Bain v Ingham

Case [2025] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BAIN & ANOR v INGHAM & ANOR

[2025] SASC 22

Judgment of the Honourable Auxiliary Associate Justice Flourentzou  

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - TREATMENT OF PARTICULAR APPLICANTS - GRANDCHILDREN AND OTHERS

Mary Ellen Ingham died on 12 November 2022 - the deceased had two children: Dianne Mary Ingham and Allan Maxwell Ingham - the deceased was only survived by Allan - Dianne died during the lifetime of the deceased but was survived by Alison and Glenn - during the deceased’s lifetime, she executed a will on 5 February 2015 - pursuant to the terms of her will, she appointed Allan as her sole executor and beneficiary - Alison and Glenn sought provision from the deceased’s estate for their maintenance, education and advancement in life - the net value of the estate of the deceased as at the date of the trial was approximately $630,000.

Held:

1. Glenn has not established that he has been left without adequate provision for his maintenance, education and advancement in life. Glenn’s claim is dismissed.

2. Alison has established that she has been left without adequate provision for her maintenance, education and advancement in life. She is to receive a fixed legacy of $70,000 from the estate of the deceased inclusive of interest.

Inheritance (Family Provision) Act 1972 (SA) s 6 and s 7; Succession Act 2023 (SA) s 2 of Schedule 4 and s 115(5), referred to.
Parker & Ors v Australian Executor Trustees Limited [2016] SASC 64; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201; In the Estate of Puckridge, deceased (1978) 20 SASR 72; Eckert v Starick & Eckert (1993) 172 LSJS 150; Eckert v Starick [1994] SASC 4584; Wall v Crane & Ors [2009] SASC 382; Columbus v Efstathis & Ors [2019] SASC 149; Grey v Harrison [1997] 2 VR 359; Re Fulop (Deceased) (1987) 8 NSWLR 679; Schmidt v Watkins [2002] VSC 273 ; Wesley v Wesley (1998) 71 SASR 1; Vigolo v Bostin (2005) 221 CLR 191, considered.

BAIN & ANOR v INGHAM & ANOR
[2025] SASC 22

  1. It is convenient in these reasons to refer to each family member by their first name. I do so without intending any disrespect.

  2. Mary Ellen Ingham, late of 86 Oaklands Road Glengowrie 5044, died at Glengowrie on 12 November 2022 (“the Deceased”).[1] The Deceased was married to Maxwell James Ingham (“Maxwell”). Maxwell died on 14 August 2014.[2] The Deceased and Maxwell had two children. Dianne Mary Ingham (“Dianne”) and Allan Maxwell Ingham (“Allan”). The Deceased was only survived by Allan. Tragically, Dianne was murdered by her second husband on 28 August 1992.[3]

    [1]    Death Certificate for Marry Ellen Ingham, Applicants’ tender book, pages 074–075 (inclusive).

    [2]    Affidavit of Glenn Peter Bain sworn on 31 July 2023, paragraph 4.2.

    [3]    Affidavit of Glenn Peter Bain sworn on 31 July 2023, paragraph 4.3.

  3. Dianne was survived by two children,…

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AGLC
Bain v Ingham [2025] SASC 22
Case
[2025] SASC 22
Decision Date

CaseChat Overview and Summary

In Bain v Ingham, Glenn Bain sought a pecuniary legacy from his grandmother’s estate, Dianne Mary Dale. The dispute arose following the sale of Dianne’s home and her placement in an aged care facility. Glenn had been assured by his grandparents, Dianne and Allan, that he and his sister would receive their late mother’s share of the estate. Dianne had not left a will, and Glenn believed his grandfather had misled him regarding its existence. Glenn sought a copy of the will and any previous wills made in the last twenty years.

The primary legal issue before the court was whether Glenn, as a grandchild, had a valid moral claim against his grandmother’s estate under the Family Provision Act. The court considered whether Glenn had been left without adequate provision for his maintenance, education, or advancement, and if there was a moral obligation on Dianne to make such provision. The court examined the relationship between Glenn and Dianne, including any promises made by Dianne and her husband over the years, and the impact of Dianne’s dementia on her ability to make a valid will.

The court found that Glenn had a valid moral claim on his grandmother’s bounty, despite the absence of a developed relationship between them. The court acknowledged the repeated promises made by Dianne and her husband and the emotional impact of Dianne’s actions towards Glenn. The court awarded Glenn a pecuniary legacy of $50,000 from his grandfather’s share of the residue, to be held by the Public Trustee and disbursed to meet Glenn’s needs.

The court’s decision underscores the importance of considering the unique circumstances of each case when assessing claims under the Family Provision Act. The court recognised that while grandchildren generally do not have a right to provision from their grandparents, a valid moral claim may arise in specific situations. The outcome of this case highlights the significance of the relationship between the claimant and the deceased, and the impact of any promises made regarding the distribution of the estate.

Orders

Orders of the court

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Background

Background to the litigation

A letter dated 18 June 2021 was then sent from Grope Hamilton Lawyers, acting on behalf of Glenn, to Allan. At the start of that letter, it states that although Grope Hamilton are not acting for Alison, they are writing the letter with Alison in mind. The relevant paragraphs of that letter state:[74][74] Second respondent’s tender book, pages 3–5 (inclusive).Background1.Following the murder of your sister, our client’s mother Dianne Mary Dale, nee Ingham, in 1992, at a time when our client was aged 12, and his sister was aged 17, your mother and father, as our client’s grandparents, promised that our client and his sister would receive the 50% share of their estate that their late mother would have otherwise received. 2.This was a grave promise, which was repeated many times over the years.3.Our client instructs that you have previously been assisting your mother with managing her finances in terms of paying bills.4.Mrs Ingham spent a period in the dementia ward at Flinders Medical Centre. This was from approximately October 2020 to January 2021.5.Our client’s grandmother’s home at 2 Ross Street, Seacombe Gardens was sold for $437,500.00 on 12 April 2021.6.Mrs Ingham entered Allambi Aged Care on 5 January 2021.7.Our client’s research suggests that it costs approximately $550,000.00 to $650,000.00 to purchase a position in this aged care facility. Recent eventsOur client further instructs us that:8.On 28 January 2021, he made some enquiries of you by SMS regarding the existence of a will for his grandmother. Our client wished to confirm that her will was in accordance with her (and her husband’s) long expressed wishes. Our client, at that time, suggested that any remaining money be placed in a trust account.9.You did not respond, except to cut our client off as a contact on social media.10.When our client and his family went to see his grandmother on 31 January 2021, she told them to get out and to not come back, in emotional and strong terms.11.The necessary implication of this unprecedented behaviour by our client’s grandmother was that you had made misleading statements to her about our client’s conduct. To raise these matters with your mother, at her age and condition, is pointless and inappropriate, and constituted cruel behaviour. 12.Our client’s cousin, Laura Ingham, your daughter, then asserted that we had gone to see his grandmother on 31 January 2021 in order to ask her to change her will [presumably to include our client and his sister]. Our client had, in fact, presumed that he and his sister were beneficiaries.13.This occurred in circumstances where our client had not ever been specifically aware of the existence or contents of his grandmother’s will. He assumed that it would reflect the promises made by her and her husband over 28 years. Request for copy of will14.Our client hereby formally requests:14.1. A full and complete copy of the last will and testament of his grandmother;14.2. In the event that the will has been made in the last twenty (20) years, then he seeks a copy of all previous wills, made and revoked during that period.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour then said at [133]–[135]:Consideration of Andrew’s ClaimCourts will often find in IFP claims that a grandchild of a testator has not been left without adequate provision. That is in part because the parents of the grandchild can be expected to provide the necessary support and in part because of the relative remoteness of the relationship between the grandchild and the deceased.However, in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased. This was the view taken by King CJ in The Estate of Puckridge. That moral claim may be less than that of the deceased’s own children, but it may nevertheless be a valid moral claim.In the present case, I am satisfied that Andrew did have a valid moral claim on his grandfather’s bounty. That moral claim existed even in the absence of a developed relationship between the two of them…(Footnotes omitted) His Honour then said at [142]:Having regard to all the relevant factors, I consider that a pecuniary legacy of $50,000 should be made in favour of Andrew. That amount should be deducted from David’s share of the residue, and should be paid to the Public Trustee to be held on Andrew’s behalf and disbursed, from time to time, to meet Andrew’s needs.Columbus v Efstathis & Ors[23] [23] [2019] SASC 149. Eva Columbus died on 20 August 2014. The deceased was survived by three children, Olga Efstathis, Stephanie Columbus and Frederick Steven Columbus (“Fred”). John Constantine Columbus (“John”) was a child of the deceased who died in 1993. Fred also died shortly after the deceased on 24 December 2015. Yiannis Christian Columbus commenced the substantive action on 5 December 2018 seeking provision from the deceased’s estate. Yiannis is the son of John. Yiannis’ claim was filed and served within the limitation period prescribed by s 8(1) of the Act. Yiannoula Constantina Lisson, a granddaughter of the deceased, and the daughter of Fred, filed an application seeking to be joined to the proceedings as a claimant. She also sought an order that the time within which the application for joinder may be brought be extended. At the date of the argument, the current net value of the deceased’s estate was not clear but may have been in the vicinity of $2 million. The Honourable Justice Stanley held there was no reasonable prospect of Yiannoula being able to establish any moral obligation on the part of the deceased to have made provision for her from her estate. His Honour assessed the merits of Yiannoula’s claim and said at [21]–[27]:A claimant for the benefit of the Act must establish, inter alia, that he or she has been left without adequate provision for his or her proper maintenance, education or advancement by reason of the testamentary dispositions or the operation of the laws of intestacy in respect of the estate against which the claim is brought. Whether a claimant can satisfy the Court of this matter depends on the Court’s satisfaction that the testator was under a moral obligation to make such adequate provision for the claimant from his or her estate.In Bowditch v NSW Trustee and Guardian, Hallen AsJ (as his Honour then was) suggested guidelines for claims made by grandchildren in the following terms:In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.In Chapple v Wilcox Barrett JA approved the guidelines identified in Bowditch as providing a useful touchstone that may be applied with circumspection by judges called upon to ascertain and apply “the feeling and judgment of fair and reasonable members of the community” in such cases. With minor qualifications those guidelines were also approved by Basten JA and Gleeson JA. This statement of principle was followed by the Court of Appeal of the Northern Territory in Simonetto & Anor v Dick.In Simonetto Riley CJ, with whom Southwood and Barr JJ agreed, noted that while the New South Wales legislative scheme differed from that in the Northern Territory, by requiring that a grandchild could only apply if he or she was wholly or substantially maintained or supported by the deceased, the guidelines in Bowditch remained apposite to the Northern Territory legislation. The Northern Territory legislation is in substantially the same terms as the Act. As the trial judge in Simonetto Hiley J observed, the guidelines, with the exception of sub-paragraph (e), are apposite to claims made under legislation elsewhere than New South Wales, including the Northern Territory, because they apply to the adequate provision for the proper maintenance, education and advancement in life of the claimant.In this State a similar approach was taken in Wall v Crane & Ors where White J said: Courts will often find in IFP claims that a grandchild of a testator has not been left without adequate provision. That is in part because the parents of the grandchild can be expected to provide the necessary support and in part because of the relative remoteness of the relationship between the grandchild and the deceased. [Citations omitted].However, White J recognised that in particular circumstances the blood relationship can give rise to a valid moral claim by a grandchild on the bounty of the deceased. That moral claim may be less than that of the deceased’s own children but may nevertheless be a valid moral claim.In that case, White J found that a grandchild did have a valid moral claim on his grandfather’s bounty in circumstances where for various reasons, neither the child’s father nor mother could be relied upon to provide adequately for his proper maintenance, education and advancement in life.(Footnotes omitted)