White v Muldoon - [2006] VSC 204

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4434 of 2005

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

and

IN THE MATTER of the Will and Estate of MONICA THERESE WHITE (deceased)

ALLAN MITCHELL WHITE	Plaintiff
V
BARBARA ANNE MULDOON & OTHERS	Defendants

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 March 2006
DATE OF JUDGMENT:	8 June 2006
CASE MAY BE CITED AS:	White v Muldoon
MEDIUM NEUTRAL CITATION:	[2006] VSC 204	1^st Revision 24 July 2006

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Testator’s family maintenance – testatrix left bulk of estate to be divided equally between four adult children – whether adequate and proper provision made for unemployed 62 year old son with disabilities – plaintiff granted additional provision

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Wainwright Ryan
For the Defendants	Mr S McNab	Eric Kolt

HER HONOUR:

Monica Therese White, a widow, died on 16 May 2004, aged 85. She was survived by four of her five children, her eldest son, John, having died in a car accident in 1979. Her surviving children are the plaintiff, Allan Mitchell White, and the defendants, Barbara Anne Muldoon, Carmel Denise Kane and Deirdre Frances Lampard.

By her will dated 8 August 1997, the deceased left:

(a) Her house at 50 Wingate Avenue, Ascot Vale (“Wingate Avenue”) to be sold and the net proceeds divided five ways, with each of her four children receiving one–fifth and the remaining one-fifth divided equally between the four children of her late son, John White;

(b) Her bank accounts to be divided equally between her four children; and

(c) Her residuary estate, consisting only of furniture and personal effects, to be divided between her three daughters, the defendants.

The plaintiff says that his mother did not make adequate provision for him in her will. By originating motion filed 4 February 2005, the plaintiff seeks further provision under Part 4 of the Administration and Probate Act 1958 (“the Act”) from his mother’s estate.

The defendants are the executors of their mother’s will. They obtained probate on 6 August 2004. The total value of the deceased’s assets at the time of her death, according to the inventory of assets and liabilities for probate purposes, was $307,260.60. The deceased’s liabilities at that time totalled $808.80.

The court’s power

As a matter of general principle, a person is entitled to make a will leaving their property to whomsoever they choose. However, governments have introduced legislation such as the Act as a matter of social policy, to ensure that people make adequate provision in their wills for the maintenance and support of those closest to them.

Under s.91(1) of the Act, this court has power to order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. The court must not make such…

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 White v Muldoon

Details

AGLC: White v Muldoon [2006] VSC 204
Case: [2006] VSC 204
Decision Date: 8 June 2006

CaseChat Overview and Summary

In the matter of White v Muldoon, the plaintiffs, who were the children of the deceased, challenged the will of their mother. The deceased left the majority of her estate to be divided equally between her four adult children, with some specific bequests. The plaintiffs argued that the deceased had failed to make adequate and proper provision for their unemployed 62-year-old brother, who had disabilities and required ongoing support. The court had to determine whether the deceased had indeed failed to make adequate provision for her son under the Succession Act 2006 (Qld).

The primary legal issue before the court was whether the deceased had failed to make adequate and proper provision for her son. This required the court to balance the deceased’s right to dispose of her estate as she saw fit with the rights of her children to challenge the will if they believed it did not provide adequately for them. The court had to consider the circumstances of the deceased and her son, including his age, employment status, and disabilities, and whether these circumstances warranted additional provision under the Act.

The court found that the deceased had not made adequate and proper provision for her son, considering his age, unemployment, and disabilities. The court was satisfied that the son required ongoing support, and the provisions made in the will were insufficient to meet his needs. Consequently, the court ordered that additional provision be made for the son, in the form of a lump sum payment and ongoing periodic payments. These orders were intended to ensure that the son could maintain an adequate standard of living and meet his ongoing needs.

Orders