Dodge v Blissenden - [2009] TASSC 116

[2009] TASSC 116

COURT: SUPREME COURT OF TASMANIA

CITATION: Dodge v Blissenden [2009] TASSC 116

PARTIES:  DODGE, Shane Michael
  v
  BLISSENDEN, Robert
  DODGE, Bradley Allen
  DODGE, Jenna Maree
  DODGE, Scott (by his litigation guardian Brian Maxwell Dodge)
  DODGE, Glenn (by his litigation guardian Brian Maxwell Dodge)

FILE NO/S:   647/2008
DELIVERED ON:             18 December 2009
DELIVERED AT:              Hobart
HEARING DATE:             9 December 2009
JUDGMENT OF:              Blow J

CATCHWORDS:

Succession – Family provision and maintenance – Failure by testator to make sufficient provision for applicant – Whether applicant left with insufficient provision – General principles – Onus of proof – Unreliable evidence – Applicant's full financial position not established.

Aust Dig Succession [309]

REPRESENTATION:

Counsel:
             Applicant:  K B Procter SC
             First Respondent:  J Bourke
             Other Respondents:  B R McTaggart
Solicitors:
             Applicant:  Murdoch Clarke
             First Respondent:  Blissenden Lawyers
             Other Respondents:  Ogilvie Jennings

Judgment Number: [2009] TASSC 116
Number of paragraphs: 32

Serial No 116/2009
File No 647/2008

SHANE MICHAEL DODGE v ROBERT BLISSENDEN,
BRADLEY ALLEN DODGE, JENNA MAREE DODGE,
SCOTT DODGE (by his litigation guardian Brian Maxwell Dodge)
and GLENN DODGE (by his litigation guardian Brian Maxwell Dodge)

REASONS FOR JUDGMENT BLOW J

18 December 2009

This is an application under the Testator's Family Maintenance Act 1912 ("the TFM Act") by a man whose father made a will and left him nothing. The testator, Gordon Allen Dodge, died on 8 May 2008. His last will was dated 22 January 2008. By cl 6 of that will, he explained why he had made no provision for the applicant. That clause reads as follows:

"I have made no provision in this my Will for my son shane michael dodge as I have only re-established contact with him in December 2007 after no contact from him for over eight (8) years and he has advised me that he owns his own business and is financially secure."

At the time of his death, the testator's assets comprised an unencumbered house in Moonah, its contents, a 1997 motor vehicle, and a bank account with $8,379.91 in it. Apart from the funeral bill, the only liabilities were unpaid telephone and electricity accounts totalling $239.75.

By his last will, the testator directed his trustee, the first respondent, to distribute his estate as follows:

·     The contents of his home were to go to a nephew.
·     The proceeds of sale of his principal place of residence were to be distributed equally among such of his grandchildren Bradley Allen Dodge, Jenna Maree Dodge, Scott Dodge and Glenn Dodge who survived him and attained the age of 18 years.
·     The residue was to go to his son David Allen Dodge if he survived him, which he did.

The burden of the testator's debts, and the funeral, testamentary and administrative expenses falls on the residuary estate: Administration and Probate Act 1935, SchII, PtII, Item 2. There will be little or nothing left of the residuary estate after the debts and those expenses are paid.

The testator had three sons and no…

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 Dodge v Blissenden

Details

AGLC: Dodge v Blissenden [2009] TASSC 116
Case: [2009] TASSC 116
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Dodge v Blissenden involved a dispute between the executors of a deceased's estate and a claimant seeking family provision and maintenance under the Family Provision Act. The claimant argued that the deceased had failed to make sufficient provision for them, resulting in a substantial shortfall in their financial security. The court was tasked with determining whether the claimant had been left with insufficient provision, in accordance with the statutory criteria, and if so, what orders should be made for additional provision. The primary legal issues included the interpretation of the relevant provisions of the Family Provision Act, the onus of proof on the applicant, and the admissibility and weight of evidence presented regarding the financial circumstances of both the deceased and the applicant.

The court examined the evidence provided by the applicant, noting that it was unreliable and did not adequately establish their full financial position. It was observed that the applicant had not discharged the onus of proving they were left with insufficient provision for their maintenance, as required by the Family Provision Act. The court highlighted that the applicant had failed to provide a comprehensive and credible account of their financial circumstances, including their income, expenses, and assets. This lack of reliable evidence made it difficult to determine whether the applicant's financial situation was genuinely inadequate. Consequently, the court found that the applicant had not satisfied the necessary legal criteria to warrant a departure from the ordinary course of distribution of the estate.

In conclusion, the court ruled in favor of the executors, dismissing the applicant's claim for additional family provision and maintenance. The court determined that the applicant had not established their case sufficiently to meet the statutory requirements under the Family Provision Act. As a result, the court did not make any orders for additional provision for the applicant, maintaining the distribution of the estate as per the deceased's will.

Orders