[2023] TASSC 29
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Browning v Dixon [2023] TASSC 29 |
| PARTIES: | BROWNING, Kara Michelle |
| v | |
| DIXON, Stephen Fahan (As Executor of the Will of the | |
| Late Donald John Browning) | |
| FILE NO: | 2696/2020 |
| DELIVERED ON: | 23 August 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 10 August 2023 (written submissions finalised 16 August |
| 2023) | |
| JUDGMENT OF: | Holt AsJ |
| CATCHWORDS: |
Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Adult daughter – Further provision made
Testator's Family Maintenance Act 1912 (Tas), s 3(1)
Aust Dig Succession [1433]
REPRESENTATION:
Counsel:
Applicant: P Sutherland Respondent: D Zeeman
Solicitors:
Applicant: Paula Sutherland & Associates Respondent: Butler McIntyre & Butler
| Judgment Number: | [2023] TASSC 29 |
| Number of paragraphs: | 31 |
Serial No 29/2023 File No 2696/2020
KARA MICHELLE BROWNING v STEPHEN FAHAN DIXON
(AS EXECUTOR OF THE WILL OF THE LATE DONALD JOHN BROWNING)
| REASONS FOR JUDGMENT | HOLT AsJ 23 August 2023 |
| Introduction |
1 Donald John Browning died on 11 May 2020, aged 77years. He had been divorced for many years and in about 1995, after his separation, he had purchased a house at New Norfolk in which he lived on his own until his death. He developed a friendship with his neighbour, Mr Michael Higgins, which lasted until Mr Browning's death. Mr Browning was survived by his two children, Kara Browning, then aged 46 years, and Kirk Browning, then aged 44 years. Mr Browning had made a will in October 2017 by which he appointed his solicitor as Executor, and in which he bequeathed his household contents to his daughter, his motor vehicle to a granddaughter, his motor home to another granddaughter, $35,000 to Guide Dogs Tasmania with the residue of the estate to be equally divided between his two children.
2 Seven days before his death, he made a new will. The specific bequests in the earlier will were maintained, but with the bequest to Guide Dogs Tasmania reduced to the sum of $10,000 and with the residue of the estate to be divided equally between his friend and neighbour, Michael Higgins, and his son Kirk Browning.
3 Mr Browning and his daughter had fallen out during a holiday they had together travelling to Canada in 2019. Later in 2019, after an argument, he refused his daughter access to his home and had her return her set of keys. However, there is no suggestion that the daughter had engaged in any disentitling conduct.
4 Mr Browning's daughter has brought a claim for family provision. The primary beneficiaries of his estate, being Mr Kirk Browning and Mr Michael Higgins, although not applying to be made parties, gave evidence at the hearing in support of the respondent executor's resistance of the claim. All those interested advised that they did not wish to disturb the specific bequests made to the two granddaughters and Guide Dogs Tasmania.
5 According to the estate inventory filed at the time of the grant of Probate…
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CaseChat Overview and Summary
The legal issues that the court was required to decide included the interpretation of the deceased's will, the application of the family provision legislation, and the criteria for determining whether the applicant was entitled to further provision from the estate. The court had to consider whether the provisions made for Kara were inadequate and whether the deceased had made further provision for her outside the will.
The court found that the deceased had indeed made further provision for Kara outside the will, which was not reflected in the will. The court concluded that the provisions made for Kara in the will were inadequate, and therefore, the estate should be distributed as if a particular clause was included in the will. The court also ordered that the costs of the parties be taxed on a solicitor and client basis and paid out of the residue of the estate. The respondent was further ordered to bring into court the grant of Probate and a certified copy of these orders was to be made upon the probate of the will.
Orders
Orders of the court
The orders
31 I make the following orders:
1
The estate is to be distributed as if paragraph three of the will was in terms:-
"I give the sum of $400,000 and the contents of my house and shed to my
daughter Kara Michelle Browning".
2 The costs of the parties are to be taxed on a solicitor and client basis and paid out of the residue of the estate.
3 I certify for the attendance of Counsel in respect of the application.
4 The respondent is to bring into Court the grant of Probate and a certified copy of these orders is to be made upon the probate of the will.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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