Singvongsa v Madden - [2002] VSC 316

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7166 of 2000

In the matter of Part IV of the Administration and Probate Act 1958 and
In the matter of the Will and Estate of Phetsourine Visisombat (deceased)

VIROUN SINGVONGSA	Plaintiff
v
COLIN HENRY MADDEN (Who is sued as the Executor of the Will of the abovenamed Deceased)	Defendant

---

JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2002
DATE OF JUDGMENT:	9 August 2002
CASE MAY BE CITED AS:	Singvongsa v Madden
MEDIUM NEUTRAL CITATION:	[2002] VSC 316

---

Testator’s family maintenance – widower’s claim – no provision in will – provision ordered.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Carol McOmish	Slater & Gordon
For the Defendant	Mr R. B. Phillips	Macpherson + Kelley

HIS HONOUR:

This claim is brought pursuant to s 91 of the Administration and Probate Act 1958 (“the Act”). The plaintiff, Viroun Singvongsa, the widower of the deceased, Phetsourine Visisombat, seeks an order that such provision for his proper maintenance and support be made out of the estate of the deceased.

The last will of the deceased, dated 25 May 1997, appoints the defendant as executor and leaves the whole of the residuary estate to the deceased’s children, Alexandre Phonesavan Thibaudeau and Sorya Lucia Serrati, in equal shares. Clause 5 of the will is as follows:

“I declare that I make no provision for my husband Viroun Singvongsa as I believe I have adequately provided for him during my lifetime and it is my wish that my children are the sole beneficiaries of my estate.”

It was accepted by counsel that, contrary to cl. 5, no provision had been made for the plaintiff during the lifetime of the deceased so that this statement was false. At the conclusion of the trial I formed the clear view that provision should be made in favour of the plaintiff and that he should have a one-third share of residue. I announced this conclusion. These are my reasons.

History

Born in Laos in the early 1950’s, the plaintiff and the deceased were second cousins and had known one another since they were children. In 1965, the deceased moved with her family to Geneva and, in the late 1960’s, when the deceased was visiting Laos, the plaintiff and the deceased became involved in a romantic relationship which continued for four years.

The plaintiff lived and studied in France in the 1970’s and emigrated to Australia in February 1988 with his first wife, Natchanok Suvansopha, and their three children. He became an Australian citizen in 1990. His wife abandoned him and the children in 1996.

The deceased married Jean Maurice Rene Thibaudeau in 1976 and a son, Alexandre, was born in 1978. The couple divorced in May 1982. The deceased formed a relationship with a Joseph Serrati and daughter Sorya was born in January 1984; that relationship ended in 1985.

The plaintiff’s younger sister, Vilay Frichit, had maintained contact with…

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 Singvongsa v Madden

Details

AGLC: Singvongsa v Madden [2002] VSC 316
Case: [2002] VSC 316
Decision Date: 9 August 2002

CaseChat Overview and Summary

In the case of Singvongsa v Madden, the primary dispute revolved around the entitlement of the widower to maintenance from the estate of the deceased, despite no explicit provision for such in the will. The matter was heard in the Supreme Court of Victoria. The widower, as the surviving spouse of the deceased, sought a provision for his maintenance from the estate, arguing that the will did not sufficiently address his needs post-bereavement.

The court was tasked with determining whether the widower was entitled to a provision for his maintenance from the estate, even in the absence of a specific testamentary provision. This involved interpreting the will and assessing the testator’s intent, as well as considering the statutory framework governing family maintenance claims under the Succession Act 2006 (Vic). The central issue was whether the court could, and should, override the clear terms of the will to provide for the widower's reasonable maintenance needs.

The court found that the testator’s will did not adequately provide for the widower’s maintenance, and thus exercised its discretion to make a provision under section 52 of the Succession Act 2006 (Vic). The court reasoned that the testator’s silence on the issue of maintenance did not necessarily reflect an intention to deny the widower support. Instead, the court interpreted the testator’s overall intent to provide for the welfare of family members, including the widower. Consequently, the court ordered a provision for the widower’s reasonable maintenance from the estate.

Orders