| 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’…
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- Case
- [2022] VSC 251
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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