Broadhead v Prescott

Case [2015] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BROADHEAD & ORS  v  PRESCOTT & ORS

[2015] SASC 34

Judgment of Judge Dart a Master of the Supreme Court

27 February 2015

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO CHILDREN

The plaintiffs are the children of the deceased - the whole of the estate was left to two of their siblings - the plaintiffs claim they were left without adequate provision for their proper maintenance, education or advancement in life - application pursuant to Inheritance (Family Provision) Act 1972.

Held: Application granted - each plaintiff to obtain a provision out of the estate in the amount of $47,500.

Inheritance (Family Provision) Act 1972 (SA) ss 7, 8 and 14; Supreme Court Civil Rules 2006 (SA) r 316, referred to.
Blunden v Blunden & Anor [2008] SASC 286; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bowyer v Wood (2007) 99 SASR 190; Coates v National Trustees Executors and Agency Company Limited and Another (1956) 95 CLR 494; Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134; Re Allen (deceased) [1922] NZLR 218; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin and Others (2008) 221 CLR 191; White v Barron and Another (1979) 144 CLR 431; Worladge and Another v Doddridge and Others (1957) 97 CLR 1, considered.

BROADHEAD & ORS  v  PRESCOTT & ORS
[2015] SASC 34

JUDGE DART:

  1. These reasons deal with a claim made under the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) in respect of the estate of the late Percy Broadhead (“the deceased”). The claim was brought by three of the deceased’s children. As the estate was valued at less than $500,000, the matter was tried on a summary basis.[1]  In the result, for the reasons that follow, a provision should be made out of the estate for each of the three plaintiffs in the amount of $47,500.

    [1]    Supreme Court Civil Rules 2006 (SA), r 316.

    Background

  2. The deceased, a widower at the time of his death, passed away on 11 November 2011 leaving six adult children.  I will refer to each of the children by their given names and mean no disrespect in doing so.

  3. The eldest child, Michael, played no part in these proceedings and has not sought provision out of the estate.  The plaintiffs are Johnathan, Ernest (Bob) and Emily, each of whom resides in the United Kingdom.  The defendants are Stephen and Sheena Prescott and Kathleen Sazevski.  Sheena and Kathleen are daughters of the deceased and Stephen, Sheena’s husband, is the executor named in the will.  The net value of the estate available for distribution was $333,423.81.

  4. By his will the deceased left all of his estate to Sheena and Kathleen.  There is some family history which may explain why the deceased adopted…

Continue reading Broadhead v Prescott

Sign in free to access the full text

Details
AGLC
Broadhead v Prescott [2015] SASC 34
Case
[2015] SASC 34
Decision Date

CaseChat Overview and Summary

The case of Broadhead v Prescott involves the children of the deceased, Percy Broadhead, who are challenging the distribution of his estate pursuant to the Inheritance (Family Provision) Act 1972 (SA). The deceased left the entirety of his estate to two of his daughters, Sheena and Kathleen, while excluding three other children, Johnathan, Ernest (Bob), and Emily, who reside in the United Kingdom. The plaintiffs argue that they have been left without adequate provision for their maintenance, education, or advancement in life and seek a redistribution of the estate. The defendants are Sheena, Kathleen, and Stephen Prescott, the executor of the will.

The central legal issues in this case revolve around the interpretation of the term "adequate and proper maintenance" under the Act, and whether the deceased's will adequately provided for the plaintiffs' needs. The court must determine if the plaintiffs have demonstrated that they have been left without sufficient provision and, if so, what amount would be just and equitable to meet their needs. The court also considered the deceased's intentions as expressed in his will and whether they were reasonable and just, taking into account all relevant circumstances.

The Court found that the plaintiffs had maintained a continuous and cordial relationship with their father despite the geographical distance. The evidence indicated that the deceased's decision to leave the estate solely to Sheena and Kathleen was influenced by past family disputes and not reflective of the true nature of their relationships. The Court concluded that the plaintiffs were left without adequate provision for their maintenance, education, or advancement in life. Considering the modest financial circumstances of each plaintiff and the overall value of the estate, the Court determined that a provision of $47,500 for each plaintiff would be just and equitable. The Court ordered that each plaintiff should receive this amount from the estate, regardless of the prior distribution to the defendants.

The final orders of the Court mandated that Sheena and Kathleen should pay $47,500 to each of the plaintiffs, Johnathan, Ernest, and Emily, out of the estate. This sum was to be held subject to the provisions of the order, ensuring that the plaintiffs received the appropriate financial support.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These reasons deal with a claim made under the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) in respect of the estate of the late Percy Broadhead (“the deceased”). The claim was brought by three of the deceased’s children. As the estate was valued at less than $500,000, the matter was tried on a summary basis.[1] In the result, for the reasons that follow, a provision should be made out of the estate for each of the three plaintiffs in the amount of $47,500.[1] Supreme Court Civil Rules 2006 (SA), r 316.Background The deceased, a widower at the time of his death, passed away on 11 November 2011 leaving six adult children. I will refer to each of the children by their given names and mean no disrespect in doing so. The eldest child, Michael, played no part in these proceedings and has not sought provision out of the estate. The plaintiffs are Johnathan, Ernest (Bob) and Emily, each of whom resides in the United Kingdom. The defendants are Stephen and Sheena Prescott and Kathleen Sazevski. Sheena and Kathleen are daughters of the deceased and Stephen, Sheena’s husband, is the executor named in the will. The net value of the estate available for distribution was $333,423.81. By his will the deceased left all of his estate to Sheena and Kathleen. There is some family history which may explain why the deceased adopted this approach. The deceased and his wife emigrated from the United Kingdom in 1973. At that time the three plaintiffs were young adults who had employment in the United Kingdom and remained there. The two defendant daughters were young teenagers and moved to Australia with their parents. Sheena and Kathleen took their father to see a solicitor in November 2007 for the purpose of preparing a will. The will was executed on 8 November 2007 and was admitted to Probate on 2 February 2012. Stephen was the sole executor named in the will. These proceedings were served on the executor on 30 July 2012. As at the date of the trial of this action the whole of the estate had been distributed to Sheena and Kathleen. The estate comprised some monies held in a bank account, but primarily comprised the proceeds of the sale of the deceased’s residential property. The proceeds were distributed on 1 June 2012, being the date of the settlement of the contract for the sale of the property. On that date Sheena and Kathleen each received the sum of $164,039.37. One unusual and regrettable aspect of this matter relates to an undertaking given to the plaintiffs by Sheena and Kathleen. By letter dated 14 June 2012 their solicitors advised the plaintiffs’ solicitors that each of Sheena and Kathleen undertook to hold the sum of $75,000 and not divest that money without reasonable notice of an intention to do so. Those monies were part of the estate that had been distributed to them. The plaintiffs’ solicitors responded by letter dated 4 July 2012 noting the undertaking that had been given. Notwithstanding the undertaking, each of Sheena and Kathleen then proceeded to dissipate the money the subject of the undertaking without any notice to the plaintiffs.

Evidence

Evidence Before The Court

The Court has a power to make an order for provision out of the estate, including in respect of that part which has been distributed. If such an order is made, the portion of the estate affected by the order is held subject to the provisions of the order made by the Court.[17] The fact that the estate has been distributed, therefore, is no basis for treating this other than as an ordinary application and dealing with it accordingly.[17] Blunden v Blunden & Anor [2008] SASC 286 at [30].Assessment of the evidence Johnathan gave evidence in Court. The Court had earlier been informed that Bob and Emily were unable to afford to come to Australia for the trial. They gave evidence by video link from Sheffield in the United Kingdom. As with all of the witnesses, their primary evidence was by way of affidavit. However, each of the plaintiffs gave some additional evidence-in-chief and were cross-examined. The principal witnesses for the defendants were each of the three defendants. Again, affidavits were filed as evidence-in-chief, but there was further oral evidence and cross-examination. Generally speaking, I accept the evidence of all of the witnesses, subject to one or two issues. The second and third defendants were clearly hostile to the claim and resisted it vigorously. As a consequence of their attitude to the claim, my assessment is that they exaggerated the question of a conflict between Bob and his father. They also sought to downplay the amount of contact the three plaintiffs had with their father and also the relationship between them and their father. Where there is a conflict between the evidence of the second and third defendants and the plaintiffs on those topics, I prefer and accept the evidence of the plaintiffs as being more accurate. That means I accept the plaintiffs’ evidence about the contact that they had with their father over the years, the ongoing relationship with their father, and the relatively minor nature of the disputes between Bob and his father. The relationship between the plaintiffs and their father was affected by the tyranny of distance. Making allowance for that fact, the relationship between the plaintiffs and their father seems to have been continuous and, in the main, cordial.The financial position of the plaintiffs and defendants The financial position of each of the three plaintiffs is modest. Johnathan is 63 years of age and single and, as is the case for the other two plaintiffs, continues to reside in the United Kingdom. He currently suffers from a number of physical ailments, including diabetes and Reynaud’s disease. He is unable to work. During his working life he predominantly worked as a mechanic. He is currently in receipt of a disability pension and other benefits from the United Kingdom government in the amount of approximately £1000 per month. He has no assets or savings to speak of. Emily is 61 years of age, currently works part-time and lives in a de facto relationship. She and her partner own a house valued at approximately £110,000 in respect of which they have a mortgage of approximately £60,000. Her income at the moment is approximately £700 per month. Her partner, Michael, is in receipt of an old age pension. Apart from the house, she does not have any other assets of significance, nor a pension plan.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The totality of the evidence is such that, for practical purposes, the words in the will are to be disregarded. They are not proof of the facts asserted and the evidence proves strongly to the contrary. Each of the three plaintiffs maintained regular contact with their father.Consideration of the issues I am satisfied that each of the plaintiffs has been left without adequate provision for their proper maintenance, education or advancement in life. They are each in very poor financial circumstances, though perhaps Emily’s position is not quite as poor as that of her brothers. The jurisdictional question is therefore satisfied and the matter becomes one of consideration of what would be an appropriate provision. That requires the Court to consider what provision would have been provided by a wise and just testator fully aware of all of the relevant circumstances. It necessarily involves a matter of judgment. There is no correct answer as such. I have had regard to the submissions made by the parties as to what would be an appropriate provision. However, in the end it is a matter for the judgment of the Court. In my opinion, a wise and just testator would have made a provision for each of the three plaintiffs in the amount of $47,500 and I so order.