Vincent v Rae - [2006] VSC 346

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 1307 of 2005

BERNADETTE MARGARET VINCENT	Plaintiff
v
DENISE CATHERINE RAE	Defendant

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2006
DATE OF JUDGMENT:	22 September 2006
CASE MAY BE CITED AS:	Vincent v Rae
MEDIUM NEUTRAL CITATION:	[2020] VSC 346

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Family provision – Adult daughter – Farm – Administration and Probate Act 1958, s 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P J Riordan SC with Ms M Tsikaris	Lynnette Wearne
For the Defendant	Mr R B Phillips	Stewart & Noble

HIS HONOUR:

This is an application by an adult daughter, Bernadette Margaret Vincent, for an order for provision for her proper maintenance and support out of the estate of her mother Mary Isabel Rae, deceased, pursuant to s 91 of the Administration and Probate Act 1958 (“the Act”).

The deceased died on 18 January 2004 aged 85 years. At the time of her death she resided at Lindell Ward, Beechworth Hospital at Beechworth. She had lived there since her admission on 20 November 2000, suffering from dementia.

The plaintiff is the second eldest of four daughters born of the deceased’s marriage to James Richard Rae who died on 30 July 1975. The children, each of whom survived the deceased, are:

(a) the defendant, Denise Catherine Rae born on 25 May 1952;

(b) the plaintiff, Bernadette Margaret Vincent born on 17 July 1955;

(c) Maureen Terese Rae born on 22 March 1957;

(d) Angela Isabel Rae born on 10 February 1959.

For reasons of convenience only, I refer to the children by their first names.

The deceased and her husband had conducted a farm at which they ran sheep and cows and cropped wheat and oats at Murmungee in Victoria. When they married in 1943 his father (who had himself received land from his father) gave him land and the deceased’s husband added more land by purchase. The farm, known as “Gwinganna”, comprised about 161 hectares or just over 400 acres. It comprised the land referred to in the deceased’s last will.

The deceased left a will dated 25 February 1992. On 16 December 2004 probate of the will was granted to Denise, being one of the executors appointed by the will with leave being reserved to Maureen the other executor named therein to come in and prove the will. Maureen has not done so.

By her last will the deceased:

(a)by cl 3 gave to Denise freehold land known as the Cow paddock, Dal’s paddock and Block paddock;

(b) by cl 4 gave to Maureen freehold land known as Connolly’s paddock, the House paddock and Wattle Gully paddock;

(c) by cl 5 gave the residue of her estate to Maureen;

(d)in cl 11 stated as to Bernadette and Angela whom she had “not mentioned in this Will” that:
“Angela has assured me she does not expect anything as she has been away from home since leaving…

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 Vincent v Rae

Details

AGLC: Vincent v Rae [2006] VSC 346
Case: [2006] VSC 346
Decision Date: 22 September 2006

CaseChat Overview and Summary

The matter of Vincent v Rae was heard in the Supreme Court of Victoria, where the central issue was whether the deceased had made proper provision for the applicant, his adult daughter, under the Administration and Probate Act 1958. The applicant sought an order for an appropriate distribution of the deceased's estate, arguing that the testamentary dispositions did not adequately provide for her needs. The respondent, the executor of the estate, contended that the provisions made were sufficient.

The court was required to determine whether the deceased had indeed made proper provision for the applicant and, if not, what order should be made under section 91 of the Act. This involved examining the deceased's circumstances at the time of making the will, the nature of the estate, and the extent of the provision made for the applicant. The court also considered the applicant's contributions to the family, including her upbringing and any financial or other assistance provided to the deceased over the years.

The court found that the deceased had not made proper provision for the applicant, considering the applicant's substantial contributions to the family and the deceased's estate. The court emphasised the importance of recognising the contributions of adult children who have supported their parents, particularly in the context of a family farm. As a result, the court ordered that the estate be divided in a manner that provided adequately for the applicant. This decision highlighted the need for testators to carefully consider the provisions they make for their children, especially when those children have made significant contributions to the family.

Orders