IN THE MATTER OF PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958 AND IN THE MATTER OF THE WILL AND ESTATE OF MARY HANORA ANNE QUINN, DECEASED
RICHARD SCHMIDT
Plaintiff
v
CATHERINE MARGARET WATKINS AND IAN STEWART WATKINS (WHO ARE SUED AS THE EXECUTORS OF THE WILL OF MARY HANORA ANNE QUINN, DECEASED)
Defendants
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JUDGE:
HARPER J
WHERE HELD:
MELBOURNE
DATE OF HEARING:
11 AND 12 DECEMBER 2001
DATE OF JUDGMENT:
24 JULY 2002
CASE MAY BE CITED AS:
SCHMIDT v WATKINS & ANOR
MEDIUM NEUTRAL CITATION:
[2002] VSC 273
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Testator's Family Maintenance – Application by alleged de facto partner of deceased – Nature of relationship between plaintiff and deceased – Whether plaintiff a person for whom the deceased had responsibility to make provision – Administration and Probate Act 1958 (as amended by the Wills Act 1997), s.91.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr R. Phillips
Slater & Gordon
For the Defendants
Mr S. Newton
Ken Smith & Associates
HIS HONOUR:
This is a claim under the testator's family maintenance provisions of the Administration and Probate Act 1958. It is made by a person (the plaintiff, Mr Richard Schmidt) who is not related to the deceased (Ms Mary Quinn). It is made pursuant to Part IV of the Act, as amended by the Wills Act 1997. The amendments took effect from 20 July 1998. Despite them, however, Part IV as in force immediately before that date continues to apply to the estate of persons who died before their commencement: see s.99AA of the Administration and Probate Act. If such a person left a will without making adequate provision for the proper maintenance and support of his or her spouse or children, the court might in its discretion order that such provision be made out of the deceased's estate. Like protection was given to the spouse or children of a person who died intestate, or partially so.
This, broadly, had been the position in the relevant jurisdictions since the enactment in New Zealand in 1906 of the Testator's Family Maintenance Act of that year. New Zealand was therefore the pioneer; and its example was subsequently followed in all Australian States and Territories. The emphasis until relatively recently was on the dependent members of the deceased's immediate family, although the definition of the latter term differed from time to time and place to place (so as, for example, to include - or, as the case may be, exclude – adopted, ex-nuptial and step children); and with the passing of the years it became clear that, although claimants continued to be restricted to members of the immediate family of the deceased, the court's power extended "far beyond providing for dependents who are destitute, and [allowed] the court to make substantial distributions of assets in order to effectuate the moral duty of a testator to provide for his dependents."[1]
[1]Hardingham,…
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.
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AGLC
Schmidt v Watkins [2002] VSC 273
Case
[2002] VSC 273
Decision Date
CaseChat Overview and Summary
Schmidt v Watkins involved an application by an alleged de facto partner of the deceased, seeking provision from the deceased's estate under the Administration and Probate Act 1958 (Vic) as amended by the Wills Act 1997. The central issue was whether the plaintiff, who claimed to be the deceased's de facto partner, qualified as a person for whom the deceased had a responsibility to make provision under section 91 of the Act.
The court was tasked with determining the nature of the relationship between the plaintiff and the deceased, and whether this relationship constituted a de facto partnership as defined by the relevant legislation. The court had to scrutinise the evidence presented to ascertain the existence and duration of the relationship, the extent of financial interdependency, and whether the relationship was akin to a marriage or a domestic partnership.
The court concluded that the plaintiff was not a de facto partner of the deceased, and therefore did not qualify for provision under section 91 of the Act. The court found that the relationship did not meet the criteria of a domestic partnership, and that there was insufficient evidence of a mutual commitment or financial dependency. Consequently, the application was dismissed, and the plaintiff was not entitled to any provision from the deceased's estate.