Brennan v Mansfield

Case [2013] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Civil)

BRENNAN v MANSFIELD & ORS

[2013] SASC 83

Judgment of The Honourable Justice Stanley

6 June 2013

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - DUTY OF TESTATOR - GENERALLY

The plaintiff and the deceased lived together as a couple for 26 years until the deceased’s death – they enjoyed a luxurious life together, which was largely funded by the deceased – the deceased’s estate was substantial – in his will, the deceased left $100,000 to the plaintiff, along with his share in a house they owned as tenants in common – the residue of the estate, worth approximately $2.5 million, was left to the third defendant – the plaintiff claimed he was not left with adequate provision for his proper maintenance, education and advancement in life, having regard to his moral claim to a greater share of the deceased’s estate – submitted there are no competing moral claims upon the testator’s bounty – the third defendant submitted that the plaintiff failed to demonstrate that he has been left in need of further provision, and that the plaintiff has substantial assets.

Held: granting the plaintiff’s application – declaration made pursuant to s 11B(2) of the Family Relationships Act 1975 (SA) that the plaintiff was the domestic partner of the deceased – order made pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), the plaintiff is to receive the sum of $1,000,000, with the provision of the additional sum of $900,000 to be made from the residue of the deceased’s estate – it is clear the deceased intended the plaintiff to enjoy the security of the Stirling property as his own, however failed to provide the means by which the plaintiff could continue to do so in a style which he was entitled to, by reason of the moral obligation the deceased owed him.

Family Relationships Act 1975 (SA) s 11, s 11A, s 11B; Inheritance (Family Provisions) Act 1972 (SA) s 6, s 7, referred to.
Bowyer v Wood (2007) 99 SASR 190; Vigolo v Bostin (2005) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463, applied.
Re Allen (Deceased) [1922] NZLR 218; Smilek v Public Trustee [2008] NSWCA 190; Re Buckland [1966] VR 404; Lloyd-Williams v Mayfield (2005) 63 NSWLR 1; Anasson v Phillips (Unreported, Supreme Court of New South Wales, Young J, 4 March 1988); Singer v Berghouse (1994) 181 CLR 201, discussed.
Graham v Graham [2011] NSWSC 504; Coates v National Trustees, Executors and Agency Co Ltd (1956) 95 CLR 494; Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1978 - 1979) 143 CLR 134; In Re Besterman [1984] 1 Ch 458; Buckland v Trustees, Executors and Agency Co Ltd (1966) 40 ALJR 164; Cooper v Dungan (1976) 50 ALJR 539; Horne v Horne (unreported, Supreme Court of…

Continue reading Brennan v Mansfield

Sign in free to access the full text

Details
AGLC
Brennan v Mansfield [2013] SASC 83
Case
[2013] SASC 83
Decision Date

CaseChat Overview and Summary

In the case of Brennan v Mansfield, the plaintiff sought a declaration that he was the domestic partner of the deceased at the time of his death and an order that provision be made from the deceased's estate for his maintenance, education and advancement in life. The deceased, who passed away in 2011, left his estate, valued at approximately $3.5 million, to the plaintiff and a third party in specific bequests and the residue. The plaintiff argued that the deceased had not made sufficient provision for his maintenance, education and advancement in life, given his moral claim to a greater share of the estate. The third party, however, argued that the plaintiff had not demonstrated that he needed further provision and that he had substantial assets.

The court was required to decide whether the deceased had made sufficient provision for the plaintiff under the Inheritance (Family Provision) Act 1972 (SA) and whether the plaintiff qualified as a domestic partner under the Family Relationships Act 1975 (SA). The court had to balance the moral claim of the plaintiff against the competing interests of the third party, who was to receive the residue of the estate. The court also had to consider the value of the assets the plaintiff already possessed and the deceased's intention in making the bequests.

The court found that the plaintiff had established that he was the domestic partner of the deceased and that the deceased had not made sufficient provision for the plaintiff's maintenance, education and advancement in life. The court noted that the plaintiff had lived with the deceased for 26 years and that the deceased's estate was substantial. The court also found that the plaintiff had a reasonable expectation of receiving a greater share of the estate, given the nature of their relationship. The court further found that the plaintiff's assets, while substantial, were not sufficient to provide for his maintenance, education and advancement in life in a style that was commensurate with the lifestyle he had enjoyed with the deceased. The court decided that it was just and convenient to adjust the testamentary disposition by effectively varying the monetary bequest made to the plaintiff from $100,000 to $1,000,000.

The court granted the plaintiff's application and made a declaration pursuant to s 11B(2) of the Family Relationships Act 1975 (SA) that the plaintiff was the domestic partner of the deceased. The court also made an order pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), that the plaintiff is to receive the sum of $1,000,000, with the provision of the additional sum of $900,000 to be made from the residue of the deceased's estate. The court directed the parties to bring into Court minutes of order that reflect its reasons and would hear the parties as to costs.

Orders

Orders of the court

Held: granting the plaintiff’s application – declaration made pursuant to s 11B(2) of the Family Relationships Act 1975 (SA) that the plaintiff was the domestic partner of the deceased – order made pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), the plaintiff is to receive the sum of $1,000,000, with the provision of the additional sum of $900,000 to be made from the residue of the deceased’s estate – it is clear the deceased intended the plaintiff to enjoy the security of the Stirling property as his own, however failed to provide the means by which the plaintiff could continue to do so in a style which he was entitled to, by reason of the moral obligation the deceased owed him.

Background

Background to the litigation

The plaintiff in this action seeks:1.a declaration pursuant to s 11B of the Family Relationships Act 1975 (SA) that, as at 10 April 2011, the plaintiff was the domestic partner of Ross Douglas Pfeiffer (“the deceased”); and2.an order pursuant to s 7 of the Inheritance (Family Provisions) Act 1972 (SA) that such provision as the Court deems fit be made out of the estate of the deceased for the maintenance, education and advancement in life of the plaintiff.Background The plaintiff is a 54-year-old primary school teacher. He was born on 6 June 1958. He was orphaned while quite young, and brought up by his aunt and uncle. After completing high school he enrolled at the Kingston College of Advanced Education studying junior primary teaching. After graduation he found employment with the Department of Education and entered the teaching service. The plaintiff has been employed continuously by the Education Department. He presently works as a junior primary school teacher. In his early 20s he acquired an investment property at Mile End for $25,000. This property was sold in 1983 for $45,000 and the plaintiff applied the net proceeds of $25,000 to purchase a house at Gilles Street for $45,000. In 1984 the plaintiff met the deceased, Ross Douglas Pfeiffer (“the deceased”). The deceased was born on 18 January 1921. He died on 10 April 2011. He was 90 years old at the date of his death. Probate was granted on 8 September 2011 to the executors of the deceased’s estate, the first and second defendants, in respect of the deceased’s will executed 18 August 2010. The statement of assets and liabilities filed with the application for probate discloses a net estate of approximately $3,500,000. The estate included real estate at St Georges and Stirling. The estate was the sole proprietor of the St Georges property. The estate was the legal proprietor of the Stirling property as a tenant in common with the plaintiff. The estate held a two-thirds interest and the plaintiff a one-third interest in the Stirling property. The balance of the estate consists of shares, paintings, antiques and a motor vehicle. Pursuant to his will, the deceased made specific gifts by way of bequests of $25,000 to Veronica Bernadette Murphy, and $20,000 each to various charities. These bequests totalled $225,000. The deceased bequeathed his interest in the Stirling property to the plaintiff, and bestowed a further specific bequest of $100,000 on the plaintiff. The residue of his estate was left to the third defendant, Prince Alfred College Inc. The residue is valued at approximately $2,500,000. The deceased was an only child. He never married. He had no children. He served in the army for some years. He was successful in business. By the time he met the plaintiff in 1984 he owned a restaurant at Norwood trading as “Erica’s”, and a florist shop trading as “Just Flowers” also in Norwood. By this time he did not take an active role in the day-to-day management of these businesses, which were run by managers. Apparently the florist business closed in 1987 and the restaurant closed in 1991. By that time, the deceased was, for all intents and purposes, retired.

Evidence

Evidence Before The Court

In relation to the value of his pension, he gave evidence that he had a superannuation policy with the SuperSA pension scheme, which would provide him with a pension of two-thirds of his salary from the date of retirement, and which he estimated was valued at $150,000. The third defendant submitted that the true value was well over $1,000,000. In my view, this criticism is unfounded. The plaintiff is not an actuary. The calculation of the net present value of a lifetime pension is difficult. The plaintiff’s annual statement from SuperSA at 30 June 2011 provided that his pension fund had a closing balance of $146,893.21. In the circumstances, I do not consider that the plaintiff’s evidence as to the pension’s value reflects any intention on his part to mislead the Court, or a failure to be full and frank in the disclosure of his financial circumstances. Likewise, in relation to the value of the Stirling property, the plaintiff gave evidence that the property was valued at between $900,000 and $1.2 million. The third defendant criticised this evidence on the basis that the plaintiff was aware of a “kerbside valuation” by Klemich Real Estate obtained by the first defendant in June 2011 of $1.4 to $1.5 million. Again, I do not consider the plaintiff’s failure in his evidence to refer to this document reflects adversely on his credit. He had discovered the document. The “kerbside valuation” differed markedly from the Registrar-General’s valuation of $960,000[1] and from a subsequent “kerbside valuation” by Bernard Booth obtained by the first defendant in March 2012 of between $900,000 and $925,000.[2] In the circumstances, where the plaintiff’s evidence as to the value of the Stirling property could only ever amount to an estimate, his valuation of the property at between $900,000 and $1.2 million does not evidence any intention on his part to mislead the Court. Further, I do not consider it constitutes a want of full and frank disclosure on his part in circumstances where he had discovered the Klemich valuation. [1] Statement of Assets and Liabilities exhibited as annexure PRB 1 to the plaintiff’s affidavit of 8 December 2011.[2] T 119.14.Evidence of the plaintiff’s other witnesses In addition to the evidence called by the plaintiff at trial, there was affidavit evidence admitted that detailed the relationship the plaintiff had with the deceased. These affidavits came from friends of the plaintiff and the deceased and generally corroborated the evidence of the witnesses called by the plaintiff as to the nature of the relationship of the plaintiff and the deceased. Heather Michelle Cunningham, in her affidavit sworn 28 May 2012, deposes to knowing the deceased for 50 years and meeting the plaintiff around 25 years ago. She explains that her family spent many lunches and dinners with the plaintiff and the deceased, and every Christmas day with them. She describes them as a couple, in that as a couple, they would invite her and her family to lunches and dinner parties, and that her family would invite the plaintiff and the deceased, as a couple, into their home. She describes many birthday and Christmas gifts being exchanged between the plaintiff and the deceased, such as antiques and artworks, and them taking regular holidays together. She described the domestic relationship they shared, setting out that the plaintiff would run the two households, being the St Georges and Stirling households, and prepare meals and assist the deceased with his medication.

Decision

Reasons for decision

It is just and convenient to adjust the testamentary disposition made by the deceased by effectively varying the monetary bequest made to the plaintiff by the deceased from $100,000 to $1,000,000. This will result in a corresponding reduction in the residuary estate bequeathed to the third defendant. Conclusion I would grant the plaintiff’s application. I would make a declaration pursuant to s 11B(2) of the Family Relationships Act 1975 (SA) that the plaintiff was, at 10 April 2011, the domestic partner of Ross Douglas Pfeiffer. I would order that pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), in lieu of the provision in clause 4 of the deceased’s will for the gift and bequest of $100,000 to the plaintiff, the plaintiff is to receive the sum of $1,000,000. Provision of the additional sum of $900,000 is to be made from the residue of the deceased’s estate. I direct the parties to bring into Court minutes of order that reflect my reasons. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.