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Thompson v MacDonald

Thompson v MacDonald

Case [2013] VSC 150 9 April 2013

Testator's Family Maintenance

Moral Obligation

Intellectual Disability

Administration and Probate Act 1958 (Vic)

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 01153 of 2011

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
and
IN THE MATTER of the estate of CHRISTINA MAGUIRE THOMPSON, deceased

LORRAINE DAWN THOMPSON & ORS (according to the schedule attached)	Plaintiffs
v
MALCOLM BRUCE MACDONALD & LINDA MACDONALD (who are sued as executors of the estate) & ANOR (according to the schedule attached)	Defendants

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20 February 2013
DATE OF JUDGMENT:	9 April 2013
CASE MAY BE CITED AS:	Lorraine Dawn Thompson & Ors v Malcolm Bruce MacDonald & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 150

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TESTATOR’S FAMILY MAINTENANCE – Application by former daughter-in-law and adult grandchildren of the deceased – Whether deceased had a responsibility to provide for applicants’ maintenance and support – Whether a wise and just testator in the position of the deceased would have made provision for the applicants – Contribution of former daughter-in-law to the welfare of the deceased - Contribution of former daughter-in-law to the maintenance and building up of the deceased’s estate - Whether deceased had a moral obligation to make provision for adult grandchildren – Intellectual disability of adult grandchild - Administration and Probate Act 1958 (Vic) Part IV ss 91, 91(4)(e)-(p).

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APPEARANCES:	Counsel	Solicitors
For the First, Third & Fourth Plaintiffs	Mr S Newton	Milne Lawyers
For the Second Plaintiff	Mr W Gillies	Bennett’s Business & Property Lawyers
For the First & Second Defendants	Mr R Phillips	Lobb & Kerr Lawyers
For the Third Defendant	Ms L Englefield	South East Lawyers

HIS HONOUR:

The plaintiffs seek orders under Part IV of the Administration and Probate Act 1958 (Vic) for provision for their maintenance and support from the estate of the late Christina Maguire Thompson. The deceased died on 2 March 2010 leaving a Will made on 26 August 2009, having previously made Wills in 2003 and 2007. Probate of the last Will was granted on 20 September 2010. The deceased had two sons who survived her but one of whom, namely William Dennis Thompson (“William”), died on 3 October 2012. The previous year William had commenced a similar proceeding under Part IV of the Administration and Probate Act 1958 (Vic) in relation to his mother’s estate however that proceeding is no longer on foot.

The first plaintiff, Lorraine Dawn Thompson (“Lorraine”), is the former wife of the late William Thompson and the former daughter-in-law of the late Christina Thompson. The other plaintiffs are three of the four children of Lorraine and William, namely Kenneth James Thompson (“Kenneth”), Sharon Janet Cleal (“Sharon”) and Dianne Janine Thompson (“Dianne”). Their remaining child, Suzanne Joy Pabst (“Suzanne”), is the third defendant, who seeks to uphold the Will in its present terms but who contends, in the alternative, that any provision that may need to be made for the plaintiffs should be made from the estate as a whole and…

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 [2013] VSC 150
Case: [2013] VSC 150
Decision Date: 9 April 2013

CaseChat Overview and Summary

In the matter of Thompson v MacDonald, the applicants, the former daughter-in-law and adult grandchildren of the deceased, sought financial provision from the deceased's estate under the Administration and Probate Act 1958 (Vic). The dispute arose from the question of whether the deceased had a legal or moral obligation to provide for the maintenance and support of the applicants, particularly in light of the former daughter-in-law's contributions to the deceased's welfare and the estate, and the intellectual disability of one of the adult grandchildren. The matter was heard and determined by the Supreme Court of Victoria.

The court was required to decide whether the deceased had a responsibility to provide for the applicants, considering the contributions made by the former daughter-in-law to the welfare of the deceased and the estate. Additionally, the court had to consider whether a wise and just testator in the position of the deceased would have made provision for the applicants. Furthermore, the court needed to assess whether the deceased had a moral obligation to provide for the adult grandchildren, particularly in the context of one grandchild's intellectual disability.

The court examined the evidence presented regarding the former daughter-in-law's contributions to the deceased's welfare, the estate, and the adult grandchildren. It found that the former daughter-in-law had made significant contributions to the welfare of the deceased and the estate, and that these contributions were acknowledged by the deceased. However, the court concluded that the deceased did not have a moral obligation to provide for the adult grandchildren, particularly in light of the intellectual disability of one of them. The court determined that a wise and just testator in the deceased's position would not have made provision for the applicants. As such, the court dismissed the application for financial provision.

The court ordered that the applicants' application be dismissed, with no order as to costs.

Orders