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Testator’s family maintenance cases

How to challenge the validity of a Will.

Leahey v Trescowthick [1999]

This claim by grandchildren sets out the following 12 factors the court must consider in determining the adequacy of provision and the responsibility of the deceased for the applicant:

  • family or other relationship with the deceased
  • any obligations or responsibilities of the deceased to the applicant
  • size and nature of the estate
  • financial resources and needs of an applicant
  • whether an applicant has any physical, mental or intellectual disability
  • age of an applicant
  • whether there was any contribution by an applicant to building up the estate or the welfare of the deceased
  • whether an applicant was being maintained by the deceased before the death of the deceased, either wholly or partly
  • any benefits previously given by the deceased to an applicant
  • the liability of any other person to maintain an applicant
  • character and conduct of the applicant
  • any other matter the court considers relevant.

See Leahey v Trescowthick [1999] VSC 409 (22 October 1999).

Sherlock v Guest [1999]

If there is any obligation by grandparent to provide for grandchildren—no evidence that plaintiffs have made out their claim.

See Sherlock v Guest [1999] VSC 431 (12 November 1999).

Macewan Shaw v Shaw [2003]

No moral obligation to provide for grandchild by virtue of the relationship per se.

See Macewan Shaw v Shaw[2003] VSC 318 (2 September 2003).

Marshall v Spillane [2001]

The applicant was a baby brother (aged 66). He claimed that their relationship (and hence his sister’s obligation to provide for him) was like that of mother and son. Her husband died soon after and so all of her estate was Willed to him and went to his siblings.

The fact that he is an adult male no longer puts him in a special class with particular difficulties because he is prima facie able to maintain and support himself. The needs of the competing beneficiary are not great.

Some provision ought to have been made in his favour in order to satisfy the obligation which lay upon his sister to acknowledge his claims.

Held: 2/3 to husband's estate and 1/3 to brother. (The deceased had no children of her own and owned property that she kept secret from her husband.)

See Marshall v Spillane [2001] VSC 371 (28 September 2001).

Lee v Hearn [2002]

Friend/carer—cites Callaway JA in Grey v Harrison [1977] 2 VR 245, 359

‘…The touchstone of what a wise and just testator would have thought his or her moral duty has been accepted for many years. It supplies the norm that the legislature left unexpressed ... It also reflects the view that there is no legislative justification to abridge freedom of testation unless the testator has breached a moral duty, or alternatively that there is no judicial reason to exercise the statutory discretion except for the purpose of remedying such a breach.’

The plaintiff has failed to make out a moral duty owed by the deceased to him.

See Lee v Hearn [2002] VSC 208 (31 May 2002).

Henderson v Rowden [2001]

An adult step-son against estate of step-mother. There is no moral obligation or responsibility on deceased to make provision for maintenance and support of step-son. The mere fact of such a relationship, in the absence of any other factor, does not give rise to such an obligation or responsibility.

See Henderson v Rowden [2001] VSC 267 (14 August 2001).

Schmidt v Watkins [2002]

There was considerable conflict between applicant's version given to court of the relationship between himself and his deceased de facto spouse and the version given by him to DSS.

The court looked at the second reading speech for testator family maintenance provisions and found the aim was to:

  • broaden the classes of persons who could make a claim, but not to broaden the obligations to provide for kin
  • ensure that only genuine applications are made.

The bill allows the court to order costs against an applicant if the court is satisfied that the application was made frivolously, vexatiously or with no reasonable prospect of success.

The Act sets out a three-stage process. The court must have regard to a set of factors common to all three Section 91(4) provides, in other words, that in determining the questions:

  • whether or not the deceased had the relevant responsibility (this, of course, being the first stage)
  • whether or not the distribution of his or her estate made that provision to which the legislation is directed (the second stage)
  • the amount of provision (if any) which should be ordered (the third stage).

The court must have regard to the factors listed in the sub-section, beginning at paragraph (e). The substance of those paragraphs, so far as they relate to the present case, is set out below:

  1. any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, its length
  2. any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate
  3. the size and nature of the estate and any charges and liabilities to which it is subject
  4. the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future
  5. any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
  6. the age of the applicant
  7. any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased
  8. any benefits previously given by the deceased to any applicant or to any beneficiary
  9. whether the applicant was being maintained by the deceased before her death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility
  10. the liability of any other person to maintain the applicant
  11. the character and conduct of the applicant or any other person
  12. any other matter the court considers relevant.

See Schmidt v Watkins [2002] VSC 273 (24 July 2002).

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