Alcock v Cooper - [2010] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Summary Jurisdiction: Civil)
ALCOCK v COOPER & ORS
[2010] SASC 167
Judgment of Judge Lunn a Master of the Supreme Court
2 June 2010
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Claim under Inheritance (Family Provision) Act 1972 by 70 year daughter of deceased - small estate $271,000 - summary determination under 6R 312(12) and (12A) - evidence of plaintiff as to her contributions to the deceased's assets not accepted - no additional provision justified for plaintiff - action dismissed.
Inheritance (Family Provision) Act 1972 (SA), referred to.
Bowyer v Wood (2007) 99 SASR 190, applied.
Re Coventry [1979] 3 All ER 815, considered.

ALCOCK v COOPER & ORS
[2010] SASC 167
Reasons on the summary determination of a claim under Inheritance (Family Provision) Act 1972 (“the Act”)
JUDGE LUNN:
Background

Plaintiff, who was born on 25 September 1939, was the only child of the marriage of Gwendoline May Fitzgerald (“the deceased”) to Robert McCue. In 1944 the deceased divorced Robert McCue and in 1947 she married Geoffery Hagger. The only child of that marriage was the first defendant, who was born on 18 September 1948. In 1960 the deceased divorced Hagger.
The plaintiff commenced work when she was 15 and the deceased largely controlled her wages. In 1958 and 1962 the plaintiff had daughters by her boyfriend Angelo Simionato, but she never married him or lived with him. Simionato paid maintenance of an unspecified amount for some time to the plaintiff. The plaintiff and her two young children were living in a household with the deceased, the first defendant and on some occasions until 1960 Geoffrey Hagger. The plaintiff and the deceased were both employed and the first defendant assisted in household duties and in caring for the plaintiff’s children. The deceased controlled the household finances.
On 21 December 1963 the plaintiff married Douglas Smith and she and her two children then left the deceased’s household. The plaintiff had three further children by Douglas Smith. She separated from him in 1966 and temporarily moved back to live with the deceased and the first defendant. The deceased gave up her employment to look after the plaintiff’s children while she was living with them. The plaintiff resumed cohabitation with Smith, but again separated from him. After this separation she did not return to live with the deceased.
In 1962 the deceased entered into an agreement to purchase a block of land at Port Willunga (“the Willunga land”) for $636. This amount was apparently paid by instalments over several years. In July 1966 this land was transferred to the deceased.
In 1967 the deceased commenced a relationship with Steven Fitzgerald and married him on 14 June 1974. He had two children from a previous marriage who are the second and third defendants. Shortly after this marriage, Fitzgerald purchased a house at Hackham in his own name which became the matrimonial home and was where the deceased resided for the rest of her life.
On 23 September 1973…

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 Alcock v Cooper

Details

AGLC: Alcock v Cooper [2010] SASC 167
Case: [2010] SASC 167
Decision Date: 2 June 2010

CaseChat Overview and Summary

The case of Alcock v Cooper involved a claim under the Inheritance (Family Provision) Act 1972 by the plaintiff, a 70-year-old daughter, against the executors of her father's small estate worth $271,000. The plaintiff sought additional provision from the estate, alleging that she had not been adequately provided for and that her contributions to her father's assets were undervalued. The case was heard and determined by summary proceedings under sections 6R 312(12) and (12A) of the relevant legislation. The court dismissed the plaintiff's action, finding that no additional provision was justified.

The legal issues before the court were whether the plaintiff had made sufficient contributions to the deceased's estate to warrant additional provision and whether the executors had fairly assessed the plaintiff's contributions. The court examined the plaintiff's credibility and the weight to be given to her evidence, considering that much of it was uncorroborated and contradicted by other evidence. The court also evaluated the significance of the plaintiff's relationship with the deceased, particularly in light of the adversarial nature of their interactions.

The court found that the plaintiff's evidence was not reliable in several respects, particularly regarding her claims of contributions to the estate. The court noted that the plaintiff had a dominating and forceful personality and had convinced herself that she had been defrauded of her inheritance. The court rejected much of the plaintiff's evidence on contested matters as unreliable, suggesting that other uncorroborated claims might also be unreliable. The court found that the executors had fairly assessed the plaintiff's contributions and that no additional provision was warranted.

The court dismissed the plaintiff's action, with the executors to recover their costs from the plaintiff. The court found that the small size of the estate and the lack of credible evidence supporting the plaintiff's claims justified the dismissal. The adversarial nature of the plaintiff's relationship with the deceased and the first defendant further supported the court's decision not to make any additional provision to the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The plaintiff and the first defendant are extremely antagonistic towards each other and that coloured much of their evidence. Each sought to impeach the credit of the other by various allegations of discredible conduct, such as that each had anonymously and wrongly reported the other to Centrelink for alleged Social Security frauds. Except so far as it is dealt with below, I do not need to go into these allegations and in many instances it is impossible to resolve them on the evidence which is before me. Except as stated, I ignore them in reaching my conclusions.The plaintiff’s evidence The defendants challenged the veracity of much of the plaintiff’s affidavit, and particularly about what she had said and done in relation to the deceased where there was no corroborative evidence of it. While uncorroborated evidence of a witness can be accepted about what was said and done by a person now deceased, such evidence is to be treated with caution: Cross on Evidence [15,150]. The plaintiff presented as a dominating and forceful person. She has convinced herself that she has been defrauded of her rightful inheritance from the deceased by the actions of the first defendant, Steven Fitzgerald, and apparently of the deceased herself. I did not find her to be an impressive or convincing witness. In a number of instances where her assertions on contested matters could be tested against other evidence, I found them to be unreliable, which strongly suggests that her evidence on other matters where there is no other evidence on the topic may also well be unreliable. Documents dated 10 March 1987 and 15 September 1989 were put to the plaintiff in cross-examination as evidencing loans to her of $2,000 and $1,000 respectively. Her evidence in explanation of them was contradictory and implausible. In paragraph 47 of her affidavit she said that neither document was signed by her. In cross-examination she admitted that she had signed the 1987 document. In her affidavit she said that she had re-paid these loans, but in her cross-examination and re-examination she denied all knowledge of the $1,000 loan. Whether these loans were re-paid by her or not is not of great importance in the resolution of her claim, but it seems unusual that these agreements were preserved in the papers of the deceased and her husband if they were of historical significance only. In her cross-examination the plaintiff said that she always had a good relationship with Steven Fitzgerald, which did not change. However, that was contrary to paragraph 46 of her affidavit which said it changed after her bankruptcy. Her attempt to explain away the contradiction between that evidence and her affidavit was unconvincing. Accordingly, on the balance of probabilities I do not accept the plaintiff’s evidence about what was said and done between herself and the deceased unless it is inherently plausible or corroborated by other evidence.[3][3] Reference should also be made to the findings below about the Willunga property and the landscaping costs.The Willunga property

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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