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…
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- AGLC
- Brennan v Mansfield [2013] SASC 83
- Case
- [2013] SASC 83
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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