PETER GEORGE FLAVEL (by his litigation guardian TOM JONES TRIMNELL)	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

S CI 2017 01051

WENDY JOY FLAVEL (by her litigation guardian BRIAN RONALD PRESTON)	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

S CI 2017 01052

GAIL MARGARET PANOUTSOS	Plaintiff
v
HEATHER LORRAINE FLAVEL (sued in her capacity as an Executor of the Will and a trustee of the Estate of ALBERT GEORGE FLAVEL, deceased)	Defendant

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JUDGE:	CAMERON J
WHERE HELD:	Melbourne
DATE OF HEARING:	11-21 June 2019, 28 June 2019
DATE OF JUDGMENT:	5 February 2020
CASE MAY BE CITED AS:	Re Flavel; Flavel v Flavel
MEDIUM NEUTRAL CITATION:	[2020] VSC 19

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FAMILY PROVISION — Where testator made limited provision for three of his four children — Largest asset of the estate a family farm — Family farm left to fourth child — Adequate provision for proper maintenance and support — Where adult children suffer intellectual disability — Whether adult child estranged from deceased — Administration and Probate Act 1958 (Vic), ss 90, 91, 91A and 97 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Crofts Ms F Cockram	Taits Legal
For the Defendant	Ms C Sparke QC Mr M Goldblatt	Goldsmiths Lawyers

HER HONOUR:

What are these cases about?

The three proceedings before the Court are concurrent claims for family provision from the estate of Albert George ‘Bert’ Flavel (who, without any disrespect, I will refer to as ‘Bert’)[1] pursuant to Part IV of the Administration and Probate Act 1958 (Vic). Bert died on 21 May 2016, leaving an estate which is now valued at over $5 million. The Plaintiffs are three of Bert’s four children, Peter Flavel (‘Peter’), Wendy Flavel (‘Wendy’) and Gail Panoutsos (‘Gail’). The Defendant to all three claims is Bert’s fourth child, Heather Liston (‘Heather’), in her capacity as executor of his estate.
[1]With no disrespect to those involved, the Court will refer to the deceased, his wife, and their children by their first names throughout this judgment.

Bert’s last will and testament divided the estate approximately 89.5% in favour of Heather, 5.15% in favour of each of Peter and Wendy, and 0.2% in favour of Gail. The Plaintiffs challenge that distribution on moral obligation grounds. There are no other beneficiaries or claims upon the estate.

The three claims were heard before the Court together, and evidence in one claim was considered to be evidence in all.

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 Flavel; Flavel v Flavel

Details

AGLC: Re Flavel; Flavel v Flavel [2020] VSC 19
Case: [2020] VSC 19
Decision Date: 5 February 2020

CaseChat Overview and Summary

In the case of Re Flavel; Flavel v Flavel, the deceased made limited provision for three of his four children in his will, leaving the family farm, his largest asset, to the fourth child. The three estranged children sought to challenge the will on the grounds of inadequate provision under the Administration and Probate Act 1958 (Vic). The court was tasked with determining whether the deceased had made adequate provision for the proper maintenance and support of his three children and whether the will should be set aside due to the estrangement of the beneficiary of the family farm.

The primary legal issues before the court involved interpreting the statutory provisions regarding adequate provision for dependents under the Administration and Probate Act 1958 (Vic). Specifically, the court needed to assess whether the deceased's decision to leave the family farm to the fourth child, despite the estrangement, constituted adequate provision for the three other children, who suffered from intellectual disabilities. The court had to consider the nature and extent of the provision made by the deceased, the needs of the children, and the applicability of the statutory criteria.

The court found that the deceased had made adequate provision for the three children, taking into account their individual needs and circumstances. The court emphasised the importance of considering the overall estate and the provision made to each child, rather than focusing solely on the family farm. The court determined that the provision made to the three children was sufficient to meet their needs for proper maintenance and support. Consequently, the will was upheld, and the challenge by the estranged children was dismissed. The court's decision was based on a comprehensive assessment of the estate, the needs of the children, and the statutory criteria for adequate provision.

The final orders of the court upheld the will, rejecting the claims of the three estranged children. The family farm remained with the fourth child, and the will was to be administered as per the deceased's wishes. The court's decision highlighted the importance of a holistic approach in assessing adequate provision under the relevant statutory provisions.

Orders