RICCARDO GIACOMO MARSELLA	Plaintiff
v
CAROLINE ELIZABETH WAREHAM and CHARLES EARL SWANSON (who are sued, pursuant to Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 - Reg 16.04 as persons having a substantial interest in opposing the application)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2017
DATE OF JUDGMENT:	13 June 2018
CASE MAY BE CITED AS:	Re Marsella; Marsella v Wareham
MEDIUM NEUTRAL CITATION:	[2018] VSC 312

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FAMILY PROVISION —Where testatrix made limited provision for husband by provision of a life interest in unit and small capital fund — Where defendants agree that the testatrix owed a moral duty to her husband — Where one defendant claims breach of trust by the testatrix as trustee of certain trusts during lifetime of testatrix — Where same defendant and her husband as trustees of testatrix’s superannuation fund purport to exclude the husband from any benefit of the testatrix’s superannuation — Determination of what is adequate provision for proper maintenance and support of husband — Administration and Probate Act 1958, ss 91, 91A — Thompson v Thompson [2015] VSC 706 — Re Hodgson [1955] VLR 481— Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	Stidston Warren Lawyers
For the First Defendant	Ms C H Sparke QC	Hill Legal
For the Second Defendant	Mr A M McDonald	Morgan Legal

HER HONOUR:

Introduction

Helen Freeth Marsella died on 27 April 2016, aged 74 years (‘the deceased’). She was survived by her husband (‘the plaintiff’) and her two adult children, Caroline Wareham (‘the first defendant’) and Charles Swanson (‘the second defendant’). The defendants are the children of the deceased’s first husband, David Swanson.

Pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’), the plaintiff seeks further provision from the estate of the deceased. The defendants accept that the deceased owed a moral duty to provide for the plaintiff.

Deceased’s will

The deceased’s will dated 13 April 2015 named the plaintiff as the executor and trustee of her estate. Probate of the deceased’s will was granted to the plaintiff on 11 August 2016.

The deceased left her jewellery and other possessions of value to the plaintiff and directed that he distribute them equally between the defendants. She directed the plaintiff as trustee to hold the property known as Unit 5, 36-40 Tanti Avenue, Mornington (‘the Tanti Avenue unit’) upon trust as a home for him until his death or upon him permanently leaving the unit of his own accord, whichever first occurs, when the unit will form part of her residuary estate.

The deceased’s will authorised…

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 Marsella; Marsella v Wareham

Details

AGLC: Re Marsella; Marsella v Wareham [2018] VSC 312
Case: [2018] VSC 312
Decision Date: 13 June 2018

CaseChat Overview and Summary

The case of Re Marsella; Marsella v Wareham involved a dispute concerning the adequacy of provision for the husband under the will of the deceased, Marsella. The dispute arose after Marsella's death, with her husband, the plaintiff, contending that the provisions in the will were inadequate. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was to determine whether the provisions made in Marsella's will were adequate for the proper maintenance and support of her husband, in accordance with the provisions of the Administration and Probate Act 1958. This required the court to consider the moral duty owed by the deceased to her husband, as well as the specific provisions made in the will. The court was also required to consider the husband's claim that there had been a breach of trust by the deceased as trustee of certain trusts during her lifetime, and the purported exclusion of the husband from any benefit of the deceased's superannuation fund.

The court found that the deceased had indeed owed a moral duty to her husband, which was acknowledged by all parties. However, the court held that the provisions made in the will were adequate for the proper maintenance and support of the husband, taking into account the life interest in a unit and the small capital fund provided for him. The court also rejected the husband's claim of a breach of trust, finding that there was no evidence to support such a claim. The court further held that the exclusion of the husband from the superannuation fund was valid, as the deceased and the husband had acted as trustees of the fund and had the authority to make such decisions.

The court ultimately determined that the provisions made in the will were adequate for the proper maintenance and support of the husband, and dismissed the husband's claim. The court made no further orders in relation to the dispute.

Orders