Schmidt v Walter

In the matter of Schmidt v Walter, the plaintiffs, two sons with intellectual disabilities and the de facto partner of the deceased, sought family provision orders from the estate of the deceased under Part IV of the Administration and Probate Act 1958 (Vic). The estate, which was significantly smaller than initially reported due to the speculative nature of its shares, was insufficient to satisfy the pecuniary legacies and provide additional support for the disabled sons. The case required the court to determine if the deceased had fulfilled his obligation to provide for the plaintiffs, and if so, how the family household should be dealt with. The de facto partner proposed that part of the proceeds from the sale of the household be used for her secure accommodation for life, with the remainder meeting the children's claims.

The court had to assess the deceased's moral obligation towards his surviving spouse, considering the factors outlined in section 91(4) of the Act. It also had to consider the entitlement of the disabled sons to National Disability Insurance Scheme (NDIS) funding, as well as the testator's freedom of testation and intention to retain the property for the plaintiffs and the executor beneficiary. The court examined previous cases such as Re Marsella; Marsella v Wareham [2018] VSC 312, King v White [1992] 2 VR 417, Shah v Perpetual Trustee Company (1981) 7 Fam LR 97, Coller v Coller [1998] VSC 80, and Grey v Harrison [1997] 2 VR 359, to inform its decision. The court concluded that the deceased had indeed made adequate provision for the plaintiffs, taking into account the factors mentioned and the testator's intention.

The court found that the deceased had met his obligation to make adequate provision for the plaintiffs, considering the unique circumstances of the case. The court was satisfied that the deceased had provided for the plaintiffs in accordance with his moral obligations and testamentary intentions. The court also considered the disabled sons' eligibility for NDIS funding and the impact of the estate's diminution in value since the deceased's death. The court determined that the family household should be retained, with a proposed framework for the distribution of proceeds in the event the property is sold. The court made orders accordingly, ensuring that the plaintiffs' claims were met and the deceased's intentions were honoured.