Ross v Ross

[2019] VSC 820

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2018 01163

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

-and-

IN THE MATTER of the estate of MARGARET EDITH ROSS, deceased

BETWEEN:

LEANNE MARGARET ROSS	Plaintiff
v
GREGORY KEITH ROSS (being sued as the Executor of the Estate of MARGARET EDITH ROSS)	First Defendant
- and -
WAYNE HARRY ROSS (being sued as the Executor of the Estate of MARGARET EDITH ROSS)	Second Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2019
DATE OF JUDGMENT:	18 December 2019
CASE MAY BE CITED AS:	Ross v Ross
MEDIUM NEUTRAL CITATION:	[2019] VSC 820

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ADMINISTRATION AND PROBATE — Testator’s family maintenance — Where plaintiff is adult daughter of testator — Whether adequate provision made for the proper maintenance and support of the plaintiff — Significant additional inter vivos gifts provided during deceased’s lifetime — Adequate provision for applicant’s proper maintenance and support under the will — Administration and Probate Act 1958 Part IV.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Gillies	Marshalls+Dent+Wilmoth Lawyers
For the Defendants	Mr J Smith	Lyttletons Lawyers

HIS HONOUR:

Introduction

1. Margaret Edith Ross died on 2 June 2017, leaving a will dated 2 December 1997.  She was survived by her three adult children Leanne Ross, Wayne Ross and Gregory Ross. In the interests of clarity and without any disrespect to the parties, I will refer to the children by their first names.

1. On 6 November 2017 probate of the will was granted to Wayne and Gregory, with leave reserved to Leanne.

1. At the trial of the proceeding, the net value of the deceased’s estate was $3,402,286.43. The principal assets of the estate are a term deposit valued at $1,865,415.63, a property in Mount Martha valued at $925,000 and shares held by the estate of the deceased’s late husband, Keith Ross, valued at $508,889.60.

1. It was agreed at trial that, if the estate was to be distributed in accordance with the will,[1] the distribution as between the three siblings would be as follows:

(a)       Leanne would receive $811,374;

(b)      Wayne would receive $1,270,614;[2]

(c)       Gregory would receive $1,278,024.

[1]Without taking into account legal costs, chattels or capital gains tax embedded in shares.

[2]The same as Gregory, less repayment of a small loan.

1. Leanne seeks further provision from the estate pursuant to Part IV of the Administration and Probate Act 1958 (the Act). She seeks a total sum of $1.4 million, being $588,626 more than she would receive if the estate was distributed in accordance with the will. The broad rationale for this claim is that $1.4 million is equal to one third share in the estate ($1.2 million), plus $200,000 for what are said to be necessary repairs and maintenance to Leanne’s six acre property located at Five Ways in Victoria. 

1. At trial, two issues arose for determination:

(a)whether the distribution of the deceased’s estate…