Baily v De Vries
[2020] TASSC 42
•26 August 2020
[2020] TASSC 42
COURT: SUPREME COURT OF TASMANIA
CITATION: Baily v DE Vries [2020] TASSC 42
PARTIES: BAILY, Sally
BENNETT, Cheryl Maree
v
DE VRIES, Mark Richard
LUNN, Patrick James Forbes (as executors of the estate of the late Raymond Leonard Griggs)
VOSS, Cheryl Frances
GRIGGS, Cathy Barbara
FILE NOS: 1986/2017 and 2646/2017
DELIVERED ON: 26 August 2020
DELIVERED AT: Hobart
HEARING DATES: 18, 22 May 2020, 11, 24 June 2020, 5, 14 August 2020
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Adult daughters – Estate comprised mostly of farming property – Three daughters – Farmland devised to one daughter – No material bequests to the other two daughters – Further provision made for the other two daughters.
Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1433]
REPRESENTATION:
Counsel:
First Applicant: T Williams
Second Applicant: A Bond
First Respondents: J Otlowski, S McCullough (18 May) and
S McCullough (5 August)
Second Respondent: Z Nicholson
Third Respondent: D Zeeman
Solicitors:
First Applicant: Timothy Williams
Second Applicant: Murdoch Clarke
First Respondents: Simmons Wolfhagen
Second Respondent: Tremayne Fay Rheinberger
Third Respondent: Butler McIntyre & Butler
Judgment Number: [2020] TASSC 42
Number of paragraphs: 58
Serial No 42/2020
File No 1986/2017
2646/2017
SALLY BAILY and CHERYL MAREE BENNETT v
MARK RICHARD DE VRIES, PATRICK JAMES FORBES LUNN,
CHERYL FRANCES VOSS and CATHY BARBARA GRIGGS
REASONS FOR JUDGMENT HOLT AsJ
26 August 2020
Introduction
Raymond Leonard Griggs died on 19 September 2016 aged 84 years. He was survived by his partner, Cheryl Voss (the second respondent), then aged 67 years. The couple had been in a significant relationship since commencing cohabitation in 1988. Cheryl Voss had been widowed in 1982 when her husband died of drowning, leaving her with the care of her four young children. Mr Griggs was also survived by his three adult daughters, Sally Baily (the first applicant), Cheryl Bennett (the second applicant), and Cathy Griggs (the third respondent), respectively then aged 55, 56, and 53 years. The mother of Mr Griggs' three daughters had died in 1992, having been separated from Mr Griggs since the early 1980's and divorced several years later. The daughters had inherited nothing from their mother's estate.
Mr Griggs made a will about a month before he died appointing the first respondents as his executors.
He left the family home at 5 Glen Huon Road, Huonville to the second respondent. The home sits on 2602 square metres of land and as of 2020 had a value of $895,000. The will specifies that the residue of the estate was to pass on an intestacy. The residue has a current value, after the payment of estate liabilities of about $170,000, and under intestacy legislation passes to the second respondent. Mr Griggs and the second respondent held a joint bank account having a credit balance at the date of death of about $400,000. This money did not form part of the estate but instead vested in the second respondent by reason of survivorship. The second respondent also acquired by survivorship the couple's jointly owned Subaru motor vehicle.
Adjoining the family home are six other parcels of land all with the address 5 Glen Huon Road. These included a parcel of vacant land comprising 2.02 hectares and a parcel of land containing a workshop and adjoining offices comprising 1.240 hectares. The other four parcels, being residential type allotments ranging in size between 622 square metres and 700 square metres, because of zoning restrictions and access restrictions are, according to a 2020 valuation, of nominal value only. The value of the two large parcels, as at 2020, is $515,000. If the four small residential size parcels were sold with or adhered to the two large parcels the total value would rise from $515,000 to $520,000. If the four small parcels were adhered to or sold with the family home, the value of the family home would rise from $895,000 to $980,000.
Under the will, all that was left to the two applicants were the four small residential sized parcels of land and so if things remain as they are, based upon the 2020 valuations, the applicants can expect to receive nothing from the estate.
The two large parcels were left to the third respondent. Further provision was made for the third respondent under the will. Plant and equipment having a value of approximately $150,000 was left to her. The will also provides that the third respondent is to receive a parcel of land at 12 Walton Street Huonville, comprising about 26 hectares and containing a workshop and residential flat above, with the 2020 value of that parcel being $605,000. The will made provision for the third respondent to also receive a house and land at 61 North Glen Road having a value in 2019 of $250,000. However, this property was held by Mr Griggs in trust for the third respondent and so does not form an estate asset. The house and land has now been transferred to the third respondent in accordance with the terms of the trust.
The applicants, who will take nothing of value under the terms of the will, according to the 2020 valuations, have each brought proceedings for provision or further provision under the Testators Family Maintenance Act 1912. The proceedings were consolidated by order made 17 October 2017. If any further provision is to be made for either or both of the applicants it will have to come out of either or both of the shares of the second and third respondents.
The operation of the Act
The Act, s 3(1) is as follows:
"3 Claims for maintenance against estate of deceased person
(1)If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
I set out some matters which inform as to the application of the provision:
· The spouse (including de facto spouse) and the children of a deceased are eligible to bring applications for provision: The Act s 3A.
· To come within the operation of the provision an applicant must establish, as a matter of fact, that he or she has been "left without adequate provision for his (or her) proper maintenance and support": The Act, s 3(1).
· The question of whether the applicant is within the operation of the provision (ie: is an eligible person who has been left without adequate provision for his or her proper maintenance and support) is answered as at the date of death of the testator or testatrix: Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; 95 CLR 494.
· The matter is to be considered from the perspective of a wise and just testator or testatrix: Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479.
· The testator or testatrix is assumed to have been aware of all of the relevant circumstances of those having a claim on the bounty, including reasonably foreseeable eventualities existing at the date of death: Litchfield v Smith [2010] VSC 466 at [26].
· In making the appraisal the Court is to connect the general, but value laden language, of the provision to prevailing community standards: Vigolo v Bostin [2005] HCA 11; 221 CLR 191.
· The appraisal generally requires consideration to be given to the applicant's financial position, the size and nature of the deceased's estate and the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty: Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 210.
· A spouse, if assets permit, should be left secure in the matrimonial home with sufficient funds to continue to live in the style to which he or she is accustomed and with a buffer to meet contingencies: Gargano v Coves [2018] NSWSC 985 at [160].
· An adult child does not need to establish special need. Where an adult child has fallen on hard times and there are assets available to provide a buffer against contingencies or an adult child has been unable to accumulate superannuation or make provision for retirement and estate assets are sufficient, provision might be made under the legislation depending upon a detailed analysis of all of the circumstances of the case: Taylor v Farrugia [2009] NSWSC 801 at [58].
· All relevant circumstances should be considered: Singer at 210. For example, if a child of the deceased has a dependent child or children this is a relevant circumstance: Goodman v Windeyer [1980] HCA 31; 144 CLR 490 at 498.
· If an eligible person or beneficiary has contributed to the building up of the estate of the deceased, this will also be relevant: Hughes v National Trustees, Executors and Agency Company of Australasia Limited [1979] HCA 2; 143 CLR 134 at 147.
· The word "proper" in the provision is of considerable importance. It means proper in all the circumstances of the case. Those circumstances will include the standard of living enjoyed by the applicant and those having competing claims, the need for assistance and the extent of the testator's or testatrix's ability to meet the claims: McCosker v McCosker [1957] HCA 82; 97 CLR 566 at 571-572.
· The word "adequate" is concerned with the quantum of the provision which should be made so that the provision is proper: Bosch at [476].
· The word "maintenance" may imply mere continuity of a pre-existing state of affairs or provision over and above mere sufficiency and the word "support" may imply provision beyond bare need: Vigolo at [115].
· If the jurisdictional question of fact, namely whether the applicant has been "left without adequate provision for … proper maintenance and support" is answered in the affirmative, "the Court or a judge may in its or his (or her) discretion" order provision or further provision: The Act s 3(1).
· The legislation is not designed to allow the Court or a judge to rewrite a will without restraint so as to impose the judge's own view of how the testamentary power should have been exercised: Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; 107 CLR 9 at 19.
· Regard may be had to the deceased's person's reasons for making the dispositions made in the will: The Act, s 8A.
· The way in which the discretion, if it arises, is to be exercised will be influenced by the same factors taken into account in coming to the conclusion that an applicant has been left without adequate provision for his or her proper maintenance and support: Singer at [210].
· Where provision, or further provision, is to be made, regard may be had to the funds of the estate as they stand at the time of the order, rather than the judge being confined to the position at the date of death: White v Barron [1980] HCA 14; 144 CLR 431 at 437.
The considerations
The usual considerations, which are not exhaustive, are as set out in Singer, referred to earlier in these reasons. I will consider the matters relevant to the assessment of the applicants' claims in the following order:
·The size and nature of the estate.
·The applicants' financial circumstances.
·The claims of the primary beneficiaries named in the will.
·The relationship between the deceased and the applicants and the relationship between the deceased and the primary estate beneficiaries.
·Other matters.
However, before moving to these matters mention needs to be made of the eligibility of the applicants to bring their claims under the Act.
The eligibility of the applicants to bring their claims under the Act
The Act, s 3A is as follows:
"3A Persons entitled to claim under this Act
An application under subsection (1) of section three for provision out of the estate of a deceased person may be made by or on behalf of all or any of the following persons, that is to say:
(a) The spouse of the deceased person;
(b) The children of the deceased person;
(c) The parents of the deceased person, if the deceased person dies without leaving a spouse or any children;
(d) A person whose marriage to the deceased person has been dissolved or annulled and who at the date of the death of the deceased person was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court, or to an agreement or otherwise; and
(e) A person whose significant relationship, within the meaning of the Relationships Act 2003 , with the deceased person had ceased before the date of the death of the deceased person and who was receiving or entitled to receive maintenance from the deceased person whether pursuant to an order of a court or to an agreement or otherwise."
There was no dispute that the first applicant was a child of the deceased. However, the third respondent put in issue the paternity of the second applicant.
The deceased is listed as the father of the second applicant on her birth certificate. This gives rise to a presumption of parentage pursuant to the Status ofChildren Act 1974, s 8A, which is as follows:
"8A Presumption of parentage arising from registration of birth
A person whose name is entered as the parent of a child in a register of births or parentage information kept under a law of this State, the Commonwealth, another State, a Territory or a prescribed overseas jurisdiction is presumed to be the parent of the child."
However the presumption is rebuttable, s 19 provides:
"19 Rebuttal of presumptions
A presumption arising under this Act is rebuttable by proof on a balance of probabilities."
During the pre-trial phase, the third respondent brought an interlocutory application seeking an order requiring a parentage testing procedure to be undertaken. It was proposed to use a sample of DNA to be taken from a tissue sample extracted from the deceased (for medical diagnostic purposes) shortly prior to his death, with the other sample to be taken from the second applicant.
Whether an order should be made requiring a parentage testing procedure to be carried out is a discretionary matter under the Status of Children Act, s 13. The Act does not specify the matters which should be taken into account in the exercise of the discretion. In dealing with equivalent legislation, Hallen J in Kohari v NSW Trustee and Guardian [2016] NSWSC 1372 said at [34] that the discretion is unfettered but is to be exercised judicially and in accordance with the specific facts arising in each case.
In my reasons for dismissing the application, delivered orally on 27 March 2020, I concluded that the raising of the issue was not an abuse of process as the third respondent had found documents sufficient to justify putting paternity in issue. I was satisfied that the results of testing, if ordered, would likely be of significant probative value. But the second applicant suffered from a condition resulting in her having a suppressed immune system. I accepted evidence that, in light of the Covid-19 pandemic, the taking of a sample would expose the second applicant to a special health risk. Waiting for the pandemic to pass would potentially cause a lengthy delay in bringing to trial the substantive applications for family provision.
The dismissal of the application did not prevent the third respondent from seeking to rebut the presumption arising from the birth certificate in other ways. However, at the conclusion of the evidence counsel for the third respondent made no submission challenging paternity.
Accordingly, I proceed on the basis that the applicants are eligible to bring their applications for family provision.
The evidence
The evidence presented at the trial by way of affidavits and exhibits was voluminous. It is neither practical nor necessary for me to refer to it in detail. The facts which I recite in the course of these reasons, except where otherwise stated, were not in controversy by conclusion of the evidence.
The size and nature of the estate
The estate of the deceased is comprised almost entirely of farming assets including the farmhouse located in the Huon Valley. The deceased came from a family which had for generations been located in the area. He was born and raised in the Huon Valley. In the 1970's he purchased farmland and farming had been his major activity ever since. In 2008 he and his partner, the second respondent, built the farmhouse for use as their family home at a cost of about $1m.
The only aspect pertaining to the value of the estate which is in controversy is the value of the four residential size building allotments at 5 Glen Huon Road. The third respondent has said that in October 2018 these allotments had a government valuation of $200,000. No documentary evidence verifying the valuation or the valuation methodology was supplied.
A detailed valuation report of valuer Mr Russell Cripps dated 13 May 2020 was tendered in evidence without objection and without Mr Cripps being called upon to submit to questioning. Mr Cripps said in his report that the four allotments are each zoned "Significant Agriculture" in which zone residential development can only occur if it is necessary to facilitate management of the land for agricultural purposes. Mr Cripps took in to account that the four allotments, which front on to the Huon Highway are on a section of road the subject of a proclamation of limited access under the Roads and Jetties Act 1935 and proceeded on the basis that the access licences which had issued only enabled access off the Huon Highway for the purpose of facilitating agricultural use of the land. The four allotments are also the subject of the Scenic Landscape Code under the local planning ordinance with the code requiring the preservation of scenic landscape corridors viewable from the highway. Mr Cripps took into account the uses of the land permitted under the ordinance and the uses which may be permissible with the favourable exercise of discretions under the ordinance. He also acknowledged the possibility of a zoning change occurring in the future, in particular a possible re-zoning to "Rural Resource" as suggested by a planning officer at the Huon Valley Council, and the issue of less restrictive access licences, but was unable to quantify the likelihood of such changes occurring. He concluded that the four residential size allotments presently have only a nominal value to anyone other than the owner or owners of the adjoining land at 5 Glen Huon Road who, under the terms of the will, will be the second and third respondents.
There is no evidence of either of the second or third respondents expressing an interest in acquiring any or all of the four allotments.
I have no reason to do other than accept the valuation of Mr Cripps in full. I conclude that the four allotments devised to the applicants are of no material value to them.
The question of whether an applicant has been left without adequate provision for his or her proper maintenance and support is to be answered as at the date of death. In the present case accurate valuations of the estate property at the date of death are not available. However, it is common ground that no significant property improvements have been undertaken since Mr Griggs death. The parties are content that I use the 2020 valuations, referred to earlier in these reasons. As the relative values of the various estate assets and the proportions in which the testator intended his estate to be divided are unlikely to have changed since the date of death, the current valuations provide information applicable at the date of death.
The applicants' financial circumstances
The first applicant, Sally Baily, was aged 55 years at the date of death of the deceased. She was divorced with her four children no longer dependent upon her. Her only asset of significance was her home at Mornington which was subject to a mortgage having a debit balance of about $130,000. She had about $10,000 in superannuation investments. She had been a self-employed bookkeeper for about 30 years, earning an annual income of about $18,000 per annum gross. She also received Centrelink benefits totalling about $5,000 per year. Her financial position improved since the death of the deceased. She had acquired more clients, and at the time of the trial had a gross weekly income from her bookkeeping work of about $1,100. She is now approaching retirement age and has little by way of retirement savings and the mortgage debt on her house has not materially reduced since the death of the deceased.
The second applicant, Cheryl Bennett, was aged 56 years at the date of death of the deceased. She is married and lives with her husband. The government valuation for their home is $300,000. The home is subject to a mortgage securing a debt of about $145,000. She has about $40,000 in superannuation investments. She is employed by a real estate company and at the time of the death of the deceased had a gross taxable income of about $43,000. Her pay has not increased much since then. Her husband earns about $1,000 per week. The couple have modest assets in addition to their home but the value of these assets is exceeded by unsecured debts. The couple have no dependent children. The second applicant suffers from multiple serious health conditions. She has bladder cancer, urticarial vasculitis (a condition which causes skin problems) and lupus which has compromised her immune system. In addition, the second applicant suffers from psychological sequelae arising from a traumatic incident occurring when she was a child. Obviously, these conditions have the potential to shorten her working life. The current debit balance on the mortgage account over the home is still about $145,000.
The claims of the primary beneficiaries named in the will
The second respondent, Cheryl Voss, had been in a marriage like relationship with the deceased for 28 years up until the date of his death. During the relationship farming properties were bought and sold, with the family home built in 2008. The second respondent had received money as a result of the death of her first husband. She had $250,000 left by the time she and the deceased built their home in 2008 and used the whole of this money to assist with the construction cost. A lift has been installed in the home with the intention with it remaining a suitable residence for persons in their elderly years. The second respondent attended to all of the household tasks during the relationship and also assisted the deceased with manual farm labour and undertook many administrative duties to assist with the running of his farm business and bus business. Except for a brief period, the second respondent had not been in paid employment since the beginning of the relationship and so she had no superannuation savings. She has a strong connection with the family home left to her in the will. With the receipt of the residue of the estate, being about $170,000 and the transfer to her, by survivorship, of the money in the joint bank account, being about $400,000, she has sufficient cash reserves to pay for the upkeep and maintenance of the family home. She is in good health with no short-term need to move out of the home.
The third respondent, Cathy Griggs, is unmarried, having been divorced in 1988. As at the date of death of the deceased she had the care of her 11 year old daughter and still has the care of that daughter. With the financial help of the father, the daughter attends a private school in Hobart.
The third respondent owns, and still owns, an investment property at Blackmans Bay and at the date of death of the deceased owned a second investment property at Marion Bay, which she sold about seven months after the deceased's death for the sum of $192,000. She had, and still has, a beneficial interest in a school bus business, which she originally said had a value of $42,000. She had superannuation investments having a value of about $23,000. She also owned a security business, which at its peak, had 14 employees but she ceased to operate the business in 2014 and at the time of the death of the deceased the business had no value. In an affidavit sworn in October 2018, the third respondent listed her assets and liabilities giving a net value and assets over liabilities of $110,000. The list did not include the unencumbered house at 61 North Glen Road at Huonville which was held by her father in trust for her. She disclosed her claim over the house in her affidavit, but as her claim to be the beneficial owner under the trust had not been resolved, she did not include it in her list of assets. According to a 2019 valuation, the house was then worth $250,000. In an affidavit sworn in April 2020, the third respondent provided updated figures for the value of the buses and motor vehicle being used for the school bus business, beneficially owned by her. The total was $106,000. The third respondent had not assigned any value for the goodwill of the business in her affidavits but, under cross-examination, conceded that the goodwill was worth about $150,000.
I conclude that, as at the date of the death of the deceased, the third respondent's assets over liabilities were in excess of $500,000, putting her in a significantly better financial position than that of her two older sisters.
The third respondent continues to operate the bus business and the estate farming land. Her capacity to continue doing so is problematic. She was diagnosed with breast cancer in April 2019 but has declined radiotherapy and chemotherapy. She said in an affidavit sworn in November 2017 that the viability of the farm left to her is dependent upon a large number of unpaid labour hours.
The relationship between the deceased and the applicants and the relationship between the deceased and the primary estate beneficiaries
The relationship between the deceased and the first applicant was that of a normal father and daughter loving relationship with frequent contact and occasional assistance for each other.
The relationship between the deceased and the second applicant was mostly dysfunctional. The second applicant had left home by the age of 16, returning for about three years at age 19. She lived in Western Australia for many years and had telephone contact with her father about once a month. Her father visited her in Western Australia on one occasion, staying for about a week, following his separation from his wife in the early 1980's. The second applicant had given evidence in favour of her mother during her parent's divorce proceedings after which the second applicant and the deceased were not on speaking terms for several years. The relationship improved when the deceased telephoned the second applicant with a view to reconciliation. The second applicant returned to Tasmania to live several years ago.
The deceased did not wish to distinguish between the first and second applicants in his will, leaving them equal shares.
The relationship between the deceased and the second respondent was that of a normal couple. The second respondent helped around the farm as well as attending to all of the household tasks.
The relationship between the deceased and the third respondent was very strong. The third respondent had lived in the Huon Valley for most of her life. Her father had taught her about breeding livestock, farm management, basic veterinary matters, the operation of farm equipment, mechanical repairs and welding. She assisted her father in the operation of the school bus business which was later given to her. Her work for her father in the operation of the bus business was paid work. She also assisted her father around the farm and introduced her own ideas about farm improvements and farm diversification. Her work around the farm was unpaid work. She was the only one of her sisters to maintain a strong tie with the family's Huon Valley heritage and is the only one of her sisters with the skills to carry on the farming operation. This is reflected by the deceased devising to her his farming properties along with associated plant and equipment. Plainly, the deceased expected the third respondent to carry on the family farming business. In a handwritten testamentary note made a few weeks before his death, the deceased expressed a wish that the third respondent "carries on the farming pursuit as I would had I lived".
Other matters
Unlike the third respondent, the applicants did not receive gifts of substance during the life of the deceased. The third respondent was married at a young age in 1981 and was given occupancy by her parents of a small brick cottage at 61 North Glen Road. Over the years she carried out improvements on the property. When her parents were divorced they regarded the property as that of the third respondent and so excluded it from the asset pool to be divided. It has been treated as owned by the third respondent ever since.
In 2012 the deceased, due to his advancing years, was no longer in a position to operate his school bus service. He gave the operation to the third respondent who continues with the business. As set out earlier in these reasons, the business has a current value of about $250,000.
The result is that as at the date of death of the deceased the third respondent owned three houses and a school bus business, with the inter vivos gifts to her significantly contributing to the superior financial position which she enjoyed over her two sisters.
The third respondent's arguments
Counsel for the third respondent advanced the following contentions:
· There should not be a finding of fact that the applicants had been left without adequate provision for their proper maintenance and support having regard to the following matters.
· In any event, the applicants should not have a favourable exercise of the discretion to make further provision having regard to the following matters.
· The applicants were secure in their own homes, had paid employment and unlike the third respondent did not have the care of a dependent child and the third respondent was not in a materially better financial position to that of her sisters.
· The relationship between the first applicant and the deceased was simply one of keeping in contact. The relationship between the second applicant and the deceased was not harmonious. The third respondent had a very strong relationship with the deceased, assisting him with his business affairs and hence contributing to the maintenance and enhancement of estate assets.
· The assistance given by the third respondent to the deceased was at the expense of her building on other remunerative pursuits, in particular the maintenance of her security business.
· Overriding the testamentary wishes of the deceased would be for the Court to adopt the position of a "fond and foolish" father rather than a "wise and just" father.
The jurisdictional question of fact – Were either or both of the applicants left without adequate provision for their proper maintenance and support?
The estate, excluding the family home left to the deceased's de facto spouse, had a value in excess of $1m. There was enough to make some material provision for each of the two applicants so as to provide assistance for them as they approached retirement age. Both have mortgages over their homes and little by way of retirement savings and so I reject the submission of the third respondent that they were in a financially secure position. Although there is not enough in the estate to ensure that they have security in their homes and a fund to provide for a comfortable retirement, some provision for them would assist. Despite the fact that the applicants' relationship with the deceased was not nearly as strong as that enjoyed by the third respondent, there was still the fact that they were children of the deceased. The claim of the third respondent, although strong for the reasons set out by counsel, is not so strong as to displace the obligation to make some material provision for the applicants. Despite counsel's submission to the contrary, the third respondent was in a much superior financial position to that of her sisters. The inter vivos gifts to her of the home at 61 North Glen Road and the bus business had greatly contributed to the third respondent's relatively strong financial position.
The jurisdictional question is answered in favour of both of the applicants.
What provision, if any, should be made?
The matters which have had led to my conclusion that the applicants were left without adequate provision for their proper maintenance and support also lead me to conclude that further provision should be made for them.
The further provision should not come out of the share of the second respondent. She was the long standing de facto spouse of the deceased, helped build up the assets including the family home and should be left, as she has been, with the home, sufficient resources to maintain it and sufficient funds to enable her to enjoy the occasional luxury such as a holiday. She should be left with sufficient funds to enable her to purchase from the estate the eastern most allotment of the four residential sized allotments, as the driveway to the home currently runs through this allotment and acquisition will add value to the home.
Any provision which should be made for the applicants out of the share of the third respondent, although a matter of discretion, should not be set based upon my own notions of fairness. I confine myself to further provisions which do not exceed what, in the circumstances of the case, amounts to adequate provision for their proper maintenance and support.
In fixing the amount of the provision I take into account that the deceased intended to make some provision by devising to the applicants the four residential sized allotments. Unfortunately, because of zoning and other restrictions, the allotments have been found to be of nominal value only. In fixing the provision, I also take into account the deceased's desire that the third respondent would continue the farming operation.
In framing the appropriate orders, it is my intention is to leave open the possibility of the third respondent, perhaps with the use of her non-estate assets, such as her investment property at Blackmans Bay, being able to purchase either the farming land at 5 Glen Huon Road, or the farming land at 12 Walton Street. With this in mind, the bequest to her of the plant and equipment will not be disturbed.
The farming land, including the four residential sized allotments, should be offered for sale. The second respondent might be a potential purchaser of the eastern most residential sized allotment as the driveway to her home runs through this property. The third respondent, as I have said, might be a potential purchaser of either the Glen Huon Road farmland or the Walton Street farmland.
The land, other than that on which the family home sits, should be sold with the proceeds, after payment of debts and estate administration expenses, divided into four equal parts with one part to go to each of the applicants and the other two parts to go to the third respondent.
Orders
The Act, s 9 is as follows:
"9 Contents of order
(1)Every order under this Act making provision for any person shall specify, inter alia –
(a)the amount and nature of such provision;
(b)the manner in which such provision shall be made; or be raised or paid, out of some, and what, part of the estate of the deceased person;
(c)how and by whom the burden of any such provision shall be borne; and
(d)any conditions, restrictions, or limitations imposed by the Court or judge.
(2)The Court or judge shall in every case in which provision is made under this Act direct that a certified copy of such order be made upon the probate of the will or letters of administration, with the will annexed, of the estate of the deceased person, or, as the case may be, upon the letters of administration of the estate of the deceased person, and for that purpose shall retain such probate or letters until such copy is made.
(3)Subject to this Act, every provision made under this Act operates and takes effect –
(a)in the case of the estate of a person who dies testate, as if it had been made by a codicil to the will of the deceased person executed immediately before his death; or
(b)in the case of the estate of a person who dies intestate, as a modification of the provisions of the Intestacy Act 2010 .
(4)If in the opinion of the Court or a judge it is desirable so to do, having regard to all the circumstances of the case, the Court or judge may, in any order under this Act making provision for the spouse of a deceased person, direct that that provision shall operate for the benefit of the spouse notwithstanding that he or she may, at any time after the making of the order, remarry or enter into a significant relationship, within the meaning of the Relationships Act 2003 .
(5)The Court or a judge may, at any time, on the application of the executor or administrator of the estate of a deceased person or of any person who is beneficially entitled to, or interested in, any part of that estate –
(a)rescind any order making any provision under this Act out of that estate or any part thereof; or
(b)alter any such order by increasing or reducing the amount of any provision made thereby or by varying such order in such manner as the Court or judge thinks proper.
(5A)The Court or a judge shall not, in the exercise of the power conferred on it or him by paragraph (b) of subsection (5) of this section, alter an order under this Act so as to disturb a distribution of any part of the estate that was lawfully made before the making of the application for the alteration.
(6)A person who makes an application under subsection (5) of this section shall cause notice of the application to be served on all persons taking any benefit under the order sought to be rescinded or altered.
(7)Upon an order being made under this Act, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order."
Because the order operates as if it were a codicil to the will made by the testator on 23 August 2016, I need to refer to the form of the will. In particular, cl 3 which is as follows:
"3 Distribution of my estate
3.1 My Executors hold my estate on trust:
(a)to give my home situated at 5 Glen Road Huonville in Tasmania being more particularly described as lot 1 on Lark & Creese Development Application Plan dated 8th August 2016 to my partner CHERYL FRANCES VOSS if she survives me;
(b)to give my property situated at 61 North Glen Road Huonville in Tasmania being more particularly described in Certificate of Title Volume 129264, Folio 1 my property situated at 12 Walton Street Huonville in Tasmania being more particularly described in Certificate of Title Volume 167352 Folio 2 and my property more particularly described in Certificate of Title Volume 64394 Folio 4 together with all plant and equipment owned by me to my daughter CATHY BARBARA GRIGGS if she survives me;
(c)to give my four blocks of land shown on Lark & Creese Development Application Plan dated 8th August 2016 and described on that plan as CT 71549 lots 3, 4, 5 and 6 to my daughters SALLY BAILY and CHERYL BENNETT if they survive me;
(d)to give the balance land shown on Lark & Creese Development Application Plan dated 8th August 2016 and the machinery shed to my daughter CATHY BARBARA GRIGGS if she survives me;
(e)At the time of signing this Will, I am unable to decided who should receive the residue of my Estate and I have been advised that the Intestacy Act will determine who receives the residue of my Estate."
The will already contains a power vested in the trustees to sell estate property.
It is ordered:
1That provision be made for the applicants in the following terms. Clause 3 of the will is to be substituted with:
Distribution of my estate
3.1My Executors hold my estate on trust:
(a)to give my home situated at 5 Glen Road Huonville in Tasmania being more particularly described as lot 1 on Lark & Creese Development Application Plan dated 8th August 2016 to my partner CHERYL FRANCES VOSS;
(b)to pay to my partner CHERYL FRANCES VOSS the sum of $170,000;
(c)to give to my daughter, CATHY BARBARA GRIGGS, all of my plant and equipment.
(d)after the payment of my debts and estate administration expenses, to divide the balance of my estate into four equal parts and to give one part to my daughter SALLY BAILY, one part to my daughter CHERYL BENNETT, and two parts to my daughter CATHY BARBARA GRIGGS.
In accordance with the Act, s 9(2) I order: -
2The first respondents are to bring into Court the grant of probate and a certified copy of these orders is to be made on the probate of the will.
I will hear the parties as to the costs of the proceedings.
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