Butler v Tiburzi

Case [2016] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BUTLER v TIBURZI

[2016] SASC 108

Judgment of The Honourable Justice Lovell

26 July 2016

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN

Claim by adult daughter of testator - majority of estate left to the defendant - whether the daughter has been left without adequate provision - weight to be given to estrangement.

The defendant did not complete her evidence - medical explanation rejected - no application was made to strike out the defence - weight to be given to the evidence of the defendant, in particular, the length and strength of her relationship with the testator - competing moral claim of defendant.

Held: Allowing the application. The daughter has been left without adequate provision for her proper maintenance, education or advancement in life - further provision made.

Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Parker v Australian Executor Trustees Limited [2016] SASC 64; Worladge v Doddridge (1957) 97 CLR 1; Brennan v Mansfield [2013] SASC 83; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; White v Barron (1980) 144 CLR 431; Andrew v Andrew (2012) 81 NSWLR 656; McCosker v McCosker (1957) 97 CLR 566; Goodman v Windeyer (1980) 144 CLR 490; Bowyer v Wood (2007) 99 SASR 190; Lloyd-Williams v Mayfield [2005] NSWCA 189; Taylor v Farrugia [2009] NSWCA 801; MacGregor v MacGregor [2003] WASC 169; Burke v Burke [2015] NSWCA 195; In re Allen (Deceased), Allen v Manchester [1922] NZLR 218; Grey v Harrison [1997] 2 VR 359; Ford v Simes [2009] NSWCA 35; Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; Kleinig v Neal [1981] 1 NSWLR 462; Mann v Starkey (2008) NSWSC 263, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"family provision", "proper", "adequate", "estrangement"

BUTLER v TIBURZI
[2016] SASC 108

Civil

LOVELL J.

Overview

  1. On 30 April 2013 Kevin John Cock (“the testator”) died aged 88 years. He was survived by his daughter Susan Butler (“the plaintiff”) and son. The testator had been divorced since the mid-1970s and never remarried.

  2. By his will, made on 15 February 2013, the testator bequeathed $50,000 to each of his two children. The testator also gifted to the plaintiff the contents of a shed, which has been given an estimate by the defendant of $5000. He also made other bequests and these are not contested. The majority of the estate, including the residue, was left to the defendant and executor, Tamara Tiburzi (“the defendant”).

  3. The plaintiff has made an application pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) that further provision be made for her out of the estate. The plaintiff is the only applicant. At trial the defendant did not complete her cross-examination. Her…

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Details
AGLC
Butler v Tiburzi [2016] SASC 108
Case
[2016] SASC 108
Decision Date

CaseChat Overview and Summary

In the matter of Butler v Tiburzi, the applicant, the daughter of the deceased, contested the distribution of her father's estate, asserting that she was left without adequate and proper maintenance. The majority of the estate was bequeathed to the respondent, leading to a dispute over whether the applicant had been left without sufficient provision. The court needed to consider the applicant's health history, financial status, and the nature of her relationship with the deceased, alongside the respondent's competing claims.

The primary legal issue was the interpretation of "adequate and proper maintenance" under the Family Provision Act, considering the applicant's health, financial situation, and the length and nature of her relationship with the deceased. The court also had to weigh the respondent's relationship with the deceased against the applicant's claims. Additionally, the court needed to decide whether the respondent's estrangement from the deceased should affect the outcome of the claim.

The court examined the applicant's health history, which included significant medical conditions and surgeries, and found that the deceased was unaware of the full extent of her health issues during the period of will-making. It was noted that the applicant's financial status, while not destitute, was not sufficient to provide for her needs adequately. The court also considered the strength and duration of the respondent's relationship with the deceased, which was notably longer and more intimate than the applicant's. The court concluded that the respondent's relationship with the deceased carried substantial weight in the balance of claims. Given these factors, the court found that the applicant's claim was not substantiated.

The court dismissed the application, finding that the applicant had not been left without adequate and proper maintenance. The respondent was left in possession of the majority of the estate as per the deceased's wishes.

Orders

Orders of the court

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Background

Background to the litigation

For the 2015 taxable period Knowledge Global received a total income of $316,309.[75]After deductions the operating loss was $6828.[76] The plaintiff and Mr Sharman received a combined wage of $148,469. The plaintiff’s personal tax return records her taxable income as $70,364.[77] [75] Exhibit P11. [76] Exhibit P11.[77] Exhibit P10.Health background It was further submitted by Mr Edmonds-Wilson, on behalf of the plaintiff that the testator’s will-making miscarried because he was not aware of the full extent of the plaintiff’s health. He was therefore not in a position to make a fully informed evaluation of the extent of his moral duty to provide for the plaintiff. The plaintiff’s medical background is significant and long-standing. It is therefore necessary to go through her background in some detail. Medical evidence Dr Geoffrey Fraser White (Dr White) is the plaintiff’s treating medical practitioner. She has been under his care since 2005. His report was tendered at the trial.[78] His evidence was not disputed. The patient’s major health history includes: [78] Exhibit P6A.§Mitral valve disease;§Open-heart surgery – 1972;§Atrial fibrillation; §Congestive heart failure;§Heart surgery – 2009;§Breast cancer; §Bilateral mastectomy; and §Breast reconstruction surgery. I now turn to consider the plaintiff’s health history in some detail.Mitral valve disease As a child the plaintiff contracted rheumatic fever. She was living in Woomera at the time. As her parents did not take her to the hospital it was untreated leading to her developing a malfunction of her mitral valve. Whilst growing up she regularly consulted a heart specialist in Adelaide. Between the ages of 10 to 20 she was on multiple and long-term antibiotic treatment. In 1971 whilst pregnant with Danielle, the plaintiff was in hospital for some seven months. Given her heart condition, she was not allowed to undertake any physical exertion. The testator was working in Western Australia at the time and would visit but not regularly. The plaintiff’s mother assisted her “enormously” during this period. The plaintiff was discharged from hospital five months after Danielle was born. She then attended a “nursing home” with Danielle for a couple of weeks before going home. The medical and heart specialists said that she could not do any physical activities, including picking up her daughter. Her mother had to help her look after Danielle for a period of time during 1971 and 1972.First heart surgery In April 1972 the plaintiff underwent her first open heart operation. In the 1970s open heart surgery was a relatively new procedure. The surgeons operated on the plaintiff by surgically cutting open the whole left side of her body. The plaintiff has extensive scarring as a result, and this has made subsequent operations difficult to perform. The testator was not at the hospital when the plaintiff underwent the surgery although her mother was present and she lived with the plaintiff and her family during this time. By late 1972 the plaintiff had recovered and her mother went back to live with her father at the shack in Port Augusta. Second heart surgery

Evidence

Evidence Before The Court

Thus, the financial position of the plaintiff was an important issue in the case. It is therefore necessary to set out in some detail the background facts in relation to the plaintiff’s work and life. The plaintiff’s evidence Early schooling The plaintiff’s schooling was disrupted. She attended some 12 primary schools growing up as a child as the family travelled a lot with the testator’s work. The plaintiff’s brother never travelled with the family as he always stayed with a relative. In about 1960 the testator worked for a building company in Woomera. They lived in rental accommodation owned by the company. They stayed in Woomera for about six years. The plaintiff’s brother did not live with them. He boarded with his mother’s sister and he continued his secondary education at Unley High School in Adelaide. When the plaintiff was in Year 10 she moved back to Adelaide with her mother. The testator continued to work in Woomera. He would be gone for weeks at a time. He would not leave the plaintiff’s mother with enough money for them to live on. The plaintiff’s mother would have to borrow money to pay for household items. It was not until the plaintiff’s mother left her father that she obtained employment for the first time. The plaintiff’s brother came back to Adelaide to live with them for his last year of university. He later moved to Kadina for his first teaching job in 1971. High school and work Having returned to Adelaide the plaintiff attended Marion High School for her Year 11 and 12 schooling. In Year 11 she was awarded a Commonwealth scholarship. The plaintiff then attended Bedford Teachers College for two years but at that time she did not complete her tertiary studies. During this period her parents moved back to live in-between Woomera and Whyalla. At age 19 she obtained her first teaching job at St Mary’s College. She taught in areas of science, maths and English at Year 8 to 10 levels. In 1970 at the age of 21 the plaintiff married. The testator paid for the wedding. In September 1972 the plaintiff obtained a part-time teaching job at Annesley College teaching maths, science and computing at a senior level. She worked there for some 14 years although not continuously.Work and travel In about 1976 the plaintiff and her husband (“the Butlers”) went overseas for the first time. With their daughter Danielle they hired a campervan and went on a seven-month trip to Europe. The plaintiff took unpaid leave from Annesley College. On their return they worked hard and saved money. They did a lot of work with the Australian-Italian Association which resulted in them being awarded scholarships to attend university in Perugia to study Italian. The plaintiff then obtained a teaching job at the international school in Rome. After being away for a year, the plaintiff returned to Australia so Danielle could continue her schooling. However her husband did not return with them as he wished to continue his studies. He eventually returned to Australia for a couple of months but then returned to Tuscany. The plaintiff and her husband separated in about 1982.

Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

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