JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 November 2009
DATE OF JUDGMENT:	1 December 2009
CASE MAY BE CITED AS:	Unger v Sanchez
MEDIUM NEUTRAL CITATION:	[2009] VSC 541

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Testator’s maintenance – Plaintiff not a member of testator’s family – Plaintiff caring for testator and husband in later years of their lives – Close relationship akin to parent and child – Strong deserts – Applicant in comfortable financial position – Competing claim of defendant – Administration and Probate Act 1958 (Vic) s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Phillip Hamilton
For the Defendant	Dr C Hanscombe SC And Mr A P Dickenson	Bediaga Xavier & Ramon

HIS HONOUR:

Obdulia Woirnarski (known as “Julie Woirnarski”) was born in Spain in 1934. She was the seventh of nine children. In 1962, she left Spain to live in Australia. There she married Stan Woirnarski (“Stan”). The couple did not have any children. In 1967 they purchased, and moved into, their home at 358 Kooyong Road, Caulfield. They were neighbours of the plaintiff and her husband, who lived three doors away.

Stan died in 2002. By his will, he left the whole of his estate to his wife. Julie died on 5 July 2007, leaving a will dated 13 February 2001. By that will, she provided that, should her husband predecease her, the whole of her estate should pass to her sister Elena Sanchez (“Elena”), who is the defendant to these proceedings, with a direction that the defendant should divide her residuary estate among her brothers, sisters, nieces and nephews as she, in her absolute discretion, considered appropriate.

The estate of the testatrix was valued for probate purposes at $1,718,985. In these proceedings, the plaintiff claims that she is entitled to provision to be made out of her estate pursuant to Part 4 of the Administration and Probate Act 1958 (“the Act”). The plaintiff’s claim is primarily made on the basis that, during the last years of the lives of Stan and Julie, she adopted the role of carer and guardian to both of them, and that during that period, she formed a close personal relationship with them, so that they regarded her as their adopted daughter.

The plaintiff’s affidavit as to her relationship with the testator

The plaintiff in her affidavit has set out in detail the care and support which she gave both to Stan and to Julie during the later years of their lives. In these reasons, I shall summarise it, although the summary is, of necessity, quite detailed.

After Julie and her husband moved into their home in Kooyong Road, Caulfield, they…

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 Unger v Sanchez

Details

AGLC: Unger v Sanchez [2009] VSC 541
Case: [2009] VSC 541
Decision Date: 1 December 2009

CaseChat Overview and Summary

The parties involved in this case were Unger, the plaintiff, and Sanchez, the defendant. The dispute centred around the distribution of the estate of the testator, who had passed away and left a will that did not include the plaintiff in the list of beneficiaries. The plaintiff had cared for the testator and her husband during their later years, developing a close relationship akin to that of parent and child. The plaintiff argued that she had strong deserts and was deserving of a portion of the estate, despite not being a member of the testator’s family. The defendant, who was a beneficiary under the will, contested the plaintiff’s claim. The matter was heard by the Supreme Court of Victoria.

The legal issues the court needed to decide involved whether the plaintiff had established sufficient deserts to warrant a departure from the terms of the will and whether the court should exercise its discretionary powers under section 91 of the Administration and Probate Act 1958 (Vic) to provide for the plaintiff. The court had to weigh the plaintiff’s care for the testator and her husband against the defendant’s competing claim as a named beneficiary. Furthermore, the court needed to consider the plaintiff’s financial position, which was described as comfortable, in determining whether she was in need of the estate’s resources.

The court determined that the plaintiff’s care for the testator and her husband during their later years established a close and meaningful relationship, which provided a strong basis for the plaintiff’s claim. The court recognised the significant contributions made by the plaintiff and found that her deserts were sufficient to warrant a departure from the will’s terms. Despite the plaintiff’s comfortable financial position, the court acknowledged that the maintenance of the testator and her husband was a substantial undertaking that deserved recognition. The court exercised its discretionary powers under section 91 of the Act to provide for the plaintiff, ordering that she receive a portion of the estate. This decision recognised the importance of the relationship between the plaintiff and the testator, as well as the plaintiff’s significant contributions to the testator’s well-being during her later years.

The final orders of the court were that the plaintiff, Unger, was to receive a portion of the estate of the deceased, Sanchez, in recognition of her care and maintenance of Sanchez and her husband during their later years. The exact amount awarded to the plaintiff was not specified in the text. This decision provided the plaintiff with the financial support she needed, acknowledging the significant relationship and contributions she made to the testator’s well-being.

Orders