Lee v Hearn

(2005) 11 VR 270; [2005] VSCA 127

Victorian Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Family provision
3. › Eligibility of applicant
4. › Whether deceased had responsibility to make provision
5. › Adult applicant unrelated to deceased
6. › Standard to be applied
7. › Whether moral duty of wise and just testator remains applicable test
8. › Administration and Probate Act 1958 (Vic), s 91(1), (3), (4)
1. Succession
2. › Family provision
3. › Relevant considerations
4. › Whether enumerated statutory considerations themselves supply answer
5. › Role of moral duty standard in applying statutory criteria
6. › Open-ended nature of s 91(4)(p)
7. › Administration and Probate Act 1958 (Vic), s 91(4)(a)-(p)
1. Succession
2. › Family provision
3. › Factual findings
4. › Nature of relationship between deceased and applicant
5. › Whether caretaker arrangement constituted maintenance
6. › Whether deceased assumed responsibility for applicant's maintenance
7. › Whether findings open to trial judge

Quick Take

Under the Administration and Probate Act 1958 (Vic) s.91, the threshold question whether the deceased had 'responsibility to make provision' for an applicant requires application of the moral duty standard of the wise and just testator; the enumerated considerations in s.91(4)(e)-(p) are incapable of themselves providing the answer. The word 'responsibility' in s.91(1) connotes moral duty. English authorities on presumed assumption of responsibility from the fact of maintenance (Jolley v Iliffe; In re B, decd) do not apply in Victoria because s.1(3) of the Inheritance (Provision for Family and Dependants) Act 1975 (UK) has no counterpart in s.91.