Allan Roland Heathfield v Keith Berkeley Wight & Ors No. Scgrg-96-140 Judgment No. 6011 Number of Pages 5 Testator's Family Maintenance - [1997] SASC 6011

IN THE SUPREME COURT OF SOUTH AUSTRALIA

Judge Burley Supreme Court Master

Testator's family maintenance - application by elderly adult son - testator made no provision for Plaintiff in his will - small estate - residuary beneficiaries nephew and niece of testator - testator and plaintiff's mother divorced when plaintiff aged 7 - little contact between plaintiff and testator thereafter - nature of the moral duty of parent to child Gorton & ors v Parkes (1989) 17 NSWLR 1; Cooper & anor v Dungan (1976) 9 ALR 93 and Dennes v Coats & Beitz (1979) 82 LSJS 192 , applied.

ADELAIDE, 17 October 1996 (hearing), 21 February 1997 (decision)

#DATE 21:2:1997

#ADD 16:6:1997

Plaintiff :

Counsel: Mr J S Roder

Solicitors: Gun & Davey

Defendant Keith Berkeley Wight:

In Person

Defendants Rosemary Preece, Brian Bolland:

Solicitors: Mr W H Hall

Order: application allowed.

JUDGE BURLEY

1. By his amended summons dated 9 January 1996 the plaintiff seeks, pursuant to the provisions of the Inheritance ( Family Provision ) Act 1972, the following order: - "An order that such provision as the court thinks fit made out of the estate of the said Arthur Roland Heathfield late of 27 Ballantyne Street Hawthorn in the said State Retired Painter deceased who died at Hawthorn in the said State on the sixteenth day of October 1994 for the maintenance, education and advancement in life of the plaintiff." 1. The net estate is now worth less than $100,000 and consequently the summons may be dealt with in a summary way pursuant to SCR119.16. The parties elected to proceed on affidavit without cross examination of any of the deponents.

2. The first defendant, a solicitor, is the executor of the estate. His affidavit sworn on the 7th May 1996 indicates that he has got in the assets of the estate except for a debt due by the 3rd defendant described by the executor as follows:- "Monies due and payable by Brian Bolland to the estate for monies due and payable by the estate pursuant to a mortage granted in favour of the said Brian Bolland by Bank SA (formerly the State Bank of South Australia) being Memorandum of Mortgage number 7318607 registered over Certificate of Title Register Book Volume 2360 Folio 1 - mortgagee Bank SA - $41,754.93." 3. The deceased provided the above mortgage as security for a debt owed by the 3rd defendant to the State Bank. The 3rd defendant was unable to pay the debt and the bank realised its security. The third defendant remains unable to repay the debt to the estate. The 3rd defendant filed a brief affidavit, sworn on the 6 September 1996, as to his income and assets. He is clearly unable to pay the debt by instalments from his income. He has a joint equity with his wife in a residential property. His share in the equity amounts to about $16,000 and he has a motor vehicle valued at about $2,000. It is clear that if…

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.

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Details

AGLC: Allan Roland Heathfield v Keith Berkeley Wight & Ors No. Scgrg-96-140 Judgment No. 6011 Number of Pages 5 Testator's Family Maintenance [1997] SASC 6011
Case: [1997] SASC 6011
Decision Date: 21 February 1997

CaseChat Overview and Summary

In the Supreme Court of South Australia, Allan Roland Heathfield, the plaintiff, brought a claim against Keith Berkeley Wight and others, the defendants, under the Inheritance (Family Provision) Act 1972, seeking maintenance, education, and advancement from the estate of his deceased father, Arthur Roland Heathfield. The estate's value was less than $100,000, allowing for a summary hearing. The plaintiff, the only child of the deceased, was not provided for in his father's will. The deceased and the plaintiff's mother divorced when the plaintiff was seven, and the plaintiff had little to no contact with his father thereafter. The plaintiff endured a difficult childhood, living in an orphanage and with relatives, enduring abuse from his stepfather, and being denied education and employment opportunities by his stepfather. The plaintiff eventually enlisted in the Royal Australian Air Force and had limited contact with his father as an adult.

The court needed to determine whether the plaintiff had a demonstrable need for maintenance and whether there was a moral duty on the part of the testator to provide for the plaintiff. The court considered the nature of the relationship between the testator and the plaintiff, the testator's failure to provide for the plaintiff during his childhood and adulthood, and the plaintiff's financial situation and health. The court applied the principles established in relevant case law, such as Gorton & ors v Parkes, Cooper & anor v Dungan, and Dennes v Coats & Beitz.

The court found that the plaintiff had a demonstrable need for maintenance due to his poor health and limited assets, consisting mainly of personal savings and a car. The court also found that the testator had a moral duty to provide for the plaintiff, given the lack of contact and support from the testator throughout the plaintiff's life. The court held that the testator's failure to provide for the plaintiff, particularly during his childhood when he was subjected to abuse and neglect, demonstrated a breach of the moral duty owed by a parent to a child. The court awarded the plaintiff one-third of the residuary estate, to be divided equally between the plaintiff, the nephew, and the niece of the deceased.

The court ordered that the executor of the estate should consider taking legal action against the third defendant to recover funds to enable the plaintiff and the second defendant to receive their full one-third share of the residuary estate's value. The plaintiff's solicitor was instructed to prepare the minutes of the order, which would be subject to approval by the court. The court also reserved the right to hear counsel's submissions on costs.

Orders