Trembath v Trembath - [2017] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 01848

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

AND IN THE MATTER of the Will and Estate of OLGA SERJOGIN TREMBATH (also known as Olga Serjogin) (in the Will called Olga S Trembath)

SCOTT BENNETT TREMBATH	Plaintiff
v
DIMITRI GEORGE TREMBATH (in the Will called Dimitri G Trembath) (as the Executor of the Will of Olga Serjogin Trembath, deceased)	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2016 with further submissions to 23 May 2017
DATE OF JUDGMENT:	23 June 2017
CASE MAY BE CITED AS:	Trembath v Trembath
MEDIUM NEUTRAL CITATION:	[2017] VSC 369

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FAMILY PROVISION – Application by stepchild – Father of plaintiff married to the testatrix – Father died before the testatrix - summary judgment sought for the defendant on the basis that plaintiff not a ‘stepchild’ as at the date of the testatrix’s death – Summary judgment refused – Arguable that Queensland and Tasmanian cases inapplicable or wrongly decided – Administration and Probate Act1958, s 90 – Re Burt [1988] 1 Qd R 23 distinguished – Re John [2000] 2 Qd R 322 not followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt	Maurice Blackburn
For the Defendant	Mr R B Phillips	Tolhurst Druce & Emmerson (now Pearce Webster Dugdales

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

This application and its procedural history.................................................................... 2
Summary of conclusions.................................................................................................... 4

Facts....................................................................................................................................................... 4

Submissions........................................................................................................................................ 5

Test for summary judgment............................................................................................................. 6

Legislative construction.................................................................................................................... 7

Previous authority.............................................................................................................................. 8

Queensland and Tasmanian cases............................................................................................. 8
High Court and Victorian authority......................................................................................... 13

Discussion.......................................................................................................................................... 16

Particular statutory context.............................................................................................. 16
Consideration of common law and US authority......................................................... 18
Potential relevance of a half sibling................................................................................ 21

Conclusion......................................................................................................................................... 21

Orders................................................................................................................................................. 21

HER HONOUR:

Introduction

This proceeding commenced by originating motion filed on 16 May 2016. The plaintiff seeks further provision from the estate of Olga Trembath, who he describes as his stepmother and who died on 3 July 2015. Probate of her will was granted to the defendant, her executor, on 17 December 2015.

The provisions relating to testators family maintenance i.e. the seeking of provision, or further provision, from an estate were amended in 2014 so as to restrict the persons who can apply for provision or further provision, with effect from 1 January 2015.

The plaintiff can only apply for further provision from the deceased’s estate if he is an ‘eligible person’ within s 90 of the Administration and Probate Act 1958 (‘the Act’). Paragraphs (c) and (f) of the definition of ‘eligible person’ apply expressly to a stepchild of a deceased. They provide as follows:

eligible person means—
(c)a stepchild of the deceased who, at the time of the deceased's death, was—
(i)        under the age of 18 years; or
(ii)       a full-time student aged between 18 years and 25 years; or
(iii)      a stepchild with a disability;

…
(f)a child or…

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 Trembath v Trembath

Details

AGLC: Trembath v Trembath [2017] VSC 369
Case: [2017] VSC 369
Decision Date: 23 June 2017

CaseChat Overview and Summary

The matter involved a family provision application made by a stepchild, Trembath, to the estate of the testatrix, who was their stepmother. The deceased had been married to the father of the applicant, but the marriage ended before the testatrix's death. The defendant sought summary judgment, arguing that the applicant was not a 'stepchild' at the date of the testatrix’s death because the marriage between the testatrix and the applicant's father had ended prior to the testatrix’s passing. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the applicant, Trembath, qualified as a'stepchild' under the Administration and Probate Act 1958 at the time of the testatrix's death. This required an examination of the statutory definition of 'stepchild' and how it applies to circumstances where the marriage between the deceased and the applicant's biological parent had dissolved prior to the deceased's death. The court also needed to consider relevant precedents from Queensland and Tasmania, specifically the cases of Re Burt and Re John, to determine their applicability and correctness.

The court found that it was arguable that the Queensland and Tasmanian cases were inapplicable or wrongly decided. The court distinguished the case of Re Burt, which held that the marriage must be in existence at the time of the deceased's death for the applicant to be considered a stepchild. Conversely, the court did not follow Re John, which took a broader interpretation of the term 'stepchild'. The court held that the question of whether the applicant was a stepchild at the relevant time was a matter of fact and degree that required a full hearing. Therefore, the defendant's application for summary judgment was refused.

The court ordered that the matter proceed to a full hearing to determine whether the applicant was a stepchild of the testatrix at the time of her death, thus deciding whether the applicant is entitled to a provision from the estate under the Administration and Probate Act 1958.

Orders