Vanderloo v Milne

Case [2014] NSWSC 1932


Supreme Court


New South Wales

Medium Neutral Citation: Vanderloo v Milne [2014] NSWSC 1932
Hearing dates:3 July 2014, 21 August 2014
Date of orders: 19 December 2014
Decision date: 19 December 2014
Jurisdiction:Equity Division
Before: Robb J
Decision:

(1)     Order that the plaintiff's proceedings be dismissed  

(2)     The plaintiff is to bear his own costs of the proceedings.

(3)     The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendants’ costs.

(4)     Subject to any order that will be made in response to order (3), the defendants’ costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis.

(5)    Order that the exhibits may be returned forthwith in accordance with the Rules

Catchwords: SUCCESSION - family provision and maintenance - plaintiff second husband of testator – marriage lasted 15 years – testator made will shortly before death – testator gave careful consideration to dividing her estate between her husband and her two sons – plaintiff received half of matrimonial home – matrimonial home property of testator before marriage – orders sought by plaintiff relatively small increment on plaintiff’s financial circumstances before application made – provision in will for proper maintenance and advancement in life of plaintiff not inadequate – testator’s sons have competing financial needs– application out of time – application dismissed
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Allen v Allen [2012] NSWSC 140
Alexander v Jansson [2010] NSWCA 176
Aubrey v Kain [2014] NSWSC 15
Bladwell v Davis [2004] NSWCA 170
Chapple v Wilcox [2014] NSWCA 392
Epov v Epov [2014] NSWSC 1086
Grundel v Registrar-General (1990) 5 BPR 11,217
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker (1957) 97 CLR 566
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 20
Slack v Rogan; Palffry v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Underwood v Gaudron [2014] NSWSC 1055
West v Mann [2013] NSWSC 1852
Category:Principal judgment
Parties: Theo Vanderloo (plaintiff)
David Patterson Milne (first defendant)
Christopher Stuart Milne (second defendant)
Representation:

Counsel: K F Morrissey (plaintiff)
R Brender (defendants)

  Solicitors: Gregory Smith Law (plaintiff)
Pigott Stinson (defendants)
File Number(s):2013/200321
Publication restriction:None

Judgment

  1. The plaintiff, Mr Theo Vanderloo, by summons filed on 1 July 2013, seeks an order that provision be made for his maintenance and advancement in life pursuant to s 59 of the Succession Act 2006 (NSW) (the “Act”) from the estate or notional estate of Helen Elizabeth Vanderloo, who died on 13 September 2011.

  2. As the summons was filed more than 12 months after the date of Mrs Vanderloo’s death, Mr Vanderloo requires an order of the Court under s 58(2) of the Act that permits him to prosecute his claim out of time. He seeks an order to that effect in his summons.

  3. The deceased, who I will call Mrs Vanderloo,…

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AGLC
Vanderloo v Milne [2014] NSWSC 1932
Case
[2014] NSWSC 1932
Decision Date

CaseChat Overview and Summary

The case of Vanderloo v Milne involved the plaintiff, who was the second husband of the deceased, Mrs. Milne. Following Mrs. Milne's death, the plaintiff sought an order under the Family Provision Act, arguing that the provisions made for him in her will were inadequate. The marriage between Mrs. Milne and the plaintiff lasted for fifteen years, during which time she made a will that divided her estate between him and her two sons from a previous marriage. The plaintiff specifically sought a larger share of the estate, claiming that the provisions made in the will did not sufficiently account for his financial needs.

The central legal issues in this case were whether the provisions made for the plaintiff in the will were indeed inadequate, and if the application for relief was within the statutory time limit. The court needed to determine if the will provided for the proper maintenance and advancement in life of the plaintiff, as required by the Family Provision Act. Additionally, the court had to consider the financial needs of the testator's sons, who also had competing claims on the estate.

The court found that Mrs. Milne had given careful consideration to the division of her estate, particularly considering the plaintiff's relatively small financial needs prior to the application. The court held that the provision in the will was sufficient for the proper maintenance and advancement in life of the plaintiff, especially in light of the financial needs of the testator's sons. The court also concluded that the application was out of time, as it was not made within the statutory period allowed under the Family Provision Act. Therefore, the application was dismissed, and the court upheld the provisions of the will.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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