Burdon v Burdon - [2019] TASSC 31

[2019] TASSC 31

COURT: SUPREME COURT OF TASMANIA

CITATION: Burdon v Burdon [2019] TASSC 31

PARTIES:  BURDON, Kathleen Grace
  v
  BURDON, Roger Lewin

FILE NO:  432/2017
DELIVERED ON:  2 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  18 April & 29 July 2019
JUDGMENT OF:  Holt AsJ
CATCHWORDS:

Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Surviving spouse or partner – Mere right of occupancy of family home inadequate provision – Provision made conferring absolute interest in family home.
Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1427]

REPRESENTATION:

Counsel:
             Applicant:  P Zeeman
             Respondent:  T Williams (18 April 2019 relieved from   attendance on 29 July 2019).
Solicitors:
             Applicant:  Murdoch Clarke
             Respondent:  Ware & Partners

Judgment Number: [2019] TASSC 31
Number of paragraphs: 24

Serial No 31/2019
File No 432/2017

KATHLEEN GRACE BURDON v ROGER LEWIS BURDON

REASONS FOR JUDGMENT HOLT AsJ

2 August 2019

This is an application for an order for provision under the Testators family Maintenance Act 1912 and an application for an extension of time for the bringing of the proceeding.
Derek Neil Burdon died, aged 94 years, on 6 March 2016. He was survived by his wife of 47 years. He was also survived by his three sons, a daughter, a step-daughter, and numerous grand-children and great grand-children.
Mr Burdon's Will was admitted to probate on 20 June 2016. His only asset was land at Marion Bay comprising a large allotment of about 7 hectares containing the home which he and his wife had occupied since 1985. There were also two small building allotments owned by Mr Burdon adjoining the main parcel of land with those allotments known as Lots 12 and 13. The main parcel of land was in the advanced stages of being subdivided to split off five small building allotments. The plan of subdivision was approved in September 2016 with titles to the allotments issuing shortly thereafter.
The government valuations issued in November 2016 were as follows. The large parcel of land containing the home was valued at $445,000. The five newly subdivided building allotments were each valued at $70,000. The combined value of Lots 12 and 13 was $80,000. The total value of Mr Burdon's land holding was accordingly $875,000.
Immediately following Mr Burdon's death his wife's only asset was savings of about $2000, which she had set aside for her funeral expenses. She was entitled to a pension of about $900 per fortnight from Centrelink. At the time she was aged 77 years.
Although all of the land was solely in Mr Burdon's name the general financial position was as a result of the joint efforts of both Mr Burdon and his wife. The couple sold their first matrimonial home, which was solely in Mr Burdon's name, to one of Mr Burdon's sons from an earlier marriage. The property at Marion Bay was purchased with the title being solely in Mr Burdon's name. Initially…

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 Burdon v Burdon

Details

AGLC: Burdon v Burdon [2019] TASSC 31
Case: [2019] TASSC 31
Decision Date: 2 August 2019

CaseChat Overview and Summary

The case of Burdon v Burdon involved a dispute regarding the distribution of the estate of a deceased person, where the applicants were the children of the deceased. The dispute centred on whether the surviving spouse and the children had been adequately provided for under the will. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the surviving spouse and children had been fairly provided for under the will, and if not, what adjustments should be made to ensure equitable distribution.

The court had to determine whether the provision made to the surviving spouse and the children under the will met the statutory criteria for adequate provision under the Family Provision Act. Specifically, the court needed to consider whether the surviving spouse, who had a mere right of occupancy of the family home, had been adequately provided for, and whether the children had been fairly treated in comparison to other beneficiaries. The court also needed to assess the value of the interest in the family home conferred to the children.

In its decision, the court found that the surviving spouse had not been adequately provided for, as the mere right of occupancy of the family home did not constitute adequate provision. The court also determined that the children had not been fairly treated when compared to other beneficiaries who had received outright interests in property. The court concluded that the provision made to the children was inadequate and ordered that the family home be sold, with the proceeds to be distributed equally among the surviving spouse and the children. The court's decision ensured that the surviving spouse and children received a fair share of the estate, in line with the statutory criteria for adequate provision.

Orders