KIM DIANE WHITEHEAD	First plaintiff
ALEX WILLIAM WHITEHEAD (by his litigation guardian LORRAINE WHITEHEAD)	Second plaintiff
v
STATE TRUSTEES LIMITED (ACN 064 593 148) (as the executor of the will of the deceased)	Defendant

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2, 3 and 6 December 2010
DATE OF JUDGMENT:	2 September 2011
CASE MAY BE CITED AS:	Whitehead v State Trustees Limited
MEDIUM NEUTRAL CITATION:	[2011] VSC 424	1^st revision: 19 October 2011

TESTATOR’S FAMILY MAINTENANCE – claim by intimate female companion of deceased and child by another man – deceased promised to support woman and help her care for child if she took pregnancy to full term – deceased older, never married and had no children of his own – deceased and woman became engaged to be married – deceased treated child as a son – child saw deceased as ‘bestest dad in the whole world’ – thirty year old will – relationship between woman, child and man represented social unit tantamount to family – whether deceased has moral responsibility for proper maintenance and support of woman and child – Administration and Probate Act 1958 (Vic), s 91(1), (2), (3) and (4).

APPEARANCES:	Counsel	Solicitors
For the first plaintiff	Mr R N J Young	Zeljko Stojakovic, Barristers & Solicitors
For the second plaintiff	Mr M McKenzie	Rosemarie Ryan Lawyers
For the defendant	Mr A G Southall QC with Mr A Bolkas	Legal Branch, State Trustees

TABLE OF CONTENTS

INTRODUCTION........................................................................................................................... [1]

WILL OF BARRY SAMSON......................................................................................................... [5]

APPLICATION FOR PROPER MAINTENANCE AND SUPPORT................................... [10]

TESTATOR’S RESPONSIBILITY TO MAKE PROPER PROVISION.............................. [16]

Power of court........................................................................................................................... [16]
History of provisions............................................................................................................... [21]
Public policy objects and purposive interpretation........................................................... [30]
Freedom of testamentary disposition................................................................................... [35]
Moral responsibility of deceased to provide....................................................................... [42]
Persons for whom deceased had responsibility to make provision................................ [48]
Adequate provision for proper maintenance and support................................................ [51]
Prevailing community standards........................................................................................... [56]
Date at which consideration is given..................................................................................... [59]
Intentions of the deceased....................................................................................................... [64]
Character and conduct of persons.......................................................................................... [65]
Contributions to welfare of deceased.................................................................................... [68]

RELATIONSHIP BETWEEN KIM, ALEX AND BARRY...................................................... [74]

Critical issue in case................................................................................................................. [74]
Relationship between Kim and Barry................................................................................... [76]
Individuals concerned............................................................................................................ [76]
Barry............................................................................................................................... [76]
Kim................................................................................................................................. [82]
Alex................................................................................................................................. [87]
Authenticity of Kim’s diaries................................................................................................. [89]
Kim commences relationship with Barry............................................................................... [96]
Kim’s relationship with Rob, Ilia and Sam........................................................................... [104]
Alex’s birth and Kim and Barry’s engagement................................................................... [112]
Kim’s photograph at Barry’s home....................................................................................... [120]
Cards given by Barry to Kim............................................................................................... [124]
Kim and Barry’s separate finances and homes..................................................................... [127]
Proposed new house at Deverall Road, Sunbury................................................................. [132]
Kim’s death notice and affidavit........................................................................................... [137]
Kim’s drinking and smoking................................................................................................ [138]
What Kim, Barry and Alex shared....................................................................................... [142]
When Barry became ill......................................................................................................... [169]
Barry’s intended new will.................................................................................................... [178]
Kim and Barry: nature…

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 Whitehead v State Trustees Ltd

Details

AGLC: Whitehead v State Trustees Ltd [2011] VSC 424
Case: [2011] VSC 424
Decision Date: 2 September 2011

CaseChat Overview and Summary

The case of Whitehead v State Trustees Ltd involved a claim by a woman and her child for maintenance from the estate of the deceased, Mr Whitehead. The woman, who had been in a relationship with Mr Whitehead, gave birth to a child fathered by another man. Mr Whitehead had promised to support the woman and help her care for the child if she took the pregnancy to full term. The deceased and the woman had also become engaged to be married, and the deceased treated the child as his own. The woman and the child argued that Mr Whitehead had a moral responsibility to provide for their maintenance and support under the Administration and Probate Act 1958 (Vic).

The legal issues that the court had to decide centred on whether the deceased had a moral responsibility to support the woman and her child, and if so, to what extent. The court had to determine whether the relationship between the woman, the child, and Mr Whitehead constituted a social unit tantamount to a family, thereby triggering a moral obligation on the part of Mr Whitehead to provide for their maintenance and support. The court also needed to consider the provisions of the Administration and Probate Act 1958 (Vic), specifically sections 91(1), (2), (3) and (4), which outline the criteria for claims against an estate for maintenance.

In its reasoning, the court held that the relationship between Mr Whitehead, the woman, and the child did indeed constitute a social unit that was tantamount to a family. The court found that Mr Whitehead had promised to support the woman and help her care for the child if she took the pregnancy to full term, and that he had treated the child as his own. The court also noted that the child saw Mr Whitehead as his "bestest dad in the whole world." Based on these findings, the court held that Mr Whitehead had a moral responsibility to provide for the maintenance and support of the woman and the child. The court further found that the provisions of the Administration and Probate Act 1958 (Vic) applied, and that the woman and the child were entitled to a reasonable provision for their maintenance and support from Mr Whitehead’s estate.

The court ordered that the woman and the child were entitled to a reasonable provision for their maintenance and support from Mr Whitehead’s estate, and directed the trustees to make the necessary payments. The court did not specify the exact amount of the provision, leaving it to the trustees to determine a reasonable amount based on the circumstances of the case.

Orders