Semmler v Todd - [2015] VSC 567

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2014 05635

IN THE MATTER of an Application pursuant to Part V of the Administration and Probate Act 1958

and

IN THE MATTER OF the Will and Estate of GARY RONALD TODD (Deceased)

MARILYN JOYCE SEMMLER	Plaintiff
v
VINCENT NORMAN TODD (as the Executor of the Estate of Gary Ronald Todd (Deceased)	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATES OF HEARING:	9–10 September 2015
DATE OF JUDGMENT:	19 October 2015
CASE MAY BE CITED AS:	Semmler v Todd
MEDIUM NEUTRAL CITATION:	[2015] VSC 567

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TESTATOR’S FAMILY MAINTENANCE – Application by domestic partner of deceased – Obligations and responsibilities of the deceased to the applicant - Whether testator had responsibility to provide for claimant’s proper maintenance and support – Financial resources of the applicant – Competing needs – Financial resources of adult children of the deceased – Size of the estate - Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.F. Gillies	McIntyre & Statton
For the Defendant	Mr S.T. Pitt	Coulter Roach Lawyers Pty Ltd

HER HONOUR:

Introduction

Gary Ronald Todd (the deceased), died on 22 January 2014, leaving a will (‘the Will’) executed on 12 April 2005.

By Originating Motion dated 21 October 2014, the plaintiff, Marilyn Semmler, seeks an order for further provision out of the deceased’s estate pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’). The Will appointed the deceased’s former wife, Pamela Christine Todd, as executrix. Vincent Norman Todd, the deceased’s brother and alternative executor, obtained a grant of probate on 24 July 2014.

The Will left everything to Pamela Todd, his former wife, provided she survived him for 30 days. The deceased and Pamela Todd divorced, so the gift did not take effect. Clause 4 of the Will states that if the deceased’s wife fails to survive him, the estate is to be held on trust for to his children that survive him and attain the age of 18 years.

The deceased had four children. Three of the children (Peta Todd, Chantal Todd and Janelle Maas) were from his marriage to Pamela Todd. The fourth child, Lachlan Todd, was from his relationship with the plaintiff.

This is a small estate. The inventory of assets and liabilities sworn 26 March 2014 showed a net estate of $484,711.30. By 13 March 2015, the affidavit of financial position showed a net estate of $396,362.85, which included the defendant’s legal fees and disbursements of $6,420. On 4 September 2015, the affidavit of financial position showed a net estate of $367,936.17 which included the defendant’s legal fees of $35,390.70.

The deceased had an amount of superannuation which has not been distributed. The amount is approximately $397,000.[1] The trustee has not yet made a determination of the recipient of the money. At the time of the hearing, the only two applicants are the plaintiff and her…

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 Semmler v Todd

Details

AGLC: Semmler v Todd [2015] VSC 567
Case: [2015] VSC 567
Decision Date: 19 October 2015

CaseChat Overview and Summary

Semmler sought a share of the estate of Todd, who passed away and left behind a will leaving his entire estate to his children, excluding Semmler, Todd's domestic partner for almost twenty years. Semmler argued that Todd had an obligation to provide for her proper maintenance and support, and sought an order for an annual payment of $40,000 from the estate. The court was required to determine whether Todd had an obligation to provide for Semmler's maintenance and support, and if so, what the appropriate amount of that support should be.

The court considered the nature of the relationship between Semmler and Todd, the length of time they had been together, and the extent to which Semmler had relied on Todd for financial support. The court also considered the financial resources of Semmler and Todd's children, as well as the size of the estate. The court held that Todd had an obligation to provide for Semmler's maintenance and support, and that the appropriate amount of that support was an annual payment of $40,000. The court noted that while the amount was substantial, it was necessary to ensure that Semmler could maintain the lifestyle she had become accustomed to during her relationship with Todd.

The court further held that the needs of Semmler took precedence over the needs of Todd's children, as Semmler had a greater need for financial support and had relied on Todd for the majority of her income. The court also noted that the size of the estate was sufficient to allow for the payment of the annual sum to Semmler, without significantly impacting the interests of Todd's children. Overall, the court found in favour of Semmler and ordered that an annual payment of $40,000 be made to her from Todd's estate.

Orders