De Jonge v Soar - [2024] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DE JONGE v SOAR & ORS
[2024] SASC 88
Decision of Judge Bochner a Master of the Supreme Court
SUCCESSION - FAMILY PROVISION - PROCEDURE - DISCOVERY AND INTERROGATORIES
Discovery of previous wills
Uniform Civil Rules 2020 (SA); Inheritance (Family Provision) Act 1972 (SA); Succession Act 2006 (NSW), referred to.
Brennan v Mansfield [2013] SASC 83; Butler v Tiburzi [2016] SASC 108; Tiburzi v Butler [2017] SASCFC 89; Jones v Alessi [2018] SASC 110 ; Armalis v Kasselouris [2006] SASC 198; Amos v Hogg [2018] NSWSC 1226, considered.

DE JONGE v SOAR & ORS
[2024] SASC 88
CIVIL

This is an action brought by the applicant for further provision from the estate of the deceased. The applicant and the deceased had been in a domestic partnership from about twenty years at the time of the deceased’s death. The applicant has lost capacity and this action is brought by her litigation guardian, Mr Ellis. Mr Ellis is the applicant’s son. All of the affidavit material setting out the applicant’s claim has been affirmed by Mr Ellis.
At the time of his death, the deceased and the applicant were living in a property owned by the deceased. I will refer to this property as the estate property. Under the deceased’s will, the house and its contents go to Bruce Soar, who is the deceased’s son and the second respondent. Mr Soar is also left one half of the residue of the estate. The applicant is left the net income of the other half of the residue on trust for her lifetime. The trustee of the trust is Mr Soar.
I note that the applicant owns a number of properties from which she earns rental income. She also owns shares and her combined income from rent and dividends is about $84,000 each year.
Mr Ellis says that the applicant has told him that the deceased prepared three wills during his lifetime. He does not know the contents of his first will. The applicant told him that the deceased’s second will was prepared in 2011 and that in this will he left her the estate property and its contents.
Mr Ellis says that he is aware that the deceased prepared his final will approximately six months before his death, while he was in hospital. He says that he contacted Mr Soar about this and was told by Mr Soar that the deceased wished to change his will so as to leave the estate property to Mr Soar.
Mr Soar says that his father wanted to leave the estate property to him because of the applicant’s dementia. He says that the deceased told him that he wanted the applicant to be cared for during her lifetime but wanted his wealth to go to his own family rather than to the applicant’s children. He says that his father was of the view that the applicant was no longer able to live on her own; this…

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 De Jonge v Soar

Details

AGLC: De Jonge v Soar [2024] SASC 88
Case: [2024] SASC 88
Decision Date: 5 July 2024

CaseChat Overview and Summary

De Jonge v Soar is a case that involved a dispute regarding the discovery of the deceased’s penultimate will. The case was heard in the Supreme Court of South Australia. The applicant, De Jonge, sought to discover the penultimate will of the deceased, Soar, as part of a family provision claim under the Family Provision Act 1975 (SA). The primary legal issue before the court was whether the penultimate will of the deceased should be considered discoverable and relevant in the context of the family provision claim. The court had to determine whether the previous wills of the deceased were discoverable documents in the action and whether they held any relevance to the issues at hand.

The court considered the admissibility of hearsay material relied upon by the applicant. It was established that the Uniform Civil Rules 2020 permit the use of hearsay material in affidavits presented at directions hearings. The court held that while the hearsay material was admissible, it was not sufficient, by itself, to render the penultimate will of the deceased a discoverable document. The court reasoned that the existence of previous wills by the deceased, a person of advanced age, was not surprising nor was it surprising that the wills were in different terms. The court further found that the South Australian and New South Wales cases relied on by the applicant did not provide support for the existence of a rule or principle that previous wills are discoverable or relevant in a claim brought pursuant to the Family Provision Act.

Ultimately, the court dismissed the application for discovery of the deceased’s penultimate will. The court held that the authorities from New South Wales were not applicable in South Australia as the relevant statutory provision in New South Wales was not replicated in the Act. The court concluded that the previous wills of the deceased were not discoverable or relevant in the context of the family provision claim. Consequently, the court did not consider it necessary to order the discovery of the penultimate will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Soar says that, in all of the circumstances, the application for discovery of the deceased’s penultimate will should be dismissed. Consideration I consider that the hearsay affidavit material relied on by the applicant is admissible in this application. The Uniform Civil Rules 2020 (“the UCR”) allow the use of hearsay material in affidavits to be tendered at directions hearings.[6] The definition of “directions hearing” in the UCR is broad enough to encompass an argument on an interlocutory application.[7][6] UCR 101.4.[7] UCR 2.1(1). While I consider that the hearsay material is admissible, I do not consider that it is of sufficient weight, by itself, to make the penultimate will of the deceased (or, indeed, any will other than his last will) a discoverable document in this action. The fact that the deceased, a person of advanced years, had made previous wills is not in any way surprising. Nor is it surprising that, given that more than one will was made by the deceased, those wills are in different terms. I do not consider that the South Australian cases relied on by the applicant provide support for the existence of a rule or principle that previous wills are discoverable or relevant in a claim brought pursuant to the Act. While the judges in those cases had before them previous wills of the deceased, to which they referred, there is no suggestion that the decision reached was in any way informed by the disposition of property in those earlier wills. Nor is there any suggestion that the discovery of those wills was ever in dispute between the parties. The fact that the wills were put into evidence by consent does not lead to a conclusion that they were in fact discoverable or in any way probative of the issues in dispute. The mere fact that, in cases deciding applications brought pursuant to the Act, one or other party has tendered previous wills of the deceased, does not lead to the conclusion that previous wills must always be discovered or brought before the Court in one way or another. Where the question is in dispute between the parties, the usual principles will apply. I also do not consider that the authorities deriving from New South Wales are of any assistance to the applicant. Section 60 of the Succession Act 2006 (NSW) specifically provides:(1)The Court may have regard to the matters set out in subsection (2) for the purpose of determining--(a) whether the person in whose favour the order is sought to be made (the"applicant" ) is an eligible person, and(b) whether to make a family provision order and the nature of any such order.(2) The following matters may be considered by the Court--…(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,… This provision is not replicated in the Act. In the circumstances, I do not consider that the New South Wales cases provide any assistance in deciding whether prior wills are discoverable in South Australia.