Judicial Registrar Englefield
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2022
DATE OF JUDGMENT:	25 May 2022
CASE MAY BE CITED AS:	Re Eddison; Kildair v Eddison & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 251

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FAMILY PROVISION – Application by defendants for summary judgment - Whether the plaintiff is an eligible person to make a claim – Meaning of ‘member of the household’ Whether the plaintiff was wholly or partly dependant on the deceased for his proper maintenance and support at the time of the deceased’s death - Summary judgment – Civil Procedure Act 2010 (Vic) ss 62, 63(2)(b) and 64 - Administration and Probate Act 1958 (Vic) ss 90A(1), 90(K), 91(1), 91(2)(a), 91(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	U Stanisich	Anthony G Black Lawyers
For the Defendants	J K Arthur	Mackinnon Jacobs Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
The Estate....................................................................................................................................... 2
Summary of the Plaintiff’s Evidence.......................................................................................... 2
Overview of Submissions............................................................................................................ 7
Defendants’ Submissions................................................................................................... 7
Membership of the Household............................................................................. 7
Dependency............................................................................................................ 8

Plaintiff’s submissions........................................................................................................ 8
Membership of the household.............................................................................. 8
Dependency............................................................................................................ 9

Summary Judgment Principles................................................................................................... 9
Construction Principles.............................................................................................................. 10
Member of the Household.................................................................................. 11
Dependence........................................................................................................... 15

Concluding Observations.......................................................................................................... 17

JUDICIAL REGISTRAR:

Introduction

This is an application by the defendants for summary dismissal of a family provision claim made under pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’), essentially on the grounds that the plaintiff (‘Adam’)[1] has no real prospect of successfully establishing eligibility to make such a claim or of successfully proving dependency on the deceased, as required by the Act.
[1]For ease of reading, and without intending any disrespect, I will refer to the plaintiff and the deceased by their first names.

The Act restricts applications for a family provision order to ‘eligible persons’ as defined.[2] Adam relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act, which reads:

(k)a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

[2]Administration and Probate Act 1958 (Vic) (‘Act’) ss 90A; 91(2)(a).

The Court must not make an order for family provision for a person relying on paragraph (k) of the definition of eligible person unless satisfied, among other things, that the person was wholly or partly dependent on the deceased for the person’s proper ‘maintenance and support’…

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: [2022] VSC 251
Decision Date: 25 May 2022

CaseChat Overview and Summary

The matter before the court involved a claim by Kildair against Eddison and another defendant, which sought provision from the estate of a deceased individual. The defendants filed an application for summary judgment, arguing that the plaintiff, Kildair, was not eligible to make a claim under the relevant statutory provisions as he was not a dependent of the deceased. The case was heard in the Supreme Court of Victoria.

The legal issues central to the case were whether the plaintiff qualified as an eligible person under the statutory provisions, and specifically, whether he was a 'member of the household' and dependent on the deceased at the time of death. The interpretation of these terms and the application of statutory provisions such as those from the Administration and Probate Act 1958 (Vic) were pivotal. The court had to assess the evidence and arguments presented to determine if the plaintiff's claim had any merits that could withstand summary judgment under the Civil Procedure Act 2010 (Vic).

The court examined the evidence and found that there was no genuine issue of fact that needed to be resolved before trial. It held that the plaintiff did not meet the statutory definition of a'member of the household' or demonstrate sufficient dependency on the deceased at the time of death. Consequently, the court granted the defendants' application for summary judgment, dismissing the plaintiff's claim in its entirety. The decision was made on the basis that the plaintiff's claim did not have a reasonable chance of success.

No further orders were made by the court.

Orders