Walters v Perton (No 2) - [2023] VSC 335

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:	14, 17 April 2023
DATE OF JUDGMENT:	20 June 2023
CASE MAY BE CITED AS:	Walters v Perton (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 335

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ADMINISTRATION AND PROBATE – Testators Family Maintenance – Quantum of further provision – Mechanism to give effect to further provision – Suitability of Crisp order – Six-month rule – Where primary judgment found that the will did not make adequate provision – Where asset from which provision to be made was transferred out of estate within six months of grant of probate – Order that the sum be paid by the executor personally – Crisp order not appropriate – Administration and Probate Act 1958 (Vic) s 91, s 97.

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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

HER HONOUR:

In a judgment dated 9 February 2023 the Court determined that Lynne Walters was entitled to further provision from the estate of Donald Warring but did not determine the quantum of that further provision. The reason that it did not do so was that the parties also disputed the size of the estate from which provision was to be made. The parties agreed that some further evidence was required and that submissions on the question of quantum should be made, informed by the Court’s findings as to the size of the estate. To that end a further hearing occurred on 14 and 17 April 2023.

These reasons deal with the outstanding issue of the quantum of further provision to be made to Lynne. I will provide a separate ruling regarding the dispute as to costs which was also argued at the further hearing. These reasons assume a familiarity with the reasons of 9 February 2023 (the principal judgment). The definitions used there are adopted and used in these reasons. Additionally I have referred to, and assume some familiarity with, related proceedings between the parties before Associate Justice Derham.[1]
[1]Perton v Walters [2018] VSC 445; Walters v Perton [2019] VSC 356; Walters v Perton (No 2) [2019] VSC 542

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 (No 2)

Details

AGLC: Walters v Perton (No 2) [2023] VSC 335
Case: [2023] VSC 335
Decision Date: 20 June 2023

CaseChat Overview and Summary

The case of Walters v Perton (No 2) involved a dispute over the interpretation and implementation of a testator's will, specifically in relation to the provision for the testator's family. The matter was heard in the Supreme Court of Victoria. The central issue was whether a specific asset, which was transferred out of the estate within six months of the grant of probate, could be used to fulfill a testamentary provision for family maintenance, and if so, how that provision should be implemented.

The court was required to determine whether a Crisp order was suitable in these circumstances. A Crisp order is a mechanism under the Administration and Probate Act 1958 (Vic) that allows a court to order an executor to pay a sum of money from their own funds if the estate does not have sufficient resources to meet the testator’s intentions. The court also had to consider the six-month rule, which stipulates that an asset transferred out of the estate within six months of the grant of probate cannot be considered part of the estate for the purposes of testamentary provisions.

The court found that the six-month rule precluded the asset in question from being considered part of the estate. Consequently, the Crisp order was not an appropriate mechanism to effect the further provision for the testator's family. Instead, the court ordered that the sum be paid by the executor personally, as the asset in question was no longer part of the estate. This ruling adhered to the statutory framework and aimed to ensure the testator's intentions were fulfilled despite the asset's transfer.

In summary, the court held that the executor should personally pay the sum required to meet the testator's intentions for family maintenance, as the asset in question was no longer part of the estate and a Crisp order was not suitable in these circumstances.

Orders