Burdon v Burdon
[2019] TASSC 31
•2 August 2019
[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 the couple lived in huts which they had temporarily placed on the land. They moved into the home built on the land in 1985. From 1980 the couple had developed land from which they operated the Copping Museum. The Museum was sold in 1995. The money for the museum had come from a taxi business which the couple had commenced in 1972 with the purchase of a taxi licence from borrowed funds. By the time the business was sold in 1980, seven taxi licences had been accumulated.
Following the sale of the museum, Mr Burdon's wife purchased a café business for $130,000, which was sold in about 2005 for $270,000. The proceeds were used on an extended holiday, the purchase of a motor vehicle and the purchase, by Mr Burdon, of several racehorses at a cost of not less than $65,000. Mr Burdon used the Marion Bay property to set up a training facility for his horses. The horse racing business did not produce a financial return and in 2009, due to Mr Burdon's poor health, the horses were sent to other trainers.
By his Will, Mr Burdon directed that the large block of land containing the home be subdivided into two parts. One part to split off the home and surrounds of about 8000 m², with the balance remaining as a large parcel comprising approximately 6 hectares. No steps have been made to split off the home from the balance of the large block. Mr Burdon left to his wife (the applicant) a licence to occupy the home and the post subdivision surrounds provided that she kept the home in good repair and paid the outgoings. He made provision that if the house was sold, and a substitute house purchased, his wife would have a licence to occupy the substitute house on the same terms. Mr Burdon appointed one of his grand-sons (the respondent) as executor. The Will provided that of the five subdivided building allotments one was to go to the respondent and another to go to one of Mr Burdon's sons. The balance of the estate was directed to be divided into 27 parts with his named grand-children and great grand-children variously receiving either one part or two parts each. The final 1/27 part was directed to go to Mr Burdon's step-daughter (the child of the applicant).
The application for family provision was not made until February 2017. By then the two Lots had been put into the names of the grand-son and son as directed. Lots 12 and 13 have been sold realising nett proceeds of about $64,000. Lot 1 in the subdivision is the existing access to the home and it and the remaining two subdivided allotments are still in the name of the estate.
Because the application for provision was not made until 8 months following the grant of probate, the Court has no jurisdiction to make provision unless time is extended for the bringing of the application. The Act s 11 is as follows:-
"11 Time within which application to be made
(1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof."
In Lazenby v McDermott [2000] TASSC 121 Underwood J (as he then was) said at [23]:-
"[23] As Crisp J observed in In re Wherrett [1963] Tas R 178 at 179, the Testator's Family Maintenance Act, s 11(2), confers an unfettered power to extend the time within which proceedings under the Act may be commenced. I respectfully agree with his Honour's observation that each case must therefore depend upon its own facts and that it is unwise to attempt an exhaustive list of the circumstances in which an order will be made. Obviously, relevant matters in the exercise of the discretion will include the length of the delay, whether there is a reasonable explanation for the delay, prejudice to the respondents and the strength of the applicant's case. See, eg, In re Guskett deceased [1947] VicLawRp 28; [1947] VLR 212; Re Walker, deceased [1967] VicRp 116; [1967] VR 890;Re Lauer, deceased [1984] VicRp 14; [1984] VR 180; Re Burgess [1984] 2 Qd R 379. In Re Barrot, deceased [1953] VicLawRp 45; [1953] VLR 308, Sholl J said, at 312:
'The jurisdiction to extend the time is discretionary. But, while it can never be right for the Courts, when the Legislature has not done so, to attempt to specify grounds on which alone the discretion can be exercised in favour of an applicant, it is on the other hand obvious that the mere making of an application for an extension of time is not enough to constitute prima facie a ground for granting it. The legislation contemplates that the court or Judge must be satisfied of some circumstances which should induce it or him, acting judicially - ie, fairly and properly, upon relevant materials and in relation to relevant considerations - to excuse the applicant from what would otherwise be the privative operation of the section as a result of the delay.'"
Here the delay is not lengthy. At the time of Mr Burdon's death the applicant was aged 77 years. She was depressed following Mr Burdon's death and in August 2016 was hospitalised for pneumonia for several days. She was not aware of the time limit for bringing an application for further provision. In December 2016, shortly following the issue of titles to the subdivided lots, she became concerned about seeing people around the property. In December 2016 she spoke to an officer of the local council concerning the payment of rates. She was informed that one of the lots had already been transferred. The council officer recommended that the applicant see a solicitor, which she did shortly after the conversation. A letter of advice from the solicitor was received in January 2017 and the application for further provision was filed on 20 February 2017. The delay has been satisfactorily explained. The transfer of the lots to Mr Burdon's son and grand-son had occurred prior to the filing of the application. Pursuant to the Act s 11(4) these transfers cannot now be disturbed. There is no claim that the late pursuit of the claim will cause any prejudice.
It is clear from the background, which I have already recited, that the applicant has a strong claim for further provision. She has no satisfactory means of paying for the upkeep for the house and the outgoings and, by the Will, the selection of a substitute house is within the discretion of the executor. In short, Mr Burdon has left her with no income and no autonomy as to her future living arrangements.
The delay is not lengthy, it has been satisfactorily explained and the late pursuit of the application has not resulted in prejudice. The applicant has a strong claim. The justice of the case rests with time being extended and there will be an order accordingly.
The Act s 3(1) is as follows:-
"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."
To bring herself within the operation of the provision, the applicant must firstly establish as a matter of fact that she has been "left without adequate provision for (her) proper maintenance and support". This jurisdictional question is to be answered as at the date of death of the testator. Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; White v Barron [1980] HCA 14, 144 CLR 431.The enquiry is undertaken from the perspective of a wise and just testator. Bosch v Perpetual Trustee Co[1938] AC 463 at 478–479.
The determination of the jurisdictional question "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".Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201.
Where the discretion is enlivened by a determination that the applicant has been left without adequate provision for his or her proper maintenance and support, the exercise of the discretion will be influenced by similar considerations to those applicable to the first or jurisdictional stage of the enquiry. Singer at 210.
If in the exercise of the discretion the Court determines that provision, or further provision, ought be made for an applicant, the provision which can be made is limited to doing only that which is necessary to satisfy the obligation of the deceased to make adequate provision for the proper maintenance and support of the applicant. "... 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".Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, per Dixon CJ at 19.
In Gargano v Coves [2018] NSWSC 985 Halen J said at [160]:-
"As a broad general rule, and in the absence of special circumstances, the general duty of the deceased to his or her spouse, to the extent to which his or her assets permit him or her to do so, is to ensure that she or he is secure in the matrimonial home, to ensure that she or he has an income sufficient to permit her or him to live in the style to which she or he is accustomed, and to provide her or him with a fund to enable her or him to meet any unforeseen contingencies. Generally speaking, the amount should be sufficient to free her or his mind from any reasonable fear of any insufficiency as she or he grows older and her or his health and strength fail (see: Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24). Concern as to the capacity of the spouse to maintain herself or himself independently, and autonomously, may also bear upon the notion of what is proper provision."
There is no evidence to suggest that the beneficiaries named in the Will have competing claims other than by virtue of the fact that they had been selected by Mr Burdon to be the recipients of his bounty. There is nobody other than the applicant who has claimed provision under the Act.
Mr Burdon and the applicant had both been previously married. No doubt Mr Burdon wanted his estate to ultimately go to his side of the family, rather than ultimately go to his wife's sole surviving daughter. However Mr Burdon's primary obligation in the circumstances was to the applicant and there is no evidence that he had any obligation to his adult children, his grand-children or his great grand-children.
Based upon the applicant's substantial contribution to the accumulation of the estate asset, namely the property at Marion Bay, the length of the marriage, the applicant's dependence on a share of the estate for her future comfort and support and the absence of any strong competing claims I have come to the following conclusion:-
·A mere licence to occupy the Marion Bay home or a substituted home was not adequate provision for the applicants proper maintenance and support.
·A life interest in the property at Marion Bay would not adequately reflect the applicant's contribution to the acquisition of the property and would still leave her without adequate means to maintain it.
·The making of adequate provision necessitated the applicant being left with the home and a substantial portion of the proceeds of the sale of the subdivided building allotments so that she had the means to support herself and would have a fund to give her some ability to cope with any financial vicissitudes of life.
The applicant has confined her claim to provision being made for her by way of the transfer to her of the home and the access block. These will be the orders:-
1The time limited for the bringing of the application is extended to the date upon which it was filed, namely 20 February 2017.
2That provision be made for the applicant as if clause 8 of the Will was substituted with the following:-
"I give, devise and bequeath absolutely to my wife Kathleen Grace Burdon my real property comprised in certificates of title volume 172010 folio 1 and volume 172009 folio 1."
3The grant of probate is to be brought into court and a certified copy of this order is to be made upon it.
4The hearing of any questions as to the costs of the proceedings stands adjourned sine die.
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