Legal Research
Cases
Warriner v Warriner

Warriner v Warriner

Case [2015] VSC 314 1 July 2015

Testator's Responsibility

Maintenance and Support

Failure to Provide Adequate Provision

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2013 02284

IN THE MATTER OF the Will and Estate of Alma Grace Warriner (Deceased) and
IN THE MATTER OF Part IV of the Administration and Probate Act 1958
GEORGE ARTHUR WARRINER	Plaintiff
v
BEATE ANDREA McMANUS and JEAN ALMA WARRINER (WHO ARE SUED AS EXECUTORS OF THE ESTATE OF THE ABOVE NAMED ESTATE)	Defendant

---

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June and 5 June 2015
DATE OF JUDGMENT:	1 July 2015
CASE MAY BE CITED AS:	Warriner v Warriner
MEDIUM NEUTRAL CITATION:	[2015] VSC 314

---

TESTATOR’S FAMILY MAINTENANCE – Application by adult able-bodied son – Jurisdictional requirements of Part IV of Administration and Probate Act 1958 (Vic), s 91 – Whether testator had responsibility to provide for claimant’s proper maintenance and support – Failure to make adequate provision.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D Catlin	Armstrong Legal
For the Defendant	Ms U Stanisich	Bruce M Cook & Associates

HER HONOUR:

Introduction

This is a claim under Part IV of the Administration and Probate Act 1958 (‘the Act’). The plaintiff, George Arthur Warriner, (‘George’) is the oldest son of the deceased, Alma Grace Warriner (‘the deceased’).

The defendants, who are sued as executors, are Beate Andrea McManus and Jean Alma Warriner (‘Jean’). I will use first names to avoid confusion.

Jean is George’s younger sister. They are the deceased’s surviving children. The deceased died on 20 August 2012 leaving a Will dated 8 July 1999. Probate was granted on 6 December 2012.

The deceased’s estate consisted of a house at 11 Duffy Street, Maribyrnong (‘the property’) valued at approximately $680,000 to $740,000. The deceased devised and bequeathed the property, the main asset of the estate, to Jean. George and Jean were left the residuary estate under the Will in equal shares. According to the inventory of the assets and liabilities of the estate as at 3 July 2013, the residuary estate was valued at $16,774.76. The Court was informed that the cash in the estate, $16,774.76 at the date of death, has been used in estate expenses.

George relies on two affidavits sworn 3 July 2013 and 9 June 2014.

Jean relies on an affidavit sworn dated 12 May 2014. In addition, she relies on the affidavits of: Ronald Wayne Rosinsky sworn 28 May 2015 and Dr Judith Fleming sworn 29 May 2015. George and Jean also rely upon written submissions.

George, Jean, Dr Fleming and Mr Rosinsky gave viva voce evidence.

The evidence
George’s evidence

George is 68 years old. In 1964 George commenced working as an apprentice sheet metal worker.

In 1972 George purchased his own home in West Footscray, he married and moved into the home. George had three children with his first wife. In 1983, George divorced his first wife and gained custody of his three children. His first wife was placed into psychiatric care in 1990 and at that…

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 Warriner v Warriner

Details

AGLC: Warriner v Warriner [2015] VSC 314
Case: [2015] VSC 314
Decision Date: 1 July 2015

CaseChat Overview and Summary

In the matter of Warriner v Warriner, the respondent, an adult able-bodied son, applied for maintenance under Part IV of the Administration and Probate Act 1958 (Vic). The deceased, the son’s father, had not made adequate provision for the son’s proper maintenance and support. The son sought to establish that the deceased had the responsibility to provide for him and that the failure to do so constituted a ground for his application under the Act.

The central legal issue before the court was whether the son fulfilled the jurisdictional requirements outlined in section 91 of the Act. Specifically, the court needed to determine if the son demonstrated that the deceased had the responsibility to provide for his proper maintenance and support, and if the deceased's failure to do so warranted an order for maintenance. This involved an examination of the deceased’s financial capacity and the son’s needs at the time of the deceased’s death.

The court held that the son had not demonstrated that the deceased had a responsibility to provide for his maintenance and support. The evidence presented did not substantiate that the deceased was in a position to make adequate provision for the son, nor did it show that the son was unable to provide for himself. Consequently, the court concluded that the son’s application under the Act was not substantiated. The court found that the son had not met the jurisdictional requirements as per section 91 of the Act.

As a result, the court dismissed the son's application for maintenance. The court ruled that there was no obligation on the part of the deceased to provide for the son's maintenance and support, and therefore, no grounds existed for an order under the Act.

Orders