| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2021 03488
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Will and Estate of ANNETTE LOUISE MELLER (also known as ANNETTE LOUISE WILDEN), deceased
BETWEEN:
| DAVID WILLIAM WILDEN | Plaintiff |
| v | |
| STEPHEN DAVID MELLER (who is sued as the executor of the Will of ANNETTE LOUISE MELLER, deceased) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2023 |
DATE OF JUDGMENT: | 20 March 2023 |
CASE MAY BE CITED AS: | Wilden v Meller |
MEDIUM NEUTRAL CITATION: | [2023] VSC 119 |
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TESTATORS FAMILY MAINTENANCE – Application for further provision under Part IV of the Administration and Probate Act 1958 (Vic) – Where plaintiff and deceased were married for 25 years and the deceased had no children – Life interest in marital home and fund for repairs and maintenance provided for the plaintiff in the will – Whether adequate provision for the proper maintenance and support of the plaintiff – Administration and Probate Act 1958 (Vic) ss 90, 91, 91A – Beneficiaries under the will were adult nephews and charities – Will failed to make adequate provision for proper maintenance and support of widower – Luciano v Rosenblum (1985) 2 NSWLR 65 referred to – Crisp v Burns Philp Trustee Company Ltd (Unreported, Holland J, 18 December 1979) referred to – Principle of freedom of testation and intentions of the deceased – Portable life interest order and absolute interest in residuary estate granted to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A S Bartfeld | Rotman & Morris |
| For the Defendant | Mr R Boaden | Lawson Hughes Peter Walsh |
HER HONOUR:
Introduction
These reasons concern an application by the plaintiff, David William Wilden (‘David’), for further provision from the estate of his late wife, Annette Louise Meller (‘Annette’) pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
Annette died on 4 September 2019, at the age of 75, from complications following surgery for bowel cancer. At the time of her death, she and David had been married for 25 years, and had been living in a property in Ivanhoe East owned by Annette (‘York Avenue property’). During the course of their marriage, David and Annette had shared household expenses and household duties roughly equally. However, by 2016, David was Annette’s full time carer owing to her various health problems.
The York Avenue property was Annette’s family home, which was purchased by her parents in 1955, and which Annette inherited from her late mother in 1981. Annette had faced some mental health challenges in her youth, and at the time of her mother’s death, she was single. It appears that Annette’s late mother considered that Annette needed particular support from her estate, and accordingly, her brother David received little or nothing from their mother’s estate after she passed away.
Neither Annette or her husband…
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- AGLC
- Wilden v Meller [2023] VSC 119
- Case
- [2023] VSC 119
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred around whether the provisions made in the deceased's will were adequate for the proper maintenance and support of Wilden, as required by sections 90, 91, and 91A of the Administration and Probate Act 1958 (Vic). The court had to balance the principle of freedom of testation and the intentions of the deceased against the needs of Wilden as a surviving spouse. Relevant cases such as Luciano v Rosenblum and Crisp v Burns Philp Trustee Company Ltd were cited to provide context and guidance on similar issues.
The court found that the provisions in the will did not constitute adequate provision for Wilden’s proper maintenance and support. The court granted Wilden a portable life interest order over the marital home and an absolute interest in the residuary estate. This decision recognised the necessity to ensure the surviving spouse's adequate support and took into account the lengthy marriage and absence of children.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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