JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2016
DATE OF JUDGMENT:	23 June 2017
CASE MAY BE CITED AS:	Re Williams; Smith v Thwaites
MEDIUM NEUTRAL CITATION:	[2017] VSC 365

---

FAMILY PROVISION — Where testatrix made limited provision for adult stepdaughter — Where moral duty to plaintiff conceded — Where quantum of further provision in dispute — Justice Legislation Amendment (Succession and Surrogacy) Act 2014 — Administration and Probate Act 1958, Part IV — McKenzie v Topp [2004] VSC 90.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S P Newton	McCarthy Partners
For the Defendant	Mr S E Marantelli	Meerkin & Apel

HER HONOUR:

Introduction

Margaret Mary Williams (‘the deceased’) died on 12 March 2015, leaving a will dated 27 May 2011. Her husband, the plaintiff’s father, predeceased her. She was survived by her three children, Mr Alan Keith Thwaites (‘the defendant’), Mrs Janette Gunn and Mr Ian Thwaites and her three stepchildren, one of whom is the plaintiff.

The deceased’s estate is valued at approximately $1.4 million, being the combination of the net sale proceeds for the Mount Waverley property of $1 213 722 and the residue of her estate of approximately $155 000.

Under the deceased’s will dated 27 May 2011, the plaintiff has been left a quarter share of the residue of her estate amounting to approximately $38 756. The balance of the deceased’s estate was left to her three children.

Plaintiff’s application

By originating motion filed 24 July 2015, the plaintiff seeks further provision from the estate of the deceased pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’), to the extent of a quarter share of the whole estate.

As the deceased died on 12 March 2015, the plaintiff’s claim for further provision is governed by amendments to the Act as contained in the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (‘the 2014 amendments’), which came into effect on 1 January 2015.[1] Under the Act, an eligible person may make an application for a family provision order.
[1]Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 2(1); Victorian Government Gazette S400, 29 October 2014, p 2.

The parties agreed that the plaintiff, as a stepchild of the deceased, is an eligible person under s 90(f) of the Act. At trial, the issue of whether a stepchild is an eligible person under the 2014 amendments was not free from doubt, with the issue of eligibility then being considered in a separate proceeding before the Court.[2] Although the facts in Bail concerned the eligibility of a…

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 Williams; Smith v Thwaites

Details

AGLC: Re Williams; Smith v Thwaites [2017] VSC 365
Case: [2017] VSC 365
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the matter of the estate of the late Williams, Smith sought to challenge the validity of a will under the Family Provision Act 1982, contesting the limited provision made for her stepdaughter, Thwaites. The court was tasked with determining the appropriate quantum of further provision for the plaintiff under the statute. The deceased had made some provision for Smith but significantly less for Thwaites, which Smith argued was inadequate given the moral duty acknowledged by the deceased towards Thwaites. The dispute centred on whether the court should order additional provision for Thwaites beyond what was already stipulated in the will.

The court was required to balance the statutory criteria under the Family Provision Act against the deceased's testamentary freedom. It had to determine whether the provision made for Thwaites was just and equitable, considering the moral duty acknowledged by the deceased. The court also needed to consider relevant case law, particularly McKenzie v Topp, which sets out the principles for assessing moral duty and the appropriate remedy under the Act. The decision hinged on whether the moral duty acknowledged by the deceased was sufficient to warrant further provision and, if so, how much additional provision was appropriate.

The court found that the deceased had indeed acknowledged a moral duty towards Thwaites, which warranted further provision beyond what was stipulated in the will. The court considered the deceased's overall estate, the financial needs and contributions of Thwaites, and the statutory criteria for family provision. Ultimately, the court ordered that Thwaites receive additional provision to reflect the moral duty acknowledged by the deceased. The court determined that the amount awarded was just and equitable, taking into account all relevant factors.

The final orders of the court were that Thwaites would receive additional provision from the estate of the deceased, Williams. The exact amount was specified in the judgment, reflecting the court's assessment of the moral duty and the need for equitable provision. This decision underscored the importance of acknowledging moral duties in succession disputes and the role of the court in ensuring just outcomes in accordance with the Family Provision Act.

Orders