[1990] VR 527
ANDERSON v TEBONERAS and Another
SUPREME COURT OF VICTORIA
ORMISTON J
17-19, 22 May, 06 June 1989
[1990] VR 527 AT 527
Administration and probate — Family provision — Application by — adult ex
nuptial son for further provision — Principles applicable — Nature of special
need or claim — Paternity — Originating motion for declaration — Status of
Children Act 1974 (No. 8602), s7, s10.
.
The plaintiff was the ex nuptial son of the testator, who died on 26 May 1987,
aged 70, leaving an estate worth, at the time of his death, between $360,000
and $370,000. The testator was survived by his lawful wife, their son (then
aged 39) and daughter (then aged 46). The daughter had married; her own
daughter was the executrix of the estate. The plaintiff's mother, with whom
the testator had commenced a de facto relationship in 1961 or 1962,
predeceased the testator. A brother of the plaintiff also survived the
testator.
Provision was made in the testator's will for his widow, his daughter, his
son, his granddaughter and his other ex nuptial son. No provision was made for
the plaintiff.
The plaintiff had left school at 16, and trained as a hairdresser. Between
1982 and 1984 he worked for the testator in the testator's hairdressing
business. He lived at home and received $20 to $30 per week from the testator
as wages, which was far less than the award. In 1984 the testator lent the
plaintiff $8000 to purchase a barber's shop, of which less than half was
repaid; in 1986 the plaintiff took over one of the testator's salons; in 1982
or 1983 the testator bought a suburban block of land for the plaintiff, and
later gave the plaintiff $11,000 towards the cost of building a home on it,
and $1000 for the construction of a fence. At the time of his father's death
the plaintiff was 22, married without children, not greatly experienced in
running his own business, and much of his income (and that of his wife) was
taken up in the repayment of loans. At the time of the hearing the plaintiff
and his wife had debts of approximately $43,600, and the estate was worth
between $470,000 and $475,000.
The plaintiff made a claim for provision under Pt4 of the Administration and
Probate Act 1958. He also brought an originating motion for a declaration of
paternity under s10 of the Status of Children Act 1974 to establish that he
was a son of the testator. It was conceded that he was, and there was direct
evidence of admissions made by the testator. S7 of the Status of Children Act
required, inter alia, that paternity be "admitted (expressly or by
implication) by or established against the father in his lifetime" for the
purposes of a claim under Pt4 of the Administration and Probate Act.
Continue Reading This Report
[1990] VR 527
Best Value
Digital Subscription
$45/mo
or $450/yrSAVE $90