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Davies v James

Davies v James

Case [2019] TASSC 32 16 August 2019

Family Provision

Criteria for Determining Application

Treatment of Particular Applicants

Adequate Provision

Succession Law

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[2019] TASSC 32

COURT: SUPREME COURT OF TASMANIA

CITATION: Davies v James [2019] TASSC 32

PARTIES: DAVIES, Catherine Anne
v

JAMES, Richard Henry
as Executor of the Estate of the late Gwendoline James
JAMES, Richard
JAMES, Julie Louise
JAMES, Jennifer Carol

FILE NO:  2710/2018
DELIVERED ON:  16 August 2019
DELIVERED AT:  Hobart
HEARING DATES:  7, 8 and 9 August 2019
JUDGMENT OF:  Holt AsJ
CATCHWORDS:

Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Adult children generally –Medium sized estate – Equal bequest to four children – Applicant's failure to show that adequate provision for her proper maintenance and support had not been made.
Testator's Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1431]

REPRESENTATION:

Counsel:
             Applicant:  D Palmer
             First and second respondents:                  In person
             Third and fourth respondents:                  C Schokman
Solicitors:
             Applicant:  Worrall Moss Martin Lawyers
             First and second respondents:                  In person
             Third and fourth respondents:                 Ogilvie Jennings

Judgment Number: [2019] TASSC 32
Number of paragraphs: 30

Serial No 32/2019
File No 2710/2018

CATHERINE ANNE DAVIES v RICHARD HENRY JAMES AS
EXECUTOR OF THE ESTATE OF THE LATE GWENDOLINE JAMES and RICHARD JAMES and JULIE LOUISE JAMES and JENNIFER CAROL JAMES

REASONS FOR JUDGMENT HOLT AsJ
16 August 2019

The application

This is a claim by an adult child for further provision from the estate of the late Gwendoline James who died, aged 93 years, on 27 May 2018. Mrs James' husband had predeceased her in 2007. She was survived by her son, Richard (then aged 65 years), and three daughters, Jennifer, Julie and Catherine (then respectively aged 64 years, 62 years and 59 years). Mrs James was also survived by seven grandchildren. Her estate comprised $10,512.50 in a savings account and her home at Lindisfarne.
Mrs James had made her will in March 1991 in which she appointed her son as an executor, directed that the money in her savings account be divided equally amongst named grandchildren and directed that the balance of the estate be converted into cash and after payment of debts be divided equally between her four children.
The Lindisfarne home formerly occupied by Mrs James is subject to a contract of sale with expected net proceeds available for distribution of about $470,000. This would result in each of the four children receiving a sum of about $117,500.
The youngest daughter, Catherine, and her husband are dependent upon Centrelink payments for their day-to-day living expenses. They own a house, which is about 40 minutes drive inland from Rockhampton in Queensland. According to a computer generated report entitled "CoreLogic RP Data - RP Autoval Automated Valuation", the house has an estimated price range of $133,156 to $162,747. The house is subject to a mortgage securing a loan, the current debit balance of which is about $156,000.
No personal financial information has been provided by the son. The two other daughters have provided financial information. The eldest daughter, Jennifer, is…

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 Davies v James

Details

AGLC: Davies v James [2019] TASSC 32
Case: [2019] TASSC 32
Decision Date: 16 August 2019

CaseChat Overview and Summary

The case of Davies v James involved a dispute over the interpretation of family provision legislation following the death of the testator. The applicant, a daughter of the deceased, sought a greater share of the estate than she had received. The estate was of medium size, and the testator had left equal shares to his four children. The High Court was tasked with determining the criteria for assessing applications under the relevant statute and whether the applicant had been provided with adequate support.

The legal issues before the court were centred on the interpretation of family provision legislation and the specific criteria that must be met for an application to be successful. The court was required to consider whether the applicant had shown that she had not been adequately provided for in the will and whether the equal division of the estate was sufficient to meet the needs of the children. The court also needed to address the treatment of adult children in such applications and the appropriate standard for assessing whether adequate provision has been made.

The court held that the applicant had not demonstrated that she had not been adequately provided for, despite the absence of specific bequests to her. The court emphasised that the primary consideration in family provision applications is whether the deceased made adequate provision for the proper maintenance and support of the applicant. In this case, the court found that the equal division of the estate among the four children was sufficient to meet the needs of the applicant. The court further noted that adult children generally have fewer entitlements under the legislation compared to other family members. Consequently, the application was dismissed.

The final orders of the court were that the application for a greater share of the estate was dismissed, and the applicant was not entitled to further provision from the estate. The court confirmed that the equal division of the estate among the four children was adequate and that the applicant had not met the necessary criteria for a successful family provision application.

Orders