Wilden v Meller - [2023] VSC 119

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…

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 Wilden v Meller

Details

AGLC: Wilden v Meller [2023] VSC 119
Case: [2023] VSC 119
Decision Date: 20 March 2023

CaseChat Overview and Summary

The case of Wilden v Meller involves an application by the plaintiff, Wilden, seeking further provision under Part IV of the Administration and Probate Act 1958 (Vic). Wilden and the deceased were married for 25 years, and the deceased passed away without leaving any children. The will provided Wilden with a life interest in the marital home and a fund for repairs and maintenance, but Wilden argued that these provisions were inadequate for proper maintenance and support. The beneficiaries under the will were the deceased’s adult nephews and various charities.

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