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Smith v Jones

Smith v Jones

Case [2015] VSC 398 14 August 2015

Testator’s Family Maintenance

Administration and Probate Act 1958, s 91

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2012 06798

CONSTANCE SMITH and DAVID SMITH	Plaintiffs
v
EDWARD JONES (who is sued as the executor of the will of ABIGAIL JONES, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATES OF HEARING:	24, 25 March 2015
DATE OF JUDGMENT:	14 August 2015
CASE MAY BE CITED AS:	Smith v Jones[1]
MEDIUM NEUTRAL CITATION:	[2015] VSC 398

[1]To ensure there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms where relevant.

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TESTATOR’S FAMILY MAINTENANCE — Application by adult daughter for further provision — Where responsibility to provide for adult daughter conceded — Where defendant alleged deceased’s responsibility to adult daughter discharged — Where promises made by deceased for plaintiff to receive an equal share of estate — Where plaintiff sexually abused by father as a child — Where deceased knew of abuse and failed to take sufficient steps to remedy abuse – Further provision ordered — Extent of provision — Administration and Probate Act 1958, s 91.

TESTATOR’S FAMILY MAINTENANCE — Application by adult grandchild for provision — Whether deceased had responsibility to provide for adult grandchild — Where grandchild sexually abused by grandfather as a child — Where deceased knew of abuse and failed to take sufficient steps to remedy abuse – Provision ordered — Extent of provision — Administration and Probate Act 1958, s 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Shane Newton	Robinson Gill
For the Defendant	Mr Richard Phillips	Venizelakos

HER HONOUR:

Introduction

The first plaintiff (‘Constance’) seeks further provision from the estate of her mother, Abigail Jones deceased (‘the deceased’ or ’mother’), pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’). The second plaintiff (‘David’), is Constance’s adult son and a grandson of the deceased. He also seeks provision from the estate of the deceased.

The deceased died on 14 February 2012, aged 93 years. The deceased’s husband, John Jones (‘John’ or ‘father’), died on 26 June 2007. They were survived by their three adult children:

(a) Edward Jones (‘Edward’ or ‘the defendant’) born 10 September 1950;

(b) Constance born 29 March 1953; and

(c) Phillip Jones (‘Phillip’) born 19 December 1954.

Constance married Thomas Smith (‘Thomas’) in 1973. They have three children:

(a) Felicity Smith born 11 August 1975;

(b) David born 7 January 1977; and

(c) Robert Smith born 28 February 1980.

The will and estate of the deceased

By her will dated 27 September 2007, the deceased appointed the defendant as the executor and trustee of her estate. Probate of her will was granted to him on 6 June 2012.

At the date of death, the deceased owned five properties and had personal estate of approximately $226,000. These five properties were purchased jointly by her and her husband, John, during their marriage. On John’s death, the five properties passed to the…

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 Smith v Jones

Details

AGLC: Smith v Jones [2015] VSC 398
Case: [2015] VSC 398
Decision Date: 14 August 2015

CaseChat Overview and Summary

In the case of Smith v Jones, the deceased's adult daughter and grandchild brought claims against the deceased's estate under the Administration and Probate Act 1958, seeking additional provision for their maintenance. The daughter and grandchild argued that the deceased had a responsibility to provide for them, particularly given the abuse they had suffered at the hands of the deceased, their father and grandfather, respectively. The defendant countered that the deceased had fulfilled any responsibility they may have had.

The court had to determine whether the deceased had a responsibility to provide for the daughter and grandchild and, if so, the extent of that responsibility. The court also needed to consider whether the deceased's responsibility to provide for the daughter and grandchild had already been discharged and whether any promises made by the deceased regarding their share of the estate were binding.

The court found that the deceased had a responsibility to provide for the daughter and grandchild, which had not been discharged. The court found that the deceased had failed to take sufficient steps to remedy the abuse suffered by the daughter and grandchild. The court concluded that the deceased's failure to address the abuse was a factor in determining the extent of their responsibility to provide for the daughter and grandchild. The court ordered that the daughter and grandchild receive further provision from the estate, but did not specify the amount.

Orders