JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2015
DATE OF JUDGMENT:	11 December 2015
CASE MAY BE CITED AS:	Thompson v Thompson
MEDIUM NEUTRAL CITATION:	[2015] VSC 706

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SUCCESSION LAW — Testator’s family maintenance — Application by second wife of deceased — Where responsibility to provide for second wife conceded — Whether testator made adequate provision for proper maintenance and support of second wife — Whether extended life interest in testator’s interest in home is sufficient further provision — Where adult children of testator assert competing needs — Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Marantelli	Susan Ruffin Solicitors
For the Defendant	Mr R Boaden	Lawson Hughes Peter Walsh

HER HONOUR:

Introduction

Jack Calvert Thompson (‘the deceased’) died on 10 August 2013, aged 93 years. The plaintiff is the widow and second wife of the deceased. She seeks further provision for her for proper maintenance and support from the estate of the deceased, pursuant to s 91 of the Administration and Probate Act 1958 (‘the Act’).[1]
[1]Note that as the deceased died prior to 1 January 2015, the new family provision regime under the Act, as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, does not apply.

The deceased was survived by:

(a) the plaintiff; and

(b) his two adult children from his first marriage, Laurel Thompson (‘Laurel’), and the defendant.

The plaintiff was born on 31 May 1938 and is now aged 77 years. Laurel was born on 29 November 1946 and is now aged 68 years and the defendant was born on 25 June 1948 and is now aged 67 years.

At the date of his death, the deceased lived with the plaintiff in their home, being an apartment in Cambridge Street, Collingwood (‘the Collingwood apartment’), which they held as tenants in common in equal shares.

The deceased’s will dated 12 May 1995 provides that the plaintiff is to receive the contents of their home, the deceased’s car (a 2008 Honda Accord), a pecuniary legacy of $15,000 and a life interest in the deceased’s half share of the Collingwood apartment. The residue of the estate is bequeathed to Laurel and the defendant in equal shares.

Probate of the deceased’s will dated 12 May 1995 was granted to the plaintiff and the defendant on 27 December 2013.

Estate’s assets and liabilities at trial

The agreed assets of the deceased’s estate as at the trial date total $673,000 and comprise:

(a) a one half interest in the Collingwood apartment valued at $475,000; [2]

(b) the sum of $158,000, being funds held in a solicitor’s trust account; and

(c) the proceeds of IOOF policies on the plaintiff’s life, worth…

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 Thompson

Details

AGLC: Thompson v Thompson [2015] VSC 706
Case: [2015] VSC 706
Decision Date: 11 December 2015

CaseChat Overview and Summary

In the case of Thompson v Thompson, the matter before the court involved a dispute regarding the proper maintenance and support of the second wife of the deceased, who had passed away. The court was required to determine whether the testator had made adequate provision for his second wife’s maintenance and support, and if the extended life interest in the testator’s interest in their shared home constituted sufficient provision. This decision was made in light of the competing needs asserted by the adult children of the deceased.

The legal issues before the court centred on the interpretation of the Administration and Probate Act 1958, particularly section 91, which outlines the court's discretion to make orders for the maintenance of the testator’s family. The court had to weigh the competing interests of the second wife, who claimed that the extended life interest in the home was insufficient, against the wishes of the testator as expressed in his will and the interests of his adult children.

The court found that while the responsibility to provide for the second wife was acknowledged, the testator had indeed made adequate provision for her maintenance and support. The extended life interest in the testator’s interest in the home was considered to be a sufficient further provision, taking into account the testator's overall estate and the interests of his adult children. The court held that the second wife's claim was not substantiated, and accordingly, her application was dismissed.

The court ordered that the second wife’s application for additional provision under the Administration and Probate Act 1958 be dismissed, confirming that the provisions made by the testator were adequate and that the competing interests of the adult children were properly considered. The court's decision was based on the testator’s clear intention and the sufficiency of the provision made for the second wife.

Orders