(The Honourable Justice Debelle, The Honourable Justice Nyland and The Honourable Justice Anderson)
7 September 2007
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Application by adult daughter for provision out of estate of testatrix pursuant to s 7 of Inheritance (Family Provision) Act 1972 – testatrix made bequests of two thirds of her estate to siblings of testatrix and their families and charities – whether plaintiff has been left with adequate provision for her proper maintenance, education and advancement – whether trial judge had correctly assessed the plaintiff’s financial position – whether plaintiff had a moral claim to a greater share of estate or whether testatrix had moral obligation to plaintiff – appeal allowed.
In the Estate of ANN WILLOUGHBY WOOD BOWYER v WOOD & ORS [2007] SASC 327
Full Court: Debelle, Nyland and Anderson JJ
DEBELLE J. The appellant applied for an order under s 7 of the Inheritance…
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
Bowyer v Wood [2007] SASC 327
Case
[2007] SASC 327
Decision Date
CaseChat Overview and Summary
The appeal concerns a claim by an adult daughter, the applicant, for provision out of the estate of her deceased mother, the testatrix, under section 7 of the Inheritance (Family Provision) Act 1972. The testatrix made bequests of two thirds of her estate to the siblings of the testatrix and their families, and to charities. The applicant argued she had been left with inadequate provision for her proper maintenance, education, and advancement. The central legal issues for the court were whether the trial judge had correctly assessed the applicant’s financial position and whether the testatrix had made adequate provision for the applicant. Additionally, the court needed to determine if the applicant had a moral claim to a greater share of the estate or whether the testatrix had a moral obligation to her.
The court found that the trial judge had made errors in assessing the applicant’s financial position and had failed to consider all relevant factors, including the size of the estate and the moral obligations of the testatrix towards her children. The trial judge’s conclusion that the applicant could maintain herself from her own resources was based on an incomplete consideration of the applicant’s financial situation. Furthermore, the judge did not adequately address whether the testatrix had made adequate provision for the applicant, which is essential under the statutory provisions. The court highlighted that the trial judge should have considered not only the applicant’s needs but also the moral claims and the size of the estate. The court concluded that these omissions were serious flaws in the trial judge’s reasoning and resulted in an incorrect assessment of the applicant’s situation. As a result, the appeal was allowed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The only other witness called by the defendants was Ms Phillipa Fletcher, who is one of the sisters of the testatrix and the plaintiff’s aunt. Her evidence was that she had made an offer to the plaintiff to pay the loan of $140,000 for her but the plaintiff had rejected the offer. The evidence has little utility. The terms of the offer were vague. The trial judge did not refer to that evidence and appears to have disregarded it. He was correct to do so.Little Evidence of Means of Siblings There was no evidence as to the means of each of the siblings of the testatrix other than Ms Fletcher. She was cross-examined as to her means. She was aged 63 years at the trial. She is unmarried. She did not state her annual income but she has income from two sources. The first is from the sales of an educational board game which she had produced and the second is the income from a share portfolio valued at about $1.2 million. In my view, her portfolio would be likely to produce an income of approximately $60,000 per annum. She used to earn some additional income from painting but she has not painted in recent years. She owns a house property in Stanley Street, North Adelaide. It is not subject to any mortgage. This evidence indicates that Ms Fletcher is reasonably well off. It does not suggest that she had any moral claim on the testatrix and she did not make such a claim. It will have been noticed that the value of her share portfolio is about the same as the value of the estate of the testatrix. There was no evidence of any kind as to the financial circumstances of the other two siblings of the testatrix or whether they had any claim on the testatrix. Her brother Grant was aged 70 years at the death of the testatrix and her sister Judith was 67 years old. The financial circumstances of the siblings and their families was relevant: Vigolo v Bostin (2005) 221 CLR 191 at [126]. If they were pensioners, the testatrix may have had every reason to assist them. If they were well off, they had little claim on her bounty. There was nothing which suggested that they or any member of the family of each had any moral claim on her estate. There was no evidence whether they had, like the testatrix, received a substantial inheritance on the death of their mother. It is reasonable to infer that, like the testatrix, they would have received such an inheritance. If parties fail to adduce evidence, the court has no alternative but to act on that which is proved: Stott v Cook (1960) 33 ALJR 447 at 448 per Dixon CJ and at 450 per Kitto J. The Judge’s Conclusion The trial judge found that the plaintiff is able to maintain and advance herself from her own resources. He expressed his findings in these terms:The plaintiff said in evidence that it was unfair that the charities and the siblings of the testatrix and their families should benefit to the extent provided for in the will. I accept that an increased provision for the plaintiff would be well spent on the properties farmed by the plaintiff and her husband. However, I am of the view that the plaintiff is able to meet the cost of properly maintaining and advancing herself in life from her own resources. After taking into account the plaintiff’s financial position, the provision made for her in the estate and the financial assistance given to her by the testatrix during her lifetime, I am not satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. For those reasons, he dismissed the plaintiff’s claim. Some Relevant Factors Not Considered
Decision
Reasons for decision
DEBELLE J
ANDERSON J
There was no evidence of any kind as to the financial circumstances of the other two siblings of the testatrix or whether they had any claim on the testatrix. Her brother Grant was aged 70 years at the death of the testatrix and her sister Judith was 67 years old. The financial circumstances of the siblings and their families was relevant: Vigolo v Bostin (2005) 221 CLR 191 at [126]. If they were pensioners, the testatrix may have had every reason to assist them. If they were well off, they had little claim on her bounty. There was nothing which suggested that they or any member of the family of each had any moral claim on her estate. There was no evidence whether they had, like the testatrix, received a substantial inheritance on the death of their mother. It is reasonable to infer that, like the testatrix, they would have received such an inheritance. If parties fail to adduce evidence, the court has no alternative but to act on that which is proved: Stott v Cook (1960) 33 ALJR 447 at 448 per Dixon CJ and at 450 per Kitto J. The Judge’s Conclusion The trial judge found that the plaintiff is able to maintain and advance herself from her own resources. He expressed his findings in these terms:The plaintiff said in evidence that it was unfair that the charities and the siblings of the testatrix and their families should benefit to the extent provided for in the will. I accept that an increased provision for the plaintiff would be well spent on the properties farmed by the plaintiff and her husband. However, I am of the view that the plaintiff is able to meet the cost of properly maintaining and advancing herself in life from her own resources. After taking into account the plaintiff’s financial position, the provision made for her in the estate and the financial assistance given to her by the testatrix during her lifetime, I am not satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. For those reasons, he dismissed the plaintiff’s claim. Some Relevant Factors Not Considered When considering the issues under s 7 of the Act the trial judge applied the approach of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201 at 208:It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the “jurisdictional question”. That description means no more than that the court’s power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a). (Citations omitted). As is apparent from the reasons for his conclusion on the jurisdictional question, the trial judge determined the application by considering only the plaintiff’s financial position, albeit taking into account the provision made for the plaintiff in the will and the financial assistance given to the plaintiff by the testatrix during her lifetime. He considered the question whether the testatrix had made adequate provision for the plaintiff by examining only the financial position of the plaintiff and her needs. It is not sufficient merely to consider the needs of the plaintiff. Those needs must be assessed against the background of any moral claim that the plaintiff might have on the estate of the testatrix and be considered in the light of all relevant factors including the size of the estate. The trial judge has failed to consider all relevant factors and in particular failed to consider the size of the estate and failed entirely to consider the question whether the testatrix had any moral duty towards her children including the plaintiff. These are serious flaws in his reasons. In addition, the trial judge has failed correctly to assess the plaintiff’s financial position. In short, he has not correctly considered the question whether the testatrix has failed to make adequate provision for the proper maintenance, education and advancement (which I shall simply call “maintenance”) of the plaintiff. I set the reasons for these conclusions.Determining an Adequate Provision