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 167Reasons 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…
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- Alcock v Cooper [2010] SASC 167
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- [2010] SASC 167
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CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
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