JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April and 1 May 2024
DATE OF JUDGMENT:	17 May 2024
CASE MAY BE CITED AS:	Roper v Roper
MEDIUM NEUTRAL CITATION:	[2024] VSC 249 (First revision (21 June 2024): Catchwords, [11], [88] & [132(b)])

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TESTATORS FAMILY MAINTENANCE — Application for a family provision order under Part IV of the Administration and Probate Act 1958 by adult son — Will provided for each child equally — Evidence of deceased’s intentions — Plaintiff provided care and support to the deceased — Plaintiff lived in property adjacent to the deceased for 17 years and did not pay rent to deceased — Plaintiff dependent on deceased for accommodation — Plaintiff lacked means to obtain alternative accommodation — Application partially successful — Sections 90, 91, 91A of the Administration and Probate Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented
For the Defendant	Ms C Symons	Buller McLeod Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Applicable principles........................................................................................................................ 2

Facts...................................................................................................................................................... 4

Consideration...................................................................................................................................... 6

The Will.......................................................................................................................................... 6
Other evidence of the deceased’s intentions............................................................................. 7
Did the deceased have a moral duty to provide for the plaintiff’s proper maintenance and support?................................................................................................................................ 9
Does the distribution of the estate fail to make adequate provision for the plaintiff’s proper maintenance and support?............................................................................................... 11
The size and nature of the estate............................................................................................... 12
Estate liabilities............................................................................................................................ 13
Parties’ agreed position regarding Paul Roper....................................................................... 15
Effect of claim on distributions to the other beneficiaries..................................................... 15
Is the plaintiff a ‘child with a disability’ / is there any physical, mental or intellectual disability of the plaintiff?........................................................................................................................ 17
Back injury............................................................................................................. 19
Acid reflux injury................................................................................................. 21
Daniel’s (confidential) third condition.............................................................. 22
Anxiety.. ................................................................................................................ 22
No disability.......................................................................................................... 22

Daniel’s capacity to support himself........................................................................................ 22
The age of the plaintiff and his financial resources, earning capacity and financial needs for the foreseeable future.............................................................................................................. 23
The financial resources, earning capacity and financial needs for the foreseeable future of the other beneficiaries........................................................................................................................ 24
Any contribution (not for adequate consideration) of the plaintiff to building up the estate or the welfare of the deceased..................................................................................................... 25
Any benefits previously given by the deceased to the plaintiff or any beneficiary.......... 26
The extent and basis of any maintenance of the plaintiff by the deceased........................ 27
The character and conduct of the plaintiff or any other person........................................... 27
Any other matter the Court considers relevant...................................................................... 28

Conclusion......................................................................................................................................... 30

CERTIFICATE.................................................................................. Error! Bookmark not defined.

HIS HONOUR:

Has the plaintiff established his claim for further provision for his proper maintenance and support out of his mother’s estate?

Introduction

An…

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 Roper v Roper

Details

AGLC: Roper v Roper [2024] VSC 249
Case: [2024] VSC 249
Decision Date: 17 May 2024

CaseChat Overview and Summary

The case of Roper v Roper involved an application by an adult son for a family provision order under Part IV of the Administration and Probate Act 1958. The son sought relief on the basis that the deceased’s will did not adequately provide for him despite his dependency on the deceased. The deceased had provided for each of his children equally in his will. The son argued that he had provided care and support to the deceased, living in a property adjacent to the deceased for 17 years without paying rent, and had been financially dependent on the deceased for accommodation. The son contended that he lacked the means to obtain alternative accommodation and therefore required additional provision from the estate.

The court was required to determine whether the son’s contributions to the deceased's welfare and his dependency justified a departure from the deceased's expressed wishes in the will. The primary consideration was whether the deceased’s intentions were sufficiently evidenced and whether the son’s need for maintenance could override the equal distribution of the estate as directed in the will. The court had to weigh the son’s personal circumstances against the statutory criteria set out in sections 90, 91, and 91A of the Administration and Probate Act 1958.

After evaluating the evidence presented, the court found that the son had indeed made significant contributions to the deceased’s welfare and had been in a dependent position, lacking the means to secure alternative accommodation. The court concluded that the deceased’s intentions, as evidenced by the will, were not absolute and could be overridden where there was clear evidence of need. Consequently, the court made a partial order in favour of the son, granting him a family provision order that recognised his dependency and the contributions he made to the deceased. The specific details of the order were tailored to meet the son’s needs, balancing the statutory requirements with the unique circumstances of the case.

Orders