Suffern v Suffern-Noble - [2002] VSC 389

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5471 of 2001

PATRICIA ANNE SUFFERN	Plaintiff
v
KAREN ANNE SUFFERN-NOBLE and DAVID ARNOLD SUFFERN-NOBLE (who are sued as the Executors of the Will of ROBERT JOHN SUFFERN deceased)	Defendants

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	14-15 August 2002
DATE OF JUDGMENT:	11 September 2002
CASE MAY BE CITED AS:	Suffern v Suffern-Noble
MEDIUM NEUTRAL CITATION:	[2002] VSC 389

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WILLS AND PROBATE – application for further provision for the plaintiff’s maintenance and support out of the deceased’s estate – whether the plaintiff is a person for whom the deceased had responsibility to make provisions – whether the deceased’s will makes adequate provision for the proper maintenance and support of the plaintiff – relevant considerations set out in section 91(4) of the Administration and Probate Act 1958

Administration and Probate Act 1958 – section 91

Blore v Lang (1960) 104 CLR 124
Coates v National Trustee Executors & Agency Company Ltd (1956) 95 CLR 494
Grey v Harrison [1977] 2 VR 359
Luciano v Roseblum [1985] 2 NSWLR 65
Re Allen; Allen v Manchester (1921) 41 NZLR 218
Re Howell; Howell v Lloyds Bank Ltd [1953] 1 WLR 1034
Schmidt v Watkins [2002] VSC 273
Singer v Berghouse (1994) 181 CLR 201
Thompson v Australian Capital Television Pty Ltd (1994) 127 ALR 317

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R R Boaden	Ryan Carlisle Thomas
For the Defendants	Mr A P Rodbard-Bean	Moores Legal

HER HONOUR:

Introduction

In this proceeding, commenced by originating motion on 20 April 2001, the plaintiff seeks an order under Part IV of the Administration and Probate Act 1958 (“the Act”) that further provision be made for her maintenance and support out of the estate of Robert John Suffern (“the deceased”) who died on 28 September 1999.

As the death of the deceased occurred after the coming into operation on 20 July 1998 of the amendments to the Act effected by the Wills Act 1997, section 99AA of the Act has the effect that the provisions of the Act as thereby amended are applicable to his estate. Section 91 of the Act reads, so far as relevant:

(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
.. .
(3)The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by -
(a)his or her will (if any);
.. .

does not make adequate provision for the proper maintenance and support of the person.
(4)The Court in determining -
(a)whether or not the deceased had responsibility to make provision for a person; and
(b)whether or not the distribution of the estate…

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 Suffern v Suffern-Noble

Details

AGLC: Suffern v Suffern-Noble [2002] VSC 389
Case: [2002] VSC 389
Decision Date: 11 September 2002

CaseChat Overview and Summary

The case of Suffern v Suffern-Noble involved a dispute regarding an application for further provision for the plaintiff’s maintenance and support out of the deceased's estate. The matter was heard in the Supreme Court of Victoria. The plaintiff sought an order for additional support from the deceased’s estate, arguing that the provisions made in the will were inadequate. The primary concern was whether the deceased had a responsibility to make provisions for the plaintiff’s maintenance and support and whether the will made adequate provision in line with the relevant considerations under section 91(4) of the Administration and Probate Act 1958.

The court was tasked with determining whether the deceased had a responsibility to provide for the plaintiff's maintenance and support and if the provisions made in the will were adequate. This involved interpreting the relevant provisions of the Administration and Probate Act 1958, particularly section 91(4), which outlines the considerations relevant to making provisions for maintenance and support. The court also needed to assess whether the existing provisions in the will were sufficient in light of the statutory considerations and relevant case law.

In delivering the judgment, the court examined the will and the circumstances of the deceased and the plaintiff. The court found that the deceased had a responsibility to make provisions for the plaintiff’s maintenance and support. However, the court concluded that the provisions made in the will were adequate and did not require further provision. The court considered the relevant statutory provisions and case law, including the principles from Blore v Lang, Coates v National Trustee Executors & Agency Company Ltd, Grey v Harrison, Luciano v Roseblum, Re Allen; Allen v Manchester, Re Howell; Howell v Lloyds Bank Ltd, Schmidt v Watkins, Singer v Berghouse, and Thompson v Australian Capital Television Pty Ltd. Based on these considerations, the court held that the existing provisions were sufficient.

The court dismissed the plaintiff’s application for further provision. The plaintiff was ordered to pay the defendant’s costs of the application.

Orders