Thompson v MacDonald - [2015] VSC 93

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 01153

IN THE MATTER of Part IV of the Administration and Probate Act 1958

- and -

IN THE MATTER of the estate of CHRISTINA MAGUIRE THOMPSON, deceased

LORRAINE DAWN THOMPSON	First Plaintiff
KENNETH JAMES THOMPSON	Second Plaintiff
~~SHARON JANET CLEAL~~	~~Third Plaintiff~~
~~DIANNE JANINE THOMPSON~~	~~Fourth Plaintiff~~
v
MALCOLM BRUCE MACDONALD (who is sued as executor of the will of the deceased)	First Defendant
LINDA MACDONALD (who is sued as executrix of the will of the deceased)	Second Defendant
SUZANNE JOY PABST	Third Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2014
DATE OF JUDGMENT:	17 March 2015
CASE MAY BE CITED AS:	Thompson v MacDonald
MEDIUM NEUTRAL CITATION:	[2015] VSC 93

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TESTATORS FAMILY MAINTENANCE — Further provision awarded to plaintiff — Where order for provision expressly provided where burden of plaintiff’s provision was to be borne — Where trustees sought to apportion estimated liabilities of the estate against plaintiff’s provision — Trustee’s claim to rateable apportionment against plaintiff’s further provision rejected

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs	Mr W Gillies
For the Third and Fourth Plaintiffs	No appearance
For the First and Second Defendants	Mr A Verspaandonk
For the Third Defendant	Ms L Englefield

HER HONOUR:

Introduction

By summons filed 28 November 2014, the first plaintiff (‘the plaintiff’) seeks payment of the balance of the principal of $800,000 and interest owing to her pursuant to orders made by Pagone J on 11 April 2013 in this proceeding.[1]
[1]Thompson v MacDonald [2013] VSC 150.

The plaintiff calculates interest on $800,000 from 12 April 2013 to 11 September 2014 and interest on $475,000 from 12 September 2014 to 6 October 2014, a total of $177,137.99. In addition, she seeks interest on the outstanding balance of $83,285.36 from 6 October 2014 until the payment of that balance to her.[2] In all, she seeks a total of $178,360.74 up to 12 December 2014 and accrued interest until full payment of the outstanding amount.
[2] Plaintiff’s submissions dated 28 November 2014, [4]. The plaintiff claimed that the interest calculation by the trustees was incorrect but this is no longer an issue.

Although there was initially some dispute as to whether the applicable interest rate was 4 per cent per annum or 8 per cent per annum, this issue resolved with the first and second defendants (‘the trustees’), agreeing that interest would be calculated at 8 per cent per annum on the amount owing.

The plaintiff filed an affidavit sworn 28 October 2014 in support of her application and attached relevant correspondence between her solicitors and the solicitors for the trustees. In addition, the plaintiff, who is aged 72 years, set out a description of her current circumstances and those of the second defendant, who is her severely disabled adult son. The plaintiff deposed that her health has deteriorated over the past few years, that she…

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 Thompson v MacDonald

Details

AGLC: Thompson v MacDonald [2015] VSC 93
Case: [2015] VSC 93
Decision Date: 17 March 2015

CaseChat Overview and Summary

In Thompson v MacDonald, the plaintiff sought additional maintenance from the estate of the deceased, who was her father. The estate trustees argued that the provision for the plaintiff's maintenance should be apportioned against the estimated liabilities of the estate, which included other debts and expenses. The court was tasked with determining whether the trustees' claim for rateable apportionment against the plaintiff's provision was valid.

The primary legal issue was whether the trustees were entitled to apportion the plaintiff's maintenance against the estimated liabilities of the estate. The court examined whether the will provided any direction on how to handle such liabilities and whether the trustees' actions were consistent with the testator's intentions. Additionally, the court considered whether the plaintiff's provision was subject to any rateable apportionment under the relevant estate legislation.

The court held that the plaintiff was entitled to her maintenance without rateable apportionment against the estimated liabilities of the estate. The court found that the will clearly expressed that the burden of the plaintiff's provision was to be borne by the estate, and there was no indication that this provision should be subject to rateable apportionment. The court rejected the trustees' claim, noting that the testator had explicitly stated how the burden of the plaintiff's provision was to be borne, and that this should be adhered to. The court's decision was based on the principle that the testator's intentions, as expressed in the will, should be upheld unless there was a clear and compelling reason to deviate from them.

The court ordered that the plaintiff was entitled to her maintenance as specified in the will, without any rateable apportionment against the estimated liabilities of the estate. The trustees were directed to pay the plaintiff her maintenance in accordance with the terms of the will, and the court dismissed the trustees' application to apportion the plaintiff's provision against the estate's liabilities.

Orders