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 108Civil
LOVELL J.
Overview
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.
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”).
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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- AGLC
- Butler v Tiburzi [2016] SASC 108
- Case
- [2016] SASC 108
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: LOVELL J
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