Barns v Barns No. Scciv-99-333 - [2001] SASC 187

BARNS V BARNS
[2001] SASC 187

JUDGE BURLEY. The plaintiff is the daughter of Lyle Phillip Barns who died on the 14th day of August 1998. By his Will dated 2 May 1996 the deceased made no provision for his daughter. The Will was admitted to Probate on 14 January 1999. The plaintiff has applied pursuant to the provisions of the Inheritance (Family Provision) Act 1972 (the Act) for an order for provision out of the estate on the ground that she has been left without adequate provision for her proper maintenance, education or advancement in life (Section 7(1)(b)).
The first defendant is the son of the deceased and is the executor of his estate. The second defendant is the widow of the deceased and is the sole beneficiary under his Will. There are two infant claimants, two of the children of the plaintiff, who also, pursuant to Section 7(1)(b) of the Act seek an order for provision out of the estate.
The claims made by the plaintiff and the claimants are resisted by the first defendant, not in his capacity as executor, but in his capacity as the beneficiary of the trust which, it is alleged, has arisen by virtue of a Deed between the deceased, the second defendant and the first defendant dated 2 May 1996 (the Deed) whereby the deceased and the second defendant covenanted to make mutual Wills leaving their estate to each other and that the survivor of them would leave his or her estate to the first defendant.
The second defendant also opposes the claims of the plaintiff and the claimants.
Apart from any other ground of defence that may be available to the defendants, they each maintain that because of the Deed of 2 May 1996, there is now no property in the estate of the deceased which may be the subject of an order by the Court for provision out of the estate. This ground of opposition was known to the plaintiff when she commenced the proceedings because she has dealt with it specifically in her statement of claim filed in support of her claim. The plaintiff (and the claimants) assert that the Deed was void because it is contrary to public policy and that consequently no trust can arise under the Deed in respect of the property forming the estate of the deceased. The plaintiff also contends that, even if a trust of the type relied upon by the defendants has arisen under the Deed, the Court may nevertheless make an order in favour of the plaintiff in respect of the property the subject of the trust if the Court has otherwise made out her claim pursuant to the provisions of the Act.
Prior to the trial, on the application of the parties, I directed that the issues relating to the validity of the Deed be heard and determined before any other issues in the action. The parties requested a trial on these preliminary points because, if the Court determined that…

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

Case: [2001] SASC 187
Decision Date: 7 June 2001

CaseChat Overview and Summary

The case of Barns v Barns, brought before the Supreme Court of South Australia, involved a daughter contesting the provisions of her father’s Will, seeking provision for her maintenance under the Inheritance (Family Provision) Act 1972. The father had died, leaving his estate to his widow, with the son as the executor of the estate. The daughter, along with her children, sought to challenge the Will on the grounds that they were inadequately provided for. The defendants argued that a Deed executed by the father, mother, and son on the day the Will was made, which aimed to prevent any claims under the Act, should be upheld, and thus the estate should remain with the son. The court had to decide whether the Deed was valid and whether it precluded the daughter’s claim for provision from the estate.

The court first assessed the validity of the Deed, concluding that if the Deed was valid, it would create a trust in favor of the son, making the estate inaccessible for the court’s order under the Act. The court then examined the principle that a contract aiming to preclude claims under the Act is contrary to public policy, citing cases such as Lieberman and Anor v Morris. It held that such contracts, including the Deed in question, were void as they undermined the public policy of ensuring family members are not left without adequate provision. Consequently, the Deed was declared void, and no trust could arise from it, allowing the court to proceed with the daughter’s claim for provision from the estate.

The final outcome of the case was that the Deed was void, and the court could consider the daughter’s application for provision from the estate. The court did not make specific orders in this judgment but set the stage for further proceedings to determine the daughter’s entitlement to provision from her father’s estate.

Orders