Ross v Ross - [2002] VSC 544

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WARRNAMBOOL (Sitting at Melbourne)

COMMON LAW DIVISION

IN THE MATTER OF: an Application pursuant to Part IV of
the Administration and Probate Act 1958

No. 1365 of 2002

JEAN ANNE ROSS	Plaintiff
v
KEITH WILLIAM ROSS (who is sued as Executor of the Will of William Henry Ross late of “Pringa”, 950 Terang-Woolsthorpe Road, Ballangeich, Victoria, Grazier)	Defendant

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IN THE SUPREME COURT OF VICTORIA

AT HAMILTON (Sitting at Melbourne)

COMMON LAW DIVISION

IN THE MATTER OF: an Application pursuant to Part IV of
the Administration and Probate Act 1958.

- and -

IN THE MATTER OF: The Will and Estate of William Henry Ross deceased

No. 901 of 2001

JEAN ROSELYN McLEAN	Plaintiff
v
KEITH WILLIAM ROSS (who is sued as Executor of the Will of the abovenamed deceased)	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2002
DATE OF JUDGMENT:	3 December 2002
CASE MAY BE CITED AS:	Ross v Ross; McLean v Ross;
MEDIUM NEUTRAL CITATION:	[2002] VSC 544

Family provision – elderly widow – failure to make adequate provision for proper maintenance and support - nature of provision – need for security of accommodation – income – nest eggs – receipt of age pension.

Family provision – adult daughter – whether moral duty – amount of provision – balance of considerations in each context.

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APPEARANCES:		Counsel		Solicitors
For Jean Anne Ross	Mr T. Tobin and Ms R. Orr		Stringer Clarke
For Jean Roselyn McLean	Ms D. Lyle		Melville, Orton & Lewis
For Keith William Ross	Mr R. Wells		Desmond Dunne & Dwyer

HIS HONOUR:

The Two Claims

Before me are two claims[1] made under Part IV of the Administration and Probate Act 1958 (the Act), arising in connection with the death of William Henry Ross on 4 February 2002, and the will of the deceased dated 26 June 1995.
[1]Though brought by separate proceedings, the claims were heard together, the evidence in the one proceeding being evidence in the other.

The plaintiffs are Jean Anne Ross, widow of the deceased[2] and Jean Roselyn McLean,[3] a daughter of the deceased.
[2]In proceedings issued at Warrnambool No. 1365 of 2002.
[3]In proceedings issued at Hamilton No. 901 of 2002.

The defendant in each proceeding is Keith William Ross, deceased's son, his executor under the will.

The Deceased and His Family

The deceased, born 1 December 1914, was in his 88th year at the time of his death. He had been a farmer ‑ though the extent of his commitment to farming was in dispute at trial ‑ at Ballangeich in the Western District.

The widow, born 23 August 1915, is now aged 87. She and the deceased married on 30 April 1938. So they were married for nearly 64 years.

The deceased and his wife had three children. The oldest is Jean Roselyn McLean, born 29 October 1938 and so now aged 64. Then there is Nancy, born 17 June 1940 and so…

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 Ross v Ross

Details

AGLC: Ross v Ross [2002] VSC 544
Case: [2002] VSC 544
Decision Date: 3 December 2002

CaseChat Overview and Summary

In Ross v Ross, the deceased left a will that excluded his elderly widow, the applicant, and their adult daughter, who was the respondent. The widow sought an order under the Family Provision Act, contending that the deceased had failed to make adequate provision for her proper maintenance and support. The court had to determine the nature of the provision the deceased was required to make and whether the widow's needs for security of accommodation, income, nest eggs, and receipt of age pension had been met.

The court considered the legal duty of the deceased to provide for his widow, weighing the widow's need for security of accommodation and income against the deceased's estate. It assessed the adequacy of the provision made by the deceased, including whether the widow's need for a nest egg and receipt of age pension had been considered. The court also examined the moral duty owed to the daughter and balanced the considerations in each context.

The court found that the deceased had failed to make adequate provision for the widow's proper maintenance and support. It concluded that the widow's need for security of accommodation and income was not adequately addressed by the estate. The court further determined that the widow's need for a nest egg and receipt of age pension had not been sufficiently considered. As a result, the court ordered that the deceased's estate be varied to provide for the widow's proper maintenance and support. The final orders included a specific sum to be paid to the widow and a direction for the estate to be adjusted accordingly.

Orders