JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2020
DATE OF JUDGMENT:	30 March 2021
CASE MAY BE CITED AS:	Re Finnie; Petrovska v Morrison
MEDIUM NEUTRAL CITATION:	[2021] VSC 153

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FAMILY PROVISION —Where domestic partner of deceased seeks provision from estate — Where sole issue is quantum of provision — Where residuary beneficiaries have competing needs — Further provision provided by plaintiff receiving percentage of estate — Administration and Probate Act 1958 (Vic) ss 91, 91A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms JA Findlay	Whyte, Just & Moore Solicitors
For the Defendant	Mr PA Cassidy	Coulter Roache Lawyers

HER HONOUR:

Introduction

James Finlay Finnie (‘the deceased’) died on 12 September 2017 aged 65 years. He was survived by his partner of almost 20 years (‘the plaintiff’) and three of his four adult children from an earlier marriage. His fourth child predeceased him.

The deceased’s will was made prior to the commencement of the domestic relationship between the plaintiff and the deceased. Pursuant to the will, the deceased left his estate equally between his four children, with a gift over if any of the children predeceased him. The child who predeceased the deceased left two children and his share of the estate passes equally between them, upon attaining the age of 21 years.

The will makes no provision for the plaintiff.

Probate of the deceased’s will dated 25 June 1992 was granted to the defendant on 8 January 2018, with leave reserved to the other named executor. The inventory filed with the application for probate valued the estate at $96,512.10 comprising assets of $965,729.35 and liabilities of $217.25.

Plaintiff’s application

By originating motion filed 3 July 2018, the plaintiff seeks provision amounting to approximately $670,500 from the estate of the deceased pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) comprising an in species transfer of the property located at 1/69 Darriwill Street, Bell Post Hill (‘the Darriwill Street unit’), valued at $385,000; a cash payment of $182,500 to pay the plaintiff’s current debt; and payment of her costs of the proceeding, estimated at $103,000.[1]
[1]The plaintiff’s costs estimate was updated in her closing submissions to $103,835.

The defendant accepts that the deceased owed a moral duty to provide for the plaintiff and the deceased failed to make adequate provision for her proper maintenance and support. At trial the defendant contended that provision of the fee simple in the Darriwill Street unit alone from the estate constituted adequate provision to the plaintiff. In closing submissions, the defendant submitted that provision of an interest less than an absolute interest in the Darriwill Street unit, such as a life interest, would constitute adequate provision for the…

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 Finnie; Petrovska v Morrison

Details

AGLC: Re Finnie; Petrovska v Morrison [2021] VSC 153
Case: [2021] VSC 153
Decision Date: 30 March 2021

CaseChat Overview and Summary

In the case of Re Finnie; Petrovska v Morrison, the court was presented with a dispute concerning the distribution of a deceased's estate. The primary parties involved were the plaintiff, Petrovska, who was the deceased's domestic partner, and the defendant, Morrison, who was the administrator of the estate. Petrovska sought additional provision from the estate beyond what was initially allocated to her, contending that the quantum was insufficient given her needs and contributions to the deceased. The court had to determine the appropriate amount of provision for Petrovska under the relevant statutory provisions.

The central legal issues before the court were whether Petrovska, as a domestic partner of the deceased, was entitled to additional provision from the estate and, if so, the appropriate quantum. The court had to consider the statutory provisions outlined in the Administration and Probate Act 1958 (Vic), particularly sections 91 and 91A, which address the rights of domestic partners in estate distribution. The court also needed to weigh the competing interests of Petrovska against those of the other residuary beneficiaries of the estate.

The court examined the contributions Petrovska made to the deceased, both financial and otherwise, as well as her needs in light of the estate's overall distribution. It found that Petrovska was entitled to further provision from the estate. In determining the quantum, the court balanced her needs against the needs of other beneficiaries and the estate's total value. Ultimately, the court ruled that Petrovska would receive an additional percentage of the estate, providing her with sufficient provision to meet her needs.

Orders