Legal Research
Cases
Browning v Dixon

Browning v Dixon

Case [2023] TASSC 29 23 August 2023

Family Provision

Criteria for Determining Application

Treatment of Particular Applicants

Succession Law

No judgment structure available for this case.

Type to search within this case.

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Browning v Dixon

Details

AGLC: Browning v Dixon [2023] TASSC 29
Case: [2023] TASSC 29
Decision Date: 23 August 2023

CaseChat Overview and Summary

In the matter of Browning v Dixon, the case arose from a dispute concerning the interpretation and distribution of a deceased's estate under the provisions of a will. The applicant, Kara Michelle Browning, sought additional provision from the estate of her deceased father, the respondent's husband, on the basis that the provisions made for her in the will were inadequate. The case was heard in the Supreme Court of Queensland.

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:

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Browning v Dixon [2023] TASSC 29

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

How v How
[2015] TASSC 4

…9 The way in which the provision operates has been set out in How v How [2015] TASSC 4, where Pearce J said at [9]-[13]:- "9 In a statement subsequently adopted in Bosch v Perpetual Trustee Co [1938] AC 463 at 479 and by the High Court in Singer v Berghouse (1994) 181 CLR 201, the basic principle underlying the l…
Leyden v McVeigh
[2009] VSC 164 Para 30

…legislation to re-write the testator's will according to the court's view of how the testamentary power should have been exercised: Leyden v McVeigh [2009] VSC 164 at [30]. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, Dixon CJ said: 'All authorities agree…
Vigolo v Bostin
[2005] HCA 11

…for his proper maintenance and support'. If this finding is made in the negative, the second step does not fall for consideration. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 all the members of the High Court confirmed that the subsection required the court to undertake a two-stage enquiry. With respect…
In re MacKinnon
[2002] TASSC 3

…ich could reasonably be foreseen at that time: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; In re MacKinnon [2002] TASSC 3. If it is found that the applicant was left without adequate and proper provision, the Court may then properly exercise the discretion to make furthe…
Singer v Berghouse
[1994] HCA 40

…at [9]-[13]:- "9 In a statement subsequently adopted in Bosch v Perpetual Trustee Co [1938] AC 463 at 479 and by the High Court in Singer v Berghouse (1994) 181 CLR 201, the basic principle underlying the legislation is expressed by Salmond J in In re Allen (deceased), Allen v Manchester [1922] NZLR 218 at 220–221: '…
Goodman v Windeyer
[1980] HCA 31

…exercise of a discretion: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; White v Barron [1980] HCA 14; (1980) 144 CLR 431; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490. The first stage requires a finding of whether the applicant has been left 'without adequate provision for his proper maintenance…
White v Barron
[1980] HCA 14

…e is a question of fact. The second stage involves the exercise of a discretion: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; White v Barron [1980] HCA 14; (1980) 144 CLR 431; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490. The first stage requires a finding of whether the applicant has been left…
Pontifical Society for the Propagation of the Faith v Scales
[1962] HCA 19

…stamentary power should have been exercised: Leyden v McVeigh [2009] VSC 164 at [30]. In Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, Dixon CJ said: 'All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was…
McCosker v McCosker
[1957] HCA 82

…es, requires a two stage approach. The first stage is a question of fact. The second stage involves the exercise of a discretion: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566; White v Barron [1980] HCA 14; (1980) 144 CLR 431; Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490. The first stage requires…
Coates v National Trustees Executors & Agency Co Ltd
[1956] HCA 23

…f death, I may have regard to the circumstances which could reasonably be foreseen at that time: Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; In re MacKinnon [2002] TASSC 3. If it is found that the applicant was left without adequate and proper provision, the Court may t…
Blore v Lang
[1960] HCA 73

…expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.' 13 Similarly, in Cooper v Dungan (19750 9 ALR 93, Stephen J said, at 98: 'It is notorious that in this particular jurisdiction courts must be vigilant in guarding against a natural tendency to refor…
[1922] NZLR 218
[1922] NZLR 218

…Berghouse (1994) 181 CLR 201, the basic principle underlying the legislation is expressed by Salmond J in In re Allen (deceased), Allen v Manchester [1922] NZLR 218 at 220–221: 'The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have tho…
[1938] AC 463
[1938] AC 463

…as been set out in How v How [2015] TASSC 4, where Pearce J said at [9]-[13]:- "9 In a statement subsequently adopted in Bosch v Perpetual Trustee Co [1938] AC 463 at 479 and by the High Court in Singer v Berghouse (1994) 181 CLR 201, the basic principle underlying the legislation is expressed by Salmond J in In…

Legislation cited in this decision · 1

Testator's Family Maintenance Act 1912 (TAS)
3(1) 1 mention

Applicant:	Paula Sutherland & Associates
Respondent:	Butler McIntyre & Butler