Browning v Dixon

[2023] TASSC 29

[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 in August 2020, the nett value of the estate was about $720,000 comprised of the following. The house at New Norfolk at government valuation, being $430,000. The contents estimated by the executor to be worth about $40,000. The motor vehicle and the motor home estimated by the executor to have respective values of about $3,000 and about $45,000, and bank accounts totalling about $200,000.

6            If the will is left undisturbed a distribution to Mr Kirk Browning and Mr Michael Higgins at the time of the grant of Probate, would have amounted to about $310,000 each.

7             The 2020 will records that Mr Browning had made a binding death benefit nomination for his superannuation funds to be paid to his son. Acting on that nomination, the fund has paid to Mr Browning's son the sum of $274,000. The nett result, if there was no contest, was that consequential upon Mr Browning's death, his son, at about the time of death, would receive about $580,000 as compared to his daughter who would receive only the household contents.

The legislation under which the application is to be assessed

8 The Testator's Family Maintenance Act 1912, s 3(1) is as follows:

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"3

Claims for maintenance against estate of deceased person

(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit. "

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 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 thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances.'

10 It is settled law that proper consideration of an application made pursuant to the Act, s 3, or its equivalent in other States, 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 a finding of whether the applicant has been left 'without adequate provision 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 to the first question, all the members of the court in Vigolo affirmed the following statement from Singer v Berghouse (above) at 209–210:

'The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co ([1938] AC at 476). The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.'

11 The first question, whether the applicant was left without adequate provision for his proper maintenance and support, is generally to be determined at the date of death of the testator. However, in addition to the circumstances existing at the date of 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 then properly exercise the discretion to make further provision.

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12 It is not the function of a court when determining an application under this 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 that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions 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 reform the testator's will according to what it regards as a proper total distribution of the estate rather than to restrict itself to its proper function of ensuring that adequate provision has been made for the proper maintenance and support of an applicant.'"

10   As can be seen, the usual considerations are as follows:-

1.	The size and nature of the estate.
2.	The applicant's financial circumstances.
3.	The claims of the primary beneficiaries named in the will.
4.	The relationship between the deceased and the applicant and the relationship between

the deceased and the primary estate beneficiaries.

11           If following analysis of these matters (and if there are any other relevant matters, consideration of those matters) it is determined as a matter of fact that the applicant has been left without adequate provision for her proper maintenance and support, a discretion arises as to whether further provision is to be made and, if it is, the extent of that further provision keeping in mind that in so doing, the Court is restricted to going no further than is necessary to ensure that adequate provision is made for the proper maintenance and support of the applicant.

The evidence

12           As seems to be common in proceedings of this kind, much has been said about the details and, as here, there is conflict about some of those details. In these reasons I am confining myself to what I perceive to be the salient features and there was no material conflict in the evidence, to which weight could be attached, or contest in cross-examination about such features. Accordingly, I am able to set out the facts which I find in narrative form, without reference to particular evidence or witnesses.

The size and nature of the estate

13           As referred to earlier in these reasons, at the time of death the estate consisted primarily of a house, having a government valuation of $430,000, and about $200,000 in cash. There is no evidence as to the year in which the government valuation of the house was made. Between the date of death and the present, the median house price in New Norfolk has risen from about $300,000 to about $460,000, an increase of about 50%. Using this percentage increase as a rough guide, the house may now be worth about $650,000.

14 The estate cash assets have diminished since the date of death because of the incurring of
certain costs and the cash has now been reduced from about $200,000 to about $150,000.

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Accordingly, the primary assets of the estate, excluding the house contents, the car, the motor home and the specific bequest of $10,000 to Guide Dogs Tasmania appear to have a present value of about $800,000.

The applicant's financial circumstances

15           At the time of Mr Browning's death, the applicant was in casual employment as a driver, earning about $400 per week and receiving a Centrelink payment. At the time, she was living with her former partner at Risdon Vale.

16          Presently the applicant has full time employment as a driver. Her nett pay after the deduction of tax and child support payments (in respect of three children of her second marriage) is about $825 per week. She currently has about $60,000 in superannuation investments and lives alone in rented accommodation at Leslie Vale in Tasmania. She does not own any real estate, does not have any significant savings and her car is old. After payment of rent and living expenses the applicant has little or nothing left over. She has no private health insurance.

The claims of the primary beneficiaries named in the will

17           As at the date of Mr Browning's death he plainly had affection for his son as, in addition to nominating him to be the recipient of his superannuation investments, he made a substantial bequest to him in his will. In the last few months of his father's life, his son had provided assistance to Mr Browning, taking him to medical appointments and helping him with his daily needs.

18           Mr Browning's son has not provided details as to his financial situation at the time of his father's death, but did provide details as at the date of his affidavit, being a little over a year afterwards. At the time he was unemployed but establishing an on-line fishing equipment retail business. He was separated from his wife and was living in rented accommodation at Kettering. He had shared custody of his nine year old daughter. He had jointly owned a house at Woodbridge with his wife, which was subject to a mortgage and orders had been made in the Federal Circuit Court of Australia for his wife to receive the house on discharge of the mortgage, with the son to be paid the sum of $115,000 and have assigned to him $60,000 of his wife's superannuation investments to be added to his own superannuation investments of about $40,000. He had received $274,000 from his father's superannuation account as a result of his nomination as the beneficiary.

19   Mr Browning's son has a back condition which restricts his ability to perform heavy manual

work.

20           Neighbour, and the other primary beneficiary, Mr Higgins, had been a friend of Mr Browning for many years. He was aged 59 years at the date of Mr Browning's death and was working as a cleaner. A few months before Mr Browning's death, Mr Higgins did Mr Browning's lawn mowing and, in the advanced stages of Mr Browning's illness, Mr Higgins was nominated as his carer. Mr Higgins would regularly check on Mr Browning's well-being and do his shopping for him. Mr Higgins and his wife still had a mortgage over their home, in 2021 owing about $140,000, along with credit card debts totalling about $18,000. Mr Higgins remains employed, earning about $50,000 per year. His wife is also in employment. The couple have little or nothing in savings.

The relationship between the deceased and the applicant, and the relationship between the deceased and the primary beneficiaries

21           The applicant moved out of the family home in about 1990. In 1999 she and her two daughters lived with Mr Browning for about five months before renting a house in Montrose, which Mr Browning then owned. She lived in far north Queensland from 2010 until 2017. When she returned to live in Tasmania, she assisted Mr Browning with housework, took him on excursions and

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visited him two or three times a week. In 2017 Mr Browning appointed the applicant as his attorney and guardian. In 2019 the applicant, at the request of Mr Browning, accompanied him on an overseas cruise to Canada during which they had a falling out. In October 2019, about six months before Mr Browning's death, he had the applicant return his house keys and did not see her again prior to his death.

22           There is nothing to suggest that Mr Browning favoured one child over the other until he fell out with his daughter in 2019. Aside from the last few months of Mr Browning's life, there is nothing to suggest that once child contributed more to Mr Browning's well-being than the other.

23           Mr Browning enjoyed a close relationship with his neighbour and friend, Mr Higgins, over a lengthy period of time but only included him in his will when he changed it to substitute him for his daughter as an equal beneficiary of the residuary estate.

The submissions

24           The sole respondent, being the estate executor, through his experienced probate Counsel, rightly concedes values attributed to household contents in initial estate inventories are rarely achieved upon sale. Aside from this, the respondent rightly says that negotiations for settlement having failed his duty is confined to putting before the Court evidence and submissions supporting the upholding of the will. In this regard the respondent asks the Court to take into account that the applicant is an adult with no dependent children living with her and his able to support herself. It was submitted that at the time of death, the financial circumstances of the daughter and the son were not significantly different. I reject this submission as, unlike the daughter, the son had an interest in a house and the benefit of Mr Browning's binding superannuation death nomination. Unlike the applicant, the son had prospects of future home ownership after his divorce, and the prospect of improving his financial position prior to reaching retirement age.

25           The applicant submits that the evidence of the son should be treated cautiously and that he may have understated his assets position in his evidence. I do not need to consider this submission in detail as it is clear, even on the son's evidence, that at the time of Mr Browning's death he had good prospects of home ownership following his divorce. He could expect something on the marital property adjustment and had the benefit of Mr Browning's superannuation nomination.

26           Both Counsel provided me with very helpful summaries of the evidence and detailed legal submissions as to the approach to be taken in assessing family provision applications. The submissions were consistent with the approach I have taken as set out earlier in these reasons.

The jurisdictional question of fact – Was the applicant left without adequate provision for her proper maintenance and support?

27           The estate, although not large, was sufficient in size to accommodate financial provision being made to the applicant to enhance her chances of owning a home, having a buffer against contingencies, attending to medical needs and, at least in the form of owning a home, having security in later life. The claims of the primary beneficiaries were not sufficient to negate an obligation on the part of a just and wise father, assumed to be aware of all relevant circumstances, to make a material financial bequest to his daughter to improve her future prospects. It follows that the jurisdictional question of fact is answered in favour of the applicant, namely that she was left without adequate provision in the will for her proper maintenance and support.

What provision, if any, should be made?

28           It is common ground that at the discretionary stage of the consideration, a court may have regard to the value of the estate at the time of the court's determination. As set out earlier, it appears

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that excluding the specific bequests, the estate presently has a value of about $800,000. Some further
provision should be made for the applicant.

29           In assessing the amount of the further provision to be made, I take into account that the son had benefit of the binding superannuation nomination. I take into account that beneficiary and former neighbour, Mr Higgins, is almost 60 years old, has a low income, has a mortgage debt of about $140,000 and credit card debts of about $18,000. Mr Browning, no doubt, wanted to help make his neighbour's life more secure and more comfortable as a reward for his friendship and assistance. Balancing the needs of the applicant against the claims of the primary beneficiaries, and being conscious that I should not disturb the testamentary wishes of Mr Browning any further than is necessary, I conclude that the applicant should have further provision out of the estate in the fixed sum of $400,000.

The costs of the application

30           I have received written submissions as to costs covering various contingencies, including that the applicant is successful. The respondent accepts that if the applicant is successful, she should have her costs, taxed on a solicitor and client basis, paid out of the estate. The respondent, being the executor, is entitled to take his legal costs out of the estate on a solicitor and client basis, without the need for an order. As the applicant has been successful, I do not think that the costs should come out of her share of the estate.

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.