(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
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
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.
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.
The deceased, who I will call Mrs Vanderloo,…
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.
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Details
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.