Walters v Perton - [2023] VSC 37

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2017 02159

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued in her capacity as the Executor of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant

- and –

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2018 00225

LYNNE MARGARET WALTERS	Plaintiff
v
JANE ELIZABETH PERTON (who is sued as trustee of the Port Eagle Investment Trust and as Executrix of the Will and Trustee of the Estate of Donald Graeme Warring, deceased)	Defendant
- and –
JANE ELIZABETH PERTON (as Trustee of the Port Eagle Investment Trust)	Plaintiff by Counterclaim
v
LYNNE MARGARET WALTERS	Defendant by Counterclaim

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	9-14 February 2022, 4 April 2022 (final submissions), 2 May 2022 (pleading amendment), 10 November 2022 (application to reopen)
DATE OF JUDGMENT:	9 February 2023
DATE OF REVISION:	20 February 2023 (as to the position of paragraph 272 only)
CASE MAY BE CITED AS:	Walters v Perton
MEDIUM NEUTRAL CITATION:	[2023] VSC 37

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ADMINISTRATION AND PROBATE – Testators Family Maintenance – Application for further provision – Whether failure to make adequate provision – Administration and Probate Act 1958 (Vic) Part IV – Mandatory and discretionary considerations – Proper maintenance and support of an eligible person – Executor is adult daughter of deceased – Application made by de-facto partner of deceased – No competing needs of beneficiaries or other eligible person – Will did not make adequate provision – Further evidence required as to quantum – Christu v Christu [2021] VSC 162.

TRUSTS, EQUITY AND PROBATE – Declaratory and injunctive relief – Standing to apply for declarations as to assets in the estate – Common intention constructive trust – Proprietary estoppel – Whether plaintiff had beneficial interest in property in which she resided with deceased – Interest in land where title held by trustee of discretionary trust – Property encumbrance – Effect of death on continuing guarantee – Whether deceased’s estate has beneficial interest in same property due to deceased’s monetary contributions – Legal and beneficial interest of the property resides with the trustee – Whether guarantee of deceased to secure third party borrowings secured by mortgage over property encumbers asset in estate – Whether company shares purportedly cancelled before death form part of the estate – Company shares do not form part of the estate – Plaintiff has standing to seek declarations – Corporations Act 2001 (Cth) ss 256, 1332 - Wood & Jack v McLean & Jack (2010) 31 VR 12 – Mataska v Browne [2013] VSC 62.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Garratt KC	Nedovic Lawyers
For the Defendant	D Farrands KC L Mills	Darrer Muir Fleiter

TABLE OF CONTENTS

A.. OVERVIEW................................................................................................................................... 1

B.. THE PRESENT PROCEEDINGS AND ISSUES ARISING................................................. 4

B.1... Issues regarding the…

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 Walters v Perton

Details

AGLC: Walters v Perton [2023] VSC 37
Case: [2023] VSC 37
Decision Date: 9 February 2023

CaseChat Overview and Summary

The case of Walters v Perton involved the application by the deceased's de facto partner, seeking further provision under the Administration and Probate Act 1958 (Vic). The application was made against the deceased's adult daughter, who was the executor of the estate. The central dispute was whether the will of the deceased made adequate provision for the applicant, and if not, what further provision should be made. The court was tasked with determining the mandatory and discretionary considerations under the Act, focusing on the proper maintenance and support of the applicant.

The court examined the will to ascertain if it provided adequate maintenance for the applicant and found that it did not. The primary legal issue was whether the deceased's estate should provide additional financial support to the applicant. The court also had to decide on the quantum of the provision, which required further evidence to be presented. The court's reasoning was influenced by the decision in Christu v Christu, where it was held that the court has broad discretion to make orders that ensure the proper maintenance and support of eligible persons.

The court concluded that the deceased's will did not adequately provide for the applicant's maintenance and ordered further evidence to determine the appropriate amount of provision. The court found that the applicant had standing to seek declarations regarding the assets in the estate, including the property where she resided with the deceased. The court also ruled that company shares purportedly cancelled before death did not form part of the estate, and that the property in question was encumbered by a guarantee made by the deceased. The final orders of the court included an order for the executor to provide further provision to the applicant and directions for the provision of additional evidence.

Orders