Feehan v Toomey [2014] VSC 488


This Victorian case concerned an application for provision of maintenance and support by a granddaughter from the estate of her late grandmother pursuant to section 91 of the Administration and Probate Act 1958 (VIC) (the Act).

Marie Loyola Cleary (the deceased), died on 24 February 2012. Her last Will was dated 26 January 2010 (the Will). Probate of the Will was granted to the defendants, a son and a daughter of the deceased, on 10 May 2012.

The deceased was survived by eight of her nine children. One of the deceased’s daughters, Eileen, predeceased her in 2010, leaving three children, who were the three plaintiffs. Under the terms of the Will Eileen’s children did not inherit her share.

Mr Jamie Switzer, the second plaintiff died in February 2014 and his claim was not pressed on his behalf. Ms Sarah Cleary, the third plaintiff, was unable to be contacted by her instructing solicitor. As such, the application focused on the claim of the first plaintiff Ms Khristiana Feehan (the plaintiff).

The plaintiff’s mother did not have a close relationship with the deceased, having been estranged for most of the plaintiff’s life. The plaintiff had virtually no relationship with the deceased. She had visited her only a number of times in the last 40 years of the deceased’s life. She telephoned her occasionally and sent some Christmas cards over that time. However, the deceased was not receptive to the plaintiff, and did not want a relationship with her.

Under her Will the deceased left the residue of her estate to her eight surviving children, with gifts over to the children of her surviving children. It was noted that under the deceased’s penultimate will, dated 2 August 2001, she left the residue of her estate to her nine children, with gifts over to the children of each of her children, including the three plaintiffs. However, no challenge was made to the validity of the deceased’slastWill.

The estate of the deceased was valued at $831,257.53 as at the date of death. The plaintiff submitted that the extent of the provision for the plaintiff should be a one-ninth share of the estate.

The plaintiff made four main submissions:

  • Her financial circumstances were such that she should be entitled to further provision from the deceased’s estate (especially where the deceased was aware of her financial situation).
  • She had made an effort to build a relationship with the deceased, and the deceased did not respond to those attempts.
  • She and her siblings should have been treated equally with the deceased’s other grandchildren, all of whom were entitled to a gift over of their parent’s share.

In her penultimate will, the deceased recognised a responsibility to provide for the plaintiff by including such a gift over. 

In assessing the criteria under section 91 of the Act and the facts generally the Court remarked:

  • Such claims for provision are fact- specific.
  • Grandchildren can neither be ‘ruled in’ nor ‘ruled out’ as a person to whom  a  testamentary  obligation  is owed until all the facts are examined.
  • The  moral  obligation  for  provision primarily rests with the child’s parents,  not  the  grandparent.  The fact of the family relationship alone does  not  establish  a  responsibility for a grandparent to provide for a grandchild.
  • Personal connection or warm relations are one part of a multi- faceted consideration of the factors required to be determined under section 91 of the Act. The plaintiff had no relationship with the deceased.
  • Given the large number of children for whom the deceased had a recognised obligation to provide, it was not a large estate.
  • From the incomplete financial information provided by the plaintiff it appeared that the plaintiff had limited financial resources. It was found that, she was “not financially well off by any means”, but neither was “she living in any real poverty”.
  • There is no legal requirement for children or grandchildren to be treated equally under a will.


The Court found that having regard to all of the matters set out in section 91(4)(e)-(p) of the Act, the plaintiff failed to establish to the requisite standard that the deceased had a responsibility at the date of her death to make provision for her. Accordingly, the plaintiff’s claim was dismissed.


The Victorian Parliament introduced the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 (Vic) (Bill) on 20 August 2014  which  proposed  to  make  radical changes to the Administration and Probate Act 1958 (Vic) in relation to family provision claims.

One of the proposed changes was to greatly limit who can make a claim for a family provision order by defining an “eligible person” as:

  • a spouse or domestic partner (current or former if property settlement has not been reached or finalised)
  • children and step-children who are under 18 years old at the date of death
  • children and step-children who are full- time students between 18-25 years old at the date of death
  • a disabled child of any age (definition of disability has been adopted from the​ National Disability Insurance Scheme Act 2013).

However following debate by the Victorian Parliament this definition was removed. While the definition is now narrower than the current position, spouses, former spouses and children, irrespective of age or financial circumstances can challenge a Will. Grandchildren however, will only qualify as an eligible person if they were wholly or partly dependent on the deceased for their maintenance and support.

Under the new definition the plaintiff in this case would not have satisfied the definition as an eligible claimant and therefore, would not have had a basis on which to initiate proceedings.

The Bill has now been passed and is due to commence on 1 January 2015.