Legal Research
Cases
Re Janson; Gash v Ruzicka

Re Janson; Gash v Ruzicka

Case [2020] VSC 449 23 July 2020

Moral Duty

Insufficient Evidence

Administration and Probate Act 1958 (Vic) ss 90, 91

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2018 02081

IN THE MATTER of the Estate of MILAN JANSON, deceased
and
IN THE MATTER of Part IV of the Administration and Probate Act 1958
ELLEN GASH	Plaintiff
v
EVA RUZICKA (who is sued as the Executor of the Estate of the late MILAN JANSON, deceased)	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2020
DATE OF JUDGMENT:	23 July 2020
CASE MAY BE CITED AS:	Re Janson; Gash v Ruzicka
MEDIUM NEUTRAL CITATION:	[2020] VSC 449

---

FAMILY PROVISION — Where deceased bequeathed a one-hundredth share of estate to his adult daughter — No dispute by defendant that provision for adult daughter fails to satisfy deceased’s moral duty to plaintiff — Where quantum in dispute — Plaintiff’s need — Insufficient evidence to determine plaintiff’s financial circumstances — Administration and Probate Act 1958 (Vic) ss 90, 91.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JD Catlin	Marshalls+Dent+Wilmoth Lawyers
For the Defendant	Ms M Rozner	Lake Street Lawyers

HER HONOUR:

Milan Janson (‘the deceased’) died on 7 August 2017. He is survived by his adult daughters, Ellen Gash (‘the plaintiff’) and Vaclava Klempt (‘Wendy’), and his partner Eva Ruzicka (‘the defendant’).

Probate of the deceased’s will dated 20 March 2015 was granted to the defendant on 7 December 2017. The will directs the defendant to divide the funds in the estate into 100 equal parts and, relevantly, to distribute the estate as follows:

(a) 30 parts to the deceased’s brother, Josef Jandovsky (‘Josef’);

(b) 30 parts to Wendy;

(c) 14 parts to the defendant;

(d) 12 parts to the deceased’s niece, Klara Jandovska (‘Klara’); and

(e) one part to the plaintiff.

The remaining 13 parts are to be distributed in varying proportions to seven other beneficiaries.

The plaintiff seeks further provision from the estate pursuant to pt IV of the Administration and Probate Act 1958 (‘the Act’). The plaintiff is unemployed and is a full-time carer for her husband, David Gash, who has been diagnosed with multiple sclerosis.

As at 6 March 2020, the funds in the estate were $3,179,462.54. These funds will be reduced by an amount of two per cent for executor’s commission payable to the defendant, by agreement of all beneficiaries, as well as legal costs of this proceeding.

Part IV of the Act

Section 91(1) of the Act provides the Court with the power to order ‘that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.’ Pursuant to s 91(2), the Court must not make an order under s 91(1) unless it is satisfied that:

(a)that the person is an eligible person; and
(b)in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person’s proper…

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 Janson; Gash v Ruzicka

Details

AGLC: Re Janson; Gash v Ruzicka [2020] VSC 449
Case: [2020] VSC 449
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of Re Janson; Gash v Ruzicka involved a dispute concerning the estate of the deceased, Janson, who left a one-hundredth share of his estate to his adult daughter. The plaintiff, Gash, sought additional provision from the estate, contending that the deceased's bequest did not adequately satisfy his moral duty. The defendant, Ruzicka, the executor of the estate, did not dispute the moral duty aspect but contested the quantum of the provision. The matter was heard in the Supreme Court of Victoria. The primary legal issues revolved around whether the deceased's bequest to the adult daughter met his moral duty to the plaintiff and, if not, what additional provision should be made. The court had to balance the deceased's freedom to dispose of his property with the moral claims of the plaintiff.

The court examined the applicable statutory framework, specifically sections 90 and 91 of the Administration and Probate Act 1958 (Vic), which provide for the court to make orders regarding the distribution of an estate in accordance with the deceased's moral duty. The court found that the deceased's bequest to his adult daughter did not adequately satisfy his moral duty to the plaintiff, Gash. However, the court noted that there was insufficient evidence to determine the plaintiff's current financial circumstances, which were crucial in assessing the quantum of the provision needed. Consequently, the court could not make a definitive order regarding the additional provision without more detailed financial information from the plaintiff.

Ultimately, the court determined that it was unable to ascertain the plaintiff's financial needs with the evidence presented. As such, the court declined to make a final order regarding the additional provision that the plaintiff sought from the estate. The case was remitted back to the lower court for further evidence to be gathered and assessed regarding the plaintiff's financial situation. This will allow for a more informed determination of the appropriate additional provision that satisfies the deceased's moral duty to the plaintiff.

Orders