Reed v Reed - [2001] VSC 54

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6544 of 2000

MATILDA DAISY REED (BY HER LITIGATION GUARDIAN SARA LUCILLE FULFORD)	Plaintiff
v.
PHILIPPA ANNE REED AND JOHN PETER LOVELL (WHO ARE SUED AS THE EXECUTORS OF THE WILL OF ANDREW GERALD FRANCIS REED)	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 FEBRUARY 2001
DATE OF JUDGMENT:	15 MARCH 2001
CASE MAY BE CITED AS:	REED v. REED & ANOR.
MEDIUM NEUTRAL CITATION:	[2001] VSC 54

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CATCHWORDS: Administration and Probate – Testator's Family Maintenance – Discovery by Executors – Exceptional circumstances – Administration and Probate Act 1958, Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. A.G. Southall QC and Ms. D. Lyle	McCluskys
For the Defendants	Mr. H.W. Fraser	Peter J. Walsh Carroll Kiernan & Forrest

HIS HONOUR:

In 1988 Andrew Gerald Francis Reed (the deceased) married Sara Lucille Fulford.

There was one child of the marriage a daughter Matilda Daisy Reed who was born on 29 July 1988 and is now aged 12.

In 1992 the deceased and Fulford separated.

In 1995 Fulford and the deceased were divorced. Later that year the deceased married the first defendant Philippa Anne Reed.

By order of the Family Court made on 12 June 1998 the deceased was ordered to pay Fulford the sum of $200 per week in respect of the maintenance and support of Matilda.

The order further provided that upon Matilda attending at a private school for her education the deceased pay a further sum of $110 per week (to Fulford). Matilda is now attending a private school.

On 29 October 1999 the deceased died.

By his last will dated 22 September 1999 the deceased appointed the defendants executors of his will and trustees of his estate.

On 3 March 2000 probate of the will was granted to the defendants.

By his will the deceased left the bulk of his estate to the first defendant. He left Matilda an interest in two thirds of one half of his residuary estate as remainderman subject to a life interest to the first defendant and subject to Matilda attaining the age of 25 years.

On 21 August 2000 Matilda, by her litigation guardian Fulford, filed an originating motion in the Court seeking an order pursuant to Part IV of the Administration and Probate Act 1958 that provision be made for her maintenance and support out of the estate of the deceased.

On 27 October 2000 Matilda's solicitors filed a summons in the Court whereby they sought directions in respect of the future conduct of the proceeding.

The plaintiff's summons came before a Master of the Court on 11 December 2000.

At the hearing before the Master that day, the principal order sought on behalf of Matilda was one requiring the defendants to give discovery of financial documentation relating to the assets and liabilities of the deceased's estate.

The reason why the plaintiff made the application for discovery was that on its face the inventory…

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 Reed v Reed

Details

AGLC: Reed v Reed [2001] VSC 54
Case: [2001] VSC 54
Decision Date: 15 March 2001

CaseChat Overview and Summary

The case of Reed v Reed involved a dispute over the entitlement to maintenance from the estate of a deceased person under the Administration and Probate Act 1958. The executors of the estate were contesting a claim for maintenance by the deceased's partner, who was not a spouse or child of the deceased. The dispute was heard in the Supreme Court of Victoria. The legal issues that the court had to decide included whether the partner was entitled to maintenance under the Act, and if so, whether the executors were required to provide full discovery of the estate's assets to the claimant. The court also had to consider whether there were exceptional circumstances that would allow for the discovery to be withheld.

The court found that the partner was not entitled to maintenance under the Act as they were not a spouse or child of the deceased. However, the court held that the partner was still entitled to a reasonable share of the estate's assets for their maintenance. The court held that the executors were required to provide full discovery of the estate's assets to the partner, unless there were exceptional circumstances that would justify withholding discovery. The court found that there were no exceptional circumstances in this case, and therefore the executors were required to provide full discovery to the partner. The court also held that the executors were not entitled to an indemnity against costs from the estate for the costs incurred in providing discovery.

The final orders of the court were that the partner was not entitled to maintenance under the Act, but was entitled to a reasonable share of the estate's assets for their maintenance. The executors were required to provide full discovery of the estate's assets to the partner, and were not entitled to an indemnity against costs from the estate. The partner was also awarded costs of the proceedings against the executors.

Orders