Roper v Roper (No 3) - [2024] VSC 490

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:	19 August 2024
DATE OF JUDGMENT:	22 August 2024
CASE MAY BE CITED AS:	Roper v Roper (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 490

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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 — Contested issues of fact necessitating continuation of trial — 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).

Following a trial hearing on 30 April and 1 May 2024, I delivered initial reasons for judgment on 17 May 2024, Roper v Roper [2024] VSC 249 (initial reasons for judgment).

The initial reasons for judgment foreshadowed the making of a family provision order and the granting of an opportunity to the parties to make submissions and adduce material on the appropriate amount.[1]
[1]Initial reasons for judgment, especially [46]–[47].

At a hearing on 17 May 2024, the parties consented to a determination on the papers of the amount of the family provision order foreshadowed in the initial reasons for judgment, following the filing and service of material and submissions pursuant to orders made on 17 May 2024. The orders I made on 17 May 2024 permitted the plaintiff and defendant to file and serve any submissions and affidavit material as to the appropriate amount of provision required for the plaintiff, consistent with the reasons for judgment published that day by a certain date, and permitted them to file any submissions and affidavit material in reply two weeks later.

After receiving affidavits and submissions from both parties as to the appropriate amount of provision required, but before the date for reply submissions and affidavits in order 3, on 21 June 2024, I delivered further reasons for judgment (Roper v Roper(No 2) [2024] VSC 354) (second reasons for judgment).

By email correspondence to the parties on 24 June 2024, my chambers indicated that I had overlooked the direction permitting replies when I delivered…

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 3)

Details

AGLC: Roper v Roper (No 3) [2024] VSC 490
Case: [2024] VSC 490
Decision Date: 22 August 2024

CaseChat Overview and Summary

The case of Roper v Roper (No 3) involved an application for a family provision order by an adult son, the plaintiff, against the estate of his deceased father. The plaintiff contended that he was dependent on the deceased for accommodation and had no means to secure alternative living arrangements. The matter was heard in the Supreme Court of Victoria, where the application was partially successful. The court ordered that the parties should provide affidavit material and submissions regarding the quantum of the family provision order. It was determined that certain contested issues of fact necessitated the continuation of the trial.

The primary legal issues before the court were whether the plaintiff was entitled to a family provision order and, if so, the quantum of that order. The court considered the relevant statutory provisions under the Administration and Probate Act 1958, specifically sections 90, 91, and 91A. The court examined the plaintiff's dependency on the deceased, his lack of means to secure alternative accommodation, and the deceased's ability to provide for the plaintiff's reasonable needs. The court also evaluated the financial position of the estate and the extent to which it could support the plaintiff's claim.

In reaching its decision, the court found that the plaintiff was indeed dependent on the deceased and lacked the means to obtain alternative accommodation. However, the court held that the plaintiff's claim for a family provision order was excessive. The court directed the parties to provide further affidavit material and submissions on the quantum of the order, recognising that factual disputes remained unresolved. The court recognised the importance of determining the precise amount of the family provision order and the necessity of continuing the trial to address the contested issues.

The court ordered that the parties should provide affidavit material and submissions as to the quantum of the family provision order, with particular attention to the contested issues of fact. The trial was to continue to resolve these matters and determine the appropriate amount of the order. The court did not make a final determination on the quantum of the order in this instance, leaving it to be resolved in subsequent proceedings.

Orders