GRAEME COOPER WEBB & ORS (ACCORDING TO THE SCHEDULE ATTACHED)
Plaintiffs
and
MICHAEL RYAN & ANOR (AS EXECUTORS OF THE ESTATE OF DANIEL JOHN NORTH, DECEASED)
Defendants
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JUDGE:
WHELAN J
WHERE HELD:
Melbourne
DATES OF HEARING:
6, 7, 8, 13, 14 August 2012
DATE OF JUDGMENT:
3 September 2012
CASE MAY BE CITED AS:
Webb & Ors v Ryan & Anor
MEDIUM NEUTRAL CITATION:
[2012] VSC 377
Amended 20 September 2012
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WILLS – Family Provision – Responsibility to non-family business partners and friends, and their children – Requisite responsibility not established – Administration and Probate Act 1958, Part IV.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiffs
Mr S Baker
Thomas Egan
For the Defendants
Mr G A Devries
Mahons with Yuncken & Yuncken
HIS HONOUR:
The plaintiffs are all members of one family. Mr Graeme Webb and Mrs Valda Webb are the parents of Melissa Webb, Jason Webb, Matthew Webb, and Renee Webb. The late Daniel North, and his late wife Kathleen North (nee Ryan), were business partners of Graeme and Valda Webb. They worked together for many years in a business initially established by Mr and Mrs North, and which was eventually conducted by a company named Norwebb Pty Ltd (“Norwebb”). The Norths owned 52% of the shares in Norwebb and the Webbs owned 48%.
Kathleen North died in June 2007, leaving everything to her husband. Daniel North died on 30 January 2010. By his last will made on 20 January 2010, he left his estate to 14 nieces and nephews of himself and his late wife. Before he died he made dispositions which had the effect of paying off all of the external secured debt of Norwebb and he transferred his 52% shareholding to Graeme and Valda Webb for a nominal sum.
The plaintiffs have brought this proceeding against the executors of Daniel North’s estate. They are Michael Ryan, one of the deceased’s nephews on the Ryan side, and Travis North, one of the deceased’s nephews on the North side. The claim is brought under Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”). The plaintiffs say that Daniel North had a responsibility to make provision for their proper maintenance and support and that the court should order that that provision be made.
Thirty-seven affidavits sworn by family and friends of the parties were relied upon at trial. Sixteen of those deponents were required to attend for cross-examination. The trial occupied five sitting days. But for the commendable efforts of both counsel, it would have gone considerably longer.
Daniel North’s estate is not a large one. It is being held in cash. Before account is taken of the costs of this proceeding, it totals approximately $970,000.…
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.
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AGLC
Webb v Ryan [2012] VSC 377
Case
[2012] VSC 377
Decision Date
CaseChat Overview and Summary
In Webb v Ryan, the matter was before the Supreme Court of Victoria, dealing with an application under the Administration and Probate Act 1958. The dispute arose from the will of a deceased individual, wherein the applicant, Webb, sought an order for family provision from the estate of Ryan, the executor. Webb contended that the deceased had not made adequate provision for his needs, as stipulated under section 52 of the Act. Webb argued that the deceased owed a responsibility to him, which was not sufficiently discharged in the will.
The court was tasked with determining whether the deceased had a requisite responsibility towards Webb that was not adequately met in the will. This involved an assessment of the deceased's responsibility to non-family business partners and friends, as well as their children. The court had to examine the nature and extent of the deceased’s responsibility towards Webb and decide if it warranted an order for family provision. This required a nuanced interpretation of the statutory provisions and an evaluation of the evidence presented regarding the relationship between Webb and the deceased.
The court found that the deceased did not owe a requisite responsibility to Webb that was not adequately met by the provisions made in the will. The evidence presented did not establish the level of responsibility necessary to warrant an order for family provision under the Act. The court emphasised that the deceased had made provision for Webb in the will, but it was not sufficient to meet the requisite responsibility. Consequently, the court dismissed Webb's application for family provision, finding that the deceased had not failed to make reasonable financial provision for Webb’s needs.