Roper v Roper (No 2) - [2024] VSC 354

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2022 00312

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and –

IN THE MATTER of the Will and Estate of Sheila Eileen Roper, deceased

BETWEEN:

DANIEL EDWARD ROPER	Plaintiff
v
MICHAEL ILIAS ROPER (who is sued as the Executor of the Will of Sheila Eileen Roper, deceased)	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	21 June 2024
CASE MAY BE CITED AS:	Roper v Roper (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 354

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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 — Plaintiff dependent on deceased for accommodation — Plaintiff lacked means to obtain alternative accommodation — Application partially successful — Parties invited to provide affidavit material and submissions as to quantum of family provision order — Consideration of estimates of cost of acquiring basic accommodation in the same area, ongoing living costs, and provision for vicissitudes — 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

HIS HONOUR:

The plaintiff, Daniel Roper, sought further provision from the estate of his mother by way of a family provision order under s 91 of the Administration and Probate Act 1958 (Act).

On 17 May 2024, I published reasons for judgment in this proceeding.[1] As explained in those reasons, the deceased’s estate comprised a little over $1.5 million in net assets available for distribution between the deceased’s seven children. She had intended that the estate be divided equally amongst them. However, distribution in accordance with the deceased’s will would fail to discharge the deceased’s moral duty to provide the plaintiff with the means to acquire basic accommodation in the area where he has lived most of his life, Glenroy. Five of the other six beneficiaries were of adequate means to live a comfortable life. The sixth, Paul Roper, was the subject of an agreement that his one-seventh share of the residuary estate would not be affected by any family provision order I might make.
[1]Roper v Roper [2024] VSC 249.

I sought clarification from the parties as to how the agreement about Paul Roper’s share might relate to any costs of the proceeding incurred by the estate. The defendant has since stated that the agreement does not preserve his share from the effects of the costs of the proceeding on the estate.[2]
[2]Defendant’s Submissions as to Quantum dated 17 June 2024, [11].

I made orders enabling the parties to file affidavit material and submissions on the appropriate amount of the provision required for the plaintiff, consistent with the reasons for judgment. The reasons included the following remarks in this regard:

46I accept that Daniel 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 Roper v Roper (No 2)

Details

AGLC: Roper v Roper (No 2) [2024] VSC 354
Case: [2024] VSC 354
Decision Date: 21 June 2024

CaseChat Overview and Summary

The case of Roper v Roper (No 2) involved an application for a family provision order under Part IV of the Administration and Probate Act 1958. The plaintiff, an adult son, sought the order from the estate of his deceased father. The central issue was whether the son, who was dependent on his father for accommodation, was in need of maintenance from the estate, given his lack of means to obtain alternative housing. The court was tasked with determining the appropriate quantum of the family provision order, considering various factors such as the cost of acquiring basic accommodation in the same area, ongoing living expenses, and provisions for unforeseen circumstances.

The legal issues before the court revolved around the interpretation and application of sections 90, 91, and 91A of the Administration and Probate Act 1958. The court needed to assess whether the plaintiff met the criteria for a family provision order and, if so, what amount would be just and equitable under the circumstances. The court considered the evidence provided by both parties regarding the plaintiff’s financial situation, the value of the estate, and the reasonable needs of the plaintiff. It also examined the provisions already made for the plaintiff by the deceased through the will.

In reaching its decision, the court determined that the plaintiff was indeed in need of maintenance from the estate due to his dependency on his father and lack of alternative accommodation. The court found the application partially successful and invited the parties to provide affidavit material and submissions regarding the quantum of the family provision order. The court emphasised the need to consider estimates of the cost of acquiring basic accommodation, ongoing living expenses, and provisions for potential vicissitudes. The court's reasoning was grounded in a careful analysis of the statutory provisions and the specific circumstances of the case, ensuring a fair and equitable outcome.

The final orders of the court required the parties to provide further information and submissions on the quantum of the family provision order, ensuring that the plaintiff’s reasonable needs were met while also considering the interests of other beneficiaries of the estate. The court's decision highlighted the importance of a balanced approach in family provision matters, taking into account both the statutory framework and the unique circumstances of the case.

Orders