Re Janson; Gash v Ruzicka (No 2) - [2022] VSC 139

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

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2021
DATE OF JUDGMENT:	21 March 2022
CASE MAY BE CITED AS:	Re Janson; Gash v Ruzicka (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 139

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FAMILY PROVISION – Where adult daughter seeks further provision from estate – Where quantum of provision in dispute – Consideration of plaintiff’s financial circumstances and needs – Administration and Probate Act 1958 (Vic) ss 90, 91, 91A.

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

HER HONOUR:

Introduction

The plaintiff is an adult daughter of the deceased. Pursuant to his will dated 20 March 2015, the deceased divided his estate into 100 shares and left one share to the plaintiff. The plaintiff seeks further provision from the estate of the deceased.

The trial of this proceeding took place on 21 April 2020. The Court concluded that it was unable to make any orders for further provision for the plaintiff as the evidence of her financial circumstances was deficient.[1] The Court provided the plaintiff with a further opportunity to file evidence of her financial circumstances.[2]
[1]Re Janson; Gash v Ruzicka [2020] VSC 449, [38]–[46] (McMillan J) (‘Re Janson’).
[2]Ibid [15], [45]–[46] (McMillan J).

The trial was re-listed and heard on 3 May 2021.

Plaintiff’s further evidence

The plaintiff relied on three further affidavits regarding her financial position. Her first affidavit was sworn on 17 August 2020 (‘the first affidavit’), the second on 1 December 2020 and the third on 26 April 2021. The affidavits seek to outline the plaintiff’s assets and liabilities, her income and expenses, and her future financial needs.

Assets and liabilities

The plaintiff deposes to her assets and liabilities with her husband, David Gash, as follows:

Assets

Plaintiff’s assets Bank account (as at 20 April 2020) $3,214

Husband’s assets Bank account (as at 20 April 2020) $2,319

Motor Vehicle $2,600

Joint assets Home contents $4,000

Cash on hand $5,520

Liabilities

Joint liability Loan from daughter $192,367

(Naomi Bant)

The two bank account balances are substantiated by bank statements exhibited to the first affidavit. The value of the motor vehicle, the home contents and the cash on hand are estimates provided by the plaintiff.

The plaintiff deposes to neither herself nor her husband possessing any superannuation. This is purported to be substantiated by two documents showing the transfer of the $5,098.11 balance of the ‘David Gash and Ellen Gash ATF Safe Haven Superannuation Fund’ to ‘EG’ — presumably, the plaintiff — on 24 October 2018 and 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.

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Details

Case: [2022] VSC 139
Decision Date: 21 March 2022

CaseChat Overview and Summary

In the case of Re Janson; Gash v Ruzicka (No 2), the dispute before the court involved an application by an adult daughter, seeking additional financial provision from her deceased mother's estate. The primary concern was the quantum of the provision that should be awarded to the daughter. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court centred around the interpretation and application of sections 90, 91, and 91A of the Administration and Probate Act 1958 (Vic). The court had to determine whether the daughter had established a sufficient need for further provision, taking into account her financial circumstances and any relevant needs that were not previously met. The court also needed to consider whether the initial provision made to the daughter was adequate, and if not, what additional amount was appropriate.

The court considered the daughter's financial situation, including her income, assets, and any ongoing financial obligations. It also examined the initial provision made to her and whether it was sufficient to meet her needs. The court determined that the daughter had demonstrated a need for additional financial provision, as her financial circumstances had not been fully addressed by the initial provision. The court concluded that the initial provision was inadequate and ordered an additional sum to be paid to the daughter from the estate.

Orders