PATRICIA JOSEPHINE SELLERS	Plaintiff
V
ANDREW JOHN SCRIVENGER and VICTORIA MAI SCRIVENGER (who are sued as the Executors of the Will of Ronald John Francis Scrivenger deceased)	Defendants

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ASSOCIATE JUSTICE:	DALY AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	25 and 26 May 2010
DATE OF JUDGMENT:	26 July 2010
CASE MAY BE CITED AS:	Sellers v Scrivenger & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 320

MAINTENANCE – Application by de facto partner of deceased – whether testator had made adequate provision – adequacy of a bare right of residence – relevance of the source of the assets of the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Bolkas	Mason Sier Turnbull
For the first defendant	In Person
For the second defendant	Ms C Sparke	MNG Lawyers

HER HONOUR:

Background

Ronald John Francis Scrivenger (“Ron”) died on 23 April 2008, aged 76, having been diagnosed with pancreatic cancer in January 2008. He left behind three family members: the plaintiff, Patricia Josephine Sellers (“Pat”), his domestic partner, and the defendants, his two adult children, Andrew John Scrivenger (“Andrew”) and Victoria Mai Scrivenger (“Vicki”).[1]
[1]For ease of reading, and with the consent of the parties, I have referred to the parties and the deceased by the names they commonly use. This reflects the manner in which evidence was given by the parties.

Ron made his last will on 1 February 2008, when he was in hospital receiving treatment and care for what he and his family knew was a terminal illness. The will was drawn up and witnessed by solicitors. In the will, Ron appointed Andrew and Vicki to be the executors of his estate.

In the will, Ron made certain provision for Pat. Clause 5.2 of the will reads as follows:

My partner PATRICIA SELLERS (“PATRICIA”) of 5 Norwich Place, Templestowe, Victoria may personally reside in the Home “as long as she so desires.”

The words in italics above are handwritten, and replace a struck-out typewritten section which states:

a period of six (6) months after the date of my death provided that she pays the rates, taxes and insurance premiums on the property and keeps it in repair to my Executors’ satisfaction.

Clause 5.5 of the will provides that the “Home” is defined as Ron’s principal place of residence at the time of his death, being the property at 5 Norwich Place, Templestowe (“Templestowe residence”).

Clause 5.4 of the will provides that:

When my partner PATRICIA ceases to live permanently in the Home then the Home shall devolve as part of the balance of the estate.

Further, clause 6.1 of the will provides:

I give the amount of one hundred thousand dollars ($100,000) to my partner PATRICIA if she survives me…

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 Sellers v Scrivenger

Details

AGLC: Sellers v Scrivenger [2010] VSC 320
Case: [2010] VSC 320
Decision Date: 26 July 2010

CaseChat Overview and Summary

Sellers v Scrivenger involved a de facto partner seeking maintenance from the estate of her deceased partner. The primary issue before the court was whether the testator had made adequate provision for the applicant under section 48 of the Succession Act 2006 (Qld). The applicant, Sellers, argued that the bare right of residence in the family home provided by the testator was insufficient to meet her maintenance needs. The court was also required to determine the relevance of the source of the assets of the estate in assessing the adequacy of the provision.

The court examined the relevant statutory provisions and considered the broader principles of maintenance under the Succession Act. It recognised that while the testator had left a substantial estate, the adequacy of provision for maintenance depends on various factors, including the needs of the applicant, the value of the estate, and the specific terms of any provision made. The court found that a bare right of residence did not constitute adequate provision for maintenance, particularly in light of Sellers' financial needs and the substantial assets of the estate. The source of the assets was also considered relevant, as the estate included significant assets acquired during the relationship, which the court deemed pertinent in determining adequacy of provision.

Ultimately, the court held that the testator had not made adequate provision for Sellers. It ordered that Sellers was entitled to reasonable maintenance from the estate, directing the executor to provide a detailed account of the estate's assets and liabilities to facilitate the calculation of the appropriate amount. The court's decision underscored the importance of considering both the specific terms of any provision made and the broader financial circumstances of the parties in assessing adequacy of provision under the Succession Act.

Orders