Bramwell v Bramwell

[2022] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BRAMWELL v BRAMWELL & ORS

[2022] SASC 12

Judgment of the Honourable Auxiliary Justice Bochner  

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO SPOUSE OR PARTNER

Inheritance (Family Provision) Act 1972 (SA); Evidence Act 1929 (SA); Family Law Act 1975 (Cth), referred to.
Lang v Davey [2020] SASC 160; Singer v Berghouse (1994) 181 CLR 201; Carter v Brine [2015] SASC 204; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; Slack v Rogan; Plaffy v Rogan (2013) 85 NSWLR 253; Sgro v Thompson [2017] NSWCA 326; Steinmetz v Shannon & Anor (2019) 368 ALR 161; Luciano v Rosenblum (1985) 2 NSWLR 65, considered.

BRAMWELL v BRAMWELL & ORS
[2022] SASC 12

CIVIL

1. Donald Gordon Bramwell (“the deceased”) died on 6 December 2018, at the age of 84. His will, dated 5 December 2017, was admitted to probate on 3 July 2019, with his widow, the applicant, and his daughter, the third respondent, appointed executors. I will refer to his widow and his daughter as the applicant and the respondent.

2. The applicant has brought a claim for further provision from the deceased’s estate, pursuant to the terms of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”). I note that the applicant’s claim was brought outside of the time limit prescribed by the Act; the respondent consents to an extension of time to bring this action. I mention this for completeness.

   The estate

3. At the time of the deceased’s death, his estate comprised:

   ·A half share in the home of the deceased and the applicant (and in which the applicant still lives), valued at $385,000;

   ·The refundable accommodation bond from the nursing home in which the deceased lived at the end of his life, in the sum of $459,276.65;

   ·Furniture and household effects, valued at $7,000;

   ·Superannuation in the sum of $518,456.92;

   ·Shares to the value of approximately $1,000; and

   ·Cash of around $34,000.

4. The estate had no liabilities; the net estate was in the region of $1,405,000.

5. The applicant and the deceased owned their home as tenants in common.

6. In 2016, the deceased completed a Binding Death Benefit Nomination (“BDBN”) in respect of his self-managed superannuation fund, the DG Bramwell & Co Superannuation Fund (“the Super Fund”). In effect, he divided his benefit in half, and directed that half go to the applicant, as a pension, to be paid at the minimum pension rate. The terms of the BDBN prevented the applicant from amending the pension terms to permit commutation of the pension or any increase of the pension drawdown. On the applicant’s death, the residual capital value of the pension stream was to be paid into his estate. I will refer to this portion of the superannuation benefit as the pension stream. He directed that the remaining 50% of his superannuation benefit be paid into his estate.

   The will

7. By his will, the deceased:

   ·forgave…