| 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…
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- Case
- [2022] VSC 139
- Decision Date
CaseChat Overview and Summary
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
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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