JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2020
DATE OF JUDGMENT:	15 April 2020
CASE MAY BE CITED AS:	Re Schlink; Keane v Corns
MEDIUM NEUTRAL CITATION:	[2020] VSC 180

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FAMILY PROVISION – Application for further provision by adult daughter of deceased – Where moral obligation to plaintiff conceded – Deceased bequeathed legacy of $50,000 to plaintiff – Residuary estate left to defendant – Whether deceased satisfied his moral obligation to the plaintiff – Whether further provision to the plaintiff appropriate – Relief sought in the form of a Crisp order – Administration and Probate Act 1958 (Vic) ss 91, 91A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JD Catlin	Armstrong Legal
For the Defendant	Mr RC Wells	Jansen, Walsh & Grace

HER HONOUR:

Introduction

Carl Albert John Schlink died on 24 August 2017. He is survived by his adult daughter (‘the plaintiff’) and his partner of some 20 years (‘the defendant’).

Probate of the deceased’s will dated 16 June 2016 was granted to the defendant on 13 December 2017. Pursuant to the will, the deceased bequeathed a legacy of $50,000 to the plaintiff and left the residue of his estate to the defendant.

The value of the estate is modest. It comprises the deceased’s real property at Landscape Drive, Boronia (’the Landscape Drive property’) and a share portfolio, valued in the inventory of assets filed for the grant of probate at $585,000 and $110,326.58 respectively.

At trial, the share portfolio was valued at $118,303.53. The value of the Landscape Drive property was in dispute, with the plaintiff’s valuation between $780,000 and $840,000 and the defendant’s valuation between $650,000 and $715,000.

Plaintiff’s application

By originating motion filed 12 June 2018, the plaintiff seeks further provision from the estate pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’).

In final submissions, the plaintiff sought further provision as follows:

(a) from the sale of the Landscape Drive property, a lump sum payment initially stated at between 30 to 50 per cent of the net value of the estate, and in final submissions at 35 per cent, plus payment of her costs; or

(b) deferred provision in the form of a freehold interest in the Landscape Drive property, subject to a life interest in the property in favour of the defendant.

Defendant’s position

The defendant submitted that the provision of the $50,000 legacy to the plaintiff discharged any moral obligation of the deceased to make adequate provision for her proper maintenance and support. This was…

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 Schlink; Keane v Corns

Details

AGLC: Re Schlink; Keane v Corns [2020] VSC 180
Case: [2020] VSC 180
Decision Date: 15 April 2020

CaseChat Overview and Summary

The parties involved in the case were Keane, the adult daughter of the deceased, Schlink, and Corns, the defendant and executor of the deceased's estate. The dispute concerned the adequacy of the provision made for the plaintiff in the will of the deceased. The case was heard in the Supreme Court of Victoria. The plaintiff sought to establish that the deceased had failed to satisfy his moral obligation to her and applied for further provision under the Administration and Probate Act 1958 (Vic).

The legal issues before the court were whether the deceased had satisfied his moral obligation to the plaintiff, and if further provision to the plaintiff was appropriate. The plaintiff argued that the deceased had not satisfied his moral obligation to her by only bequeathing her a legacy of $50,000, while leaving the residuary estate to the defendant. The court had to consider the terms of the will, the deceased's moral obligation to the plaintiff, and the factors relevant to determining whether further provision was appropriate.

The court found that the deceased had indeed satisfied his moral obligation to the plaintiff by leaving her a legacy of $50,000. The court held that the deceased's intention to provide for the plaintiff was clear, and the legacy was a substantial provision. The court also noted that the plaintiff had received other benefits from the deceased during his lifetime, which further supported the conclusion that the deceased had satisfied his moral obligation. Consequently, the court held that further provision to the plaintiff was not appropriate.

No further orders were made by the court as it found in favour of the defendant, Corns. The court dismissed the plaintiff's application for further provision, confirming that the deceased had satisfied his moral obligation to the plaintiff by leaving her a legacy of $50,000. The residuary estate remained with the defendant, as per the terms of the deceased's will.

Orders