(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
14 September 2023
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - APPEALS AS TO COSTS
This is an appeal against an order granting an application for further provision under s 7 of the Inheritance (Family Provision) Act1972 (SA) (‘the Act’) and the subsequent ruling on the question of costs and form of the orders.
Amanda Jane Bramwell is the appellant in her capacity as beneficiary of the Estate of Donald Gordon Bramwell (‘the deceased’) who died on 6 December 2018. She was the respondent to the original application and is the daughter of the deceased from his first marriage. Jean Bramwell is the respondent to these proceedings and was the applicant in the original proceedings. She is the deceased’s second wife.
The trial Judge upheld a claim by the respondent for further provision and awarded her the entirety of the deceased’s half interest in the matrimonial home located at 27A Hyland Terrace, Rosslyn Park (‘Hyland Terrace property’) and a legacy of $260,000 in lieu of the legacy provided to her in the deceased’s will dated 5 December 2017.
At the conclusion of proceedings, the trial Judge made an order that the respondent's costs be paid from the residuary estate of the deceased on a solicitor/client basis.
The appellant challenged: the trial Judge’s determination that the respondent had been left without adequate provision; the award of further provision including the absolute interest in the deceased’s interest in the Hyland Terrace property; and the subsequent ruling on costs.
Held, per the Court granting leave to appeal on Ground 4 but dismissing the appeal:
1.The deceased owed a strong moral duty to the respondent to make adequate provision for her from his estate. The trial Judge’s determination that the respondent was left without adequate provision was not unreasonable or plainly unjust.
2.The trial Judge’s determination as to the further provision to be awarded to the respondent, including the absolute interest in the deceased’s interest in the Hyland Terrace property, was within the range of awards that might reasonably have been made and did not go beyond what was adequate provision in the circumstances of this case.
3.Under s 9(8) of the Act, the court exercises the usual broad discretion as to costs. In exercising that discretion, it will be appropriate for a court to have regard to public policy objectives underpinning such claims, the size of the estate and the likely effect of an order for solicitor/client costs upon the parties and any residuary beneficiary, and all other usual considerations including the parties’ conduct in the litigation, the degree of success and any offers. To the extent that it has historically been appropriate to refer to an order that costs in…
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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AGLC
Bramwell v Bramwell [2023] SASCA 94
Case
[2023] SASCA 94
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute over the estate of the deceased, who died in December 2018. The appellant, the deceased's 48-year-old daughter, suffers from medical ailments and receives a disability support pension, with limited prospects of full-time employment. The respondent, the deceased's 79-year-old wife, had been married to the deceased for nearly 32 years, during which time they jointly contributed to and lived in several properties and established an accounting practice. The appellant challenged the orders made in favour of the respondent regarding the deceased's estate.
The court was required to determine whether the provision made for the respondent under the deceased's will was adequate and proper for her maintenance, and if not, what further provision should be made from the estate. This involved considering the respondent's contributions to the marriage, her financial needs, and her accustomed standard of living, as well as the appellant's circumstances and any moral claims she might have on the estate. The court also had to consider the appellant's challenge to the costs orders made in the prior proceedings.
The court reasoned that the deceased's superannuation fund, which had accrued entirely during his marriage to the respondent, represented a significant portion of his wealth. The respondent contended that a substantial part of this superannuation was morally hers, given her contributions to the marriage and the joint efforts that led to its accumulation. The court also considered the deceased's half-interest in the Hyland Terrace property, which was the matrimonial home, and the respondent's arguments for its award to her, including the desire for a clean break and the potential for adverse consequences if she failed to comply with conditions attached to its use. The court acknowledged the respondent's evidence of the deceased's financial support for the appellant during his lifetime, but also noted the respondent's own substantial contributions to the marriage and the business.
The court granted leave to appeal on one ground but ultimately dismissed the appeal, upholding the trial judge's decision regarding the provision for the respondent from the estate. The court also dismissed the appeal concerning the costs orders.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow, we would grant leave to appeal on Ground 4 but dismiss the appeal. Background This appeal concerns a dispute over the estate of the deceased, who died on 6 December 2018. The appellant, who is now 48 years old, is the deceased’s only child. She suffers from various medical ailments for which she receives a disability support pension. At the time of the trial, she was employed casually but, due to her illnesses, she considered it unlikely that she would ever work full-time again. The respondent is now 79 years old. She is the deceased’s second wife. The respondent and the deceased commenced living together in 1987 and, in early 1988, equally contributed to the purchase of a house in Wattle Park. They married in January 1989, and remained so until the deceased’s death in December 2018. Throughout their marriage, they purchased and lived in two other marital homes, funded by the sale of their previous house; the second was situated in Burnside, and the third was the Hyland Terrace property. Their social life was a very active one. They both played tennis at the Memorial Drive Tennis Club and were involved in the running of the club. They enjoyed music, and frequently attended jazz festivals. They enjoyed the theatre and the opera. They both played golf and were active members of various clubs including the Adelaide Club and the Queen Adelaide Club. In about 1989, the respondent and the deceased established their own accounting practice, DG Bramwell & Co. The practice was initially started as an equal partnership, however, after the deceased refused to sign a partnership agreement, the respondent was made a salaried partner (a decision she was unhappy with). She briefly worked for another firm, sometime after 1997, but returned to DG Bramwell & Co in about 2000 where she worked as an accountant until her retirement in about 2004 or 2005. The year prior, DG Bramwell & Co was acquired by Shearer & Elliss. The deceased ceased to own the business and became a consultant for the firm. He remained a consultant until about 2014. His consultancy fees were paid into an account at Macquarie Bank in his sole name; none of those fees were paid into a joint account. During the respondent’s time working for DG Bramwell & Co (first as equal partner and then as a salaried partner), her salary was paid into an account in the deceased’s name at the National Australia Bank (‘NAB’). In 2008, the respondent and the deceased purchased the Hyland Terrace property, which they owned in equal shares as tenants in common. At the date of the trial, the property was valued at $1,125,000 (each interest therefore being $562,500). Prior to their marriage, the deceased set up a self-managed Super Fund with himself and the respondent as members (‘the Fund’); the relevant member benefits were accrued from 1990. The respondent had no involvement in the management of the Fund; it was controlled entirely by the deceased. At the time the Fund was set up, the deceased had no existing superannuation as it had all been paid to the deceased’s first wife (the appellant’s mother) in the form of spousal maintenance.[3] All of the superannuation in the Fund at the time of the deceased’s death had accrued since his marriage to the respondent. However, from the time the Fund was established, the deceased paid significantly more into his account than into the respondent’s account. His closing balance at the end of each financial year was consistently at least double that of the respondent’s; some years it was three times as much. [3] The deceased’s former wife’s claim for spousal maintenance was not finalised until 2004. In addition to the superannuation accrued by the deceased prior to the establishment of DG Bramwell & Co, a lump sum of $180,000 was paid out to the deceased’s first wife from moneys earned by the deceased and the respondent in the course of running DG Bramwell & Co.
Evidence
Evidence Before The Court
By Notice of Appeal dated 8 August 2022, the appellant challenged these orders and sought orders that the appeal be allowed, and the respondent’s claim be dismissed or, alternatively, the respondent be awarded such provision as this Court deemed fit. Further, the appellant sought an order that the respondent’s costs in relation to the prior proceedings be paid from the residuary estate of the deceased on a party/party basis as opposed to a solicitor/client basis. Evidence at trial At the time of the trial, the respondent was 78 years old and in reasonably good health. She remained living in the matrimonial home, which was in a reasonable state of repair. The respondent gave evidence that, over the course of her marriage to the deceased, he provided his daughter (the appellant) with significant amounts of money, regularly paying her bills and assisting her with other expenses. The respondent also gave evidence that she did not learn of the content of the will until after the deceased’s death, when she received a copy from his lawyers. She said she was never informed of the contents of his will although she said the deceased had made comments to the effect that his daughter’s ‘needs are greater than yours’. The respondent called four witnesses at trial in support of her evidence: Elizabeth Mary Henwood, Rosalind Ada Neale, Estella Marjory Farwell and Lorraine Clare Deere. Each is a friend of the respondent who knew the deceased for many years before he was diagnosed with PSP. Each gave evidence to the effect that the respondent was a devoted wife and very supportive of her husband and his endeavours. They described the deceased as a demanding man, who was not particularly appreciative of her. That evidence was not contested; and the trial Judge found it was reliable and credible. As to the amount of further provision she should receive, the respondent contended that a wise and just testator in the deceased’s position should have recognised that he was holding $530,000 of superannuation which was ‘morally’ hers.[9] She also contended that the majority of the remaining ‘true estate’ (that is, the value of the estate less the $530,000 of superannuation), should be awarded to her on the basis that she had a moral claim to that share of the estate, as a widow of a 30-year marriage during which she made substantial financial and non‑financial contributions. It was submitted this would enable her to enjoy the lifestyle she had been accustomed to whilst still making substantial provision for the appellant. [9] See W & D [2005] FMCAFAM 171 at [91] per Federal Magistrate Ryan; Charlton v Charlton [2007] FAMCA 212 at [64] per Monteith J; Skye v Skye [2017] FCWA 134 at [34] per Thackray CJ; Sierra v Sierra [2017] FCCA 596 at [232] per Terry J; Salmar v Bark [2018] FCCA 2460 at [51] per Willis J; Leander v Scannell [2020] FCCA 2830 at [161] per Curtain J. As to the deceased’s half-interest in the Hyland Terrace property, the respondent contended that there was good reason for the interest to be awarded to her, namely: it was the matrimonial home; there were conditions attached to the use of the deceased’s half-interest in the property and, therefore, the potential for adverse consequences if she failed to comply with those conditions; it was undignified for her to be subject to such conditions; there should be a clean break between herself and the appellant;[10] and the appellant had expressed no particular desire to obtain the deceased’s half-interest in the house; rather, it was simply another potential source of funds for her. [10] Spata v Spata [2011] NSWSC 1221 at [151] Hallen AsJ.