Wadsley v Sutherland - [2015] VSC 344

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2013 01648

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

and

IN THE MATTER of the estate of Heather Margery Robinson, deceased

B E T W E E N:

ROBERT WILLIAM WADSLEY (by his litigation guardian, Pamela McCredden)	Plaintiff
v
VICKI SUTHERLAND, ANNA COLETTE CONNOLLY (as executrices of the will of Heather Margery Robinson) and STEVEN MICHAEL BOX	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 and 5 March 2014
DATE OF JUDGMENT:	22 July 2015
CASE MAY BE CITED AS:	Wadsley v Sutherland and others
MEDIUM NEUTRAL CITATION:	[2015] VSC 344

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TESTATOR’S FAMILY MAINTENANCE - Application for further provision by cousin against a cousin’s estates - Provenance of deceased cousin’s estate - Claimant disabled son deprived of inheritance from widowed mother - Deceased cousin inherited instead with promise to provide reasonable care and benefit to deprived cousin - Whether transmission of mother’s moral obligation - Extent of moral responsibility as between cousins in the circumstances - Substantial estate - Bequest of $250,000 life fund - Adequacy of provision for proper maintenance and support - Significance of claimant’s disability pension in the assessment - Administration and Probate Act 1958 (Vic) s 91

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr P D Bravender-Coyle	Bartram Lawyers
For the first and second defendants	Mr R Phillips	Wakefield & Vogrig Lawyers
For the third defendant	Ms E Coates	Stidson Warren Lawyers

HIS HONOUR:

It may truly be said of the plaintiff, Robert William Wadsley, that he has had a piteous life.

He is 65 years of age. He is the only child of Colin Victor Wadsley and Dorothy Edna Wadsley, both deceased. He did not advance beyond Year 10 at school. He worked with his father and mother on the family farm in Pakenham South raising sheep and cattle, and growing vegetables. When he was 18 (the year was 1968) he was traumatised by the sight of his father lying dead in a paddock ― a rifle by his side. Until the age of 23, Robert worked on the farm with his mother, and for a short time also worked as a road labourer until he witnessed a terrible workplace death. He then came to be afflicted with serious psychiatric disorders.

I shall defer reciting the details of a life spent in institutionalised care from time to time, or in supported care services. He has had an extensive reduced level of functioning throughout his life in all areas, including work, interpersonal relationships and self-care. He has deficits in learning and cognitive functioning. Recent diagnosis has him as experiencing residual symptomatology consistent with a primary diagnosis of schizophrenia. He has never married or had any long term or intimate relationships. On the psychiatric evidence, his functional rehabilitation will be limited and it is unlikely he could live a fully independent lifestyle or live in…

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 Wadsley v Sutherland

Details

AGLC: Wadsley v Sutherland [2015] VSC 344
Case: [2015] VSC 344
Decision Date: 22 July 2015

CaseChat Overview and Summary

In the case of Wadsley v Sutherland, the court was tasked with resolving a dispute over a claim for further provision under the Administration and Probate Act 1958 (Vic) by a cousin against the estate of a deceased cousin. The deceased, having inherited a substantial estate from their widowed mother, had promised to provide reasonable care and benefit to the claimant, who was deprived of inheritance due to their mother’s prior arrangements. The deceased left a bequest of $250,000 in a life fund to the claimant, and the court was called upon to determine whether this provision was adequate for the claimant’s proper maintenance and support, considering the claimant’s disability pension.

The central legal issues the court had to address involved the interpretation and application of the statute, specifically section 91 of the Administration and Probate Act 1958 (Vic), in the context of the deceased's promise to provide for the claimant. The court had to ascertain whether the moral obligation of the deceased's mother to provide for the claimant had been transmitted to the deceased, and if so, the extent of this obligation. Additionally, the court needed to assess whether the $250,000 bequest, along with the claimant's disability pension, constituted adequate provision for the claimant’s maintenance and support.

In its reasoning, the court examined the nature of the relationship between the deceased and the claimant, as well as the circumstances leading to the claimant's deprivation of inheritance. The court considered the moral obligation that arose from the deceased's mother's promise and how this obligation was intended to be fulfilled by the deceased. The court also evaluated the adequacy of the $250,000 bequest, taking into account the claimant's disability pension and other financial resources. Ultimately, the court found that the bequest, combined with the claimant's pension, was sufficient to meet the claimant’s needs for proper maintenance and support. The court concluded that the deceased had fulfilled the moral obligation to provide reasonable care and benefit to the claimant, and that no further provision was necessary.

Orders