Doedens v Owen - [2018] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DOEDENS & ORS v OWEN
[2018] SASC 12
Reasons for Decision of The Honourable Justice Nicholson
16 February 2018
SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION
A number of issues for determination arose following the settlement of the claims by the three plaintiffs for the provision of their maintenance, education or advancement from the deceased’s intestate estate. This ruling addresses two of those issues. The first is whether the Court should grant approval to a compromise reached between the defendant and the third plaintiff who is a litigant under a disability. Should the compromise be approved by the Court, the second issue the Court is required to determine is who should be appointed to fulfil the role of trustee in accordance with the compromise.
Held:
1.       Approval to the compromise is given.
2.       The Fund the subject of the compromise is to be held in trust on terms with the third plaintiff’s daughter, Gillian Doedens, as trustee.
3.       Orders are made as set out in paragraph [48] of the judgment.
Inheritance (Family Provision) Act 1972 (SA) s 6, s 7; Administration and Probate Act 1919 (SA) s 72G; Supreme Court Civil Rules 2006 (SA) r 257, r 258; Public Trustee Act 1995 (SA) s 16; Guardianship and Administration Act 1986 (Vic) s 47, referred to.
In the Estate of Wardle (Deceased) (1979) 22 SASR 139; Elliott v Diener (1978) 21 ACTR 21; Diver v Diver & Ors [2007] VSC 146, considered.

DOEDENS & ORS v OWEN
[2018] SASC 12
Civil
NICHOLSON J
Introduction

This ruling deals with two issues arising out of the settlement of the claims by three plaintiffs for provision for their maintenance, education or advancement out of the estate of Christopher Owen who died intestate on 29 November 2015. The first issue is whether or not the Court should grant approval to a compromise reached between the defendant and the third plaintiff who is a litigant under a disability. The second issue requires the Court to determine who is to fulfil the role of trustee, necessary as part of the implementation of the compromise, in the event that the Court were to give its approval. A third issue concerns the question of costs but this will be dealt with in later reasons and after hearing further argument.
John Owen is the third plaintiff in these proceedings. He is the father of the deceased and has brought an application pursuant to s 6(i) and s 7 of the Inheritance (Family Provision) Act 1972 (SA) for his further maintenance, education or advancement to be provided for out of his son’s estate.
The defendant to the application is Larysa Owen, the wife of the deceased and the holder of letters of administration with respect to the deceased’s intestate estate. There are no children of the marriage and thus, in accordance with s 72G…

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 Doedens v Owen

Details

AGLC: Doedens v Owen [2018] SASC 12
Case: [2018] SASC 12
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the case of Doedens v Owen, the dispute centred around the distribution of the estate of the deceased, Christopher Andrew Owen. The primary concern was whether the applicant, Ms Doedens, was left with insufficient provision for her maintenance, education, or advancement in life. The matter was heard and determined by the Supreme Court of South Australia.

The legal issues the court had to resolve included the interpretation and application of the Family Provision Act in relation to the deceased's estate. Specifically, the court needed to decide whether Ms Doedens had been adequately provided for under the will, and if not, what orders should be made to ensure she was properly maintained. The court also had to consider the appropriate distribution of funds to ensure the maintenance and advancement of the disabled third plaintiff, John Owen.

In reaching its decision, the court thoroughly examined the provisions of the will and the financial circumstances of the parties involved. The court found that Ms Doedens had not been adequately provided for, and that the deceased's estate had sufficient funds to meet her needs. Consequently, the court ordered that a legacy of $12,500 be paid to Ms Doedens, and an additional $80,000 be held in trust for John Owen, with specific conditions for its use and management. The court also approved the terms of the compromise reached between the parties regarding the third plaintiff.

The court's final orders included the approval of the compromise terms, the payment of specified legacies, and the establishment of a trust for John Owen's benefit, with detailed provisions for the investment, management, and accounting of the trust fund. The court also reserved the question of costs for another judge and allowed for further applications if necessary.

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

I am satisfied that the criteria (i) to (iv) set out earlier are met in the case of Ms Doedens.Conclusion Minutes of order approving the terms of the compromise with the third plaintiff together with the terms of the proposed trust have been agreed in principle by the parties. I have made amendments consequential on my determination to appoint Ms Doedens as trustee together with some cosmetic drafting changes and I have included a condition requiring Ms Doedens to render an accounting to the defendant every three months. I make the following orders.1.The Court approves the parties’ compromise insofar as it affects the third plaintiff, a person under a disability.2.The following amounts be paid out of the estate of Christopher Andrew Owen late of Unit 5, 8 Prospect Road Fitzroy 5082 Scientist deceased (“the deceased”) who died on 29 November 2015 at Bedford Park 5042 for the maintenance, education or advancement in life of the second and third plaintiffs namely:(a)that the estate of the second plaintiff be paid a legacy in the sum of $12,500 inclusive of interest to the date of this order by cheque styled “Estate MF Owen” and paid to the solicitors for the late second plaintiff.(b)that the sum of $80,000 be paid to the third plaintiff’s daughter Gillian Doedens as special trustee upon the trust as provided for by Annexure A to this order.3.The burden of the legacies referred to in paragraph 2 of this order be borne by and paid out of the residuary estate of the deceased.4.The question of costs of the second and third plaintiffs be reserved to Justice Nicholson.5.A certified copy of this order be made on the letters of administration for the estate of the deceased and, for that purpose, the defendant as Administrator produce the letters of administration to the Registrar of Probates.6.The parties may apply for further orders and directions.Annexure AA.The sum of $80,000 is to be paid to Gillian Doedens (“the special trustee”) to be held on trust for John Owen.B.The special trustee shall upon receiving appropriate expert financial advice invest the $80,000 and, from time to time, vary such investments, as so advised (the $80,000 together with all income earned from time to time upon its investment is herein referred to as “the Fund”).C.During the life time of the said John Owen the special trustee shall be permitted to pay the whole or any part of the income earned on the Fund for the benefit of John Owen in respect of medical treatment, diversional programmes, dental hygiene and any other care, treatment or expense which in the view of the special trustee, after taking advice of such person or persons as the special trustee deems appropriate, is for the comfort, wellbeing, maintenance and advancement of John Owen.D.The special trustee shall be permitted to reimburse Gillian Doedens the sum of $447.50 plus any invoice received and paid by the said Gillian Doedens in respect of therapy provided to the said John Owen since October 2017.E.If at any time the special trustee deems it expedient not to apply the whole of the income from the said fund then the special trustee shall be permitted to accumulate the unapplied income so that it becomes part of the Fund.F.During the life time of the said John Owen the special trustee shall be permitted to pay out of the capital of the Fund such sums and at such time or times as the special trustee deems fit for the benefit of John Owen in respect of medical treatment, diversional programmes, dental hygiene and any other care, treatment or expense which in the view of the special trustee, after taking advice of such person or persons as the special trustee deems appropriate, is for the comfort wellbeing maintenance and advancement of John Owen.G.The special trustee is to secure a pre-paid funeral for John Owen to the same standard as the funeral provided for his wife Marion Owen.H.At three monthly intervals commencing from the date of the inception of the trust, the special trustee shall provide to the defendant an accounting of her administration of the Fund, such accounting to include the location and nature of the investment of the Fund, documentary records of all income earned, and details of all expenditures incurred together with copies of invoices and/or receipts in support of all such expenditures which exceed $50.I.The special trustee shall be permitted to deduct from the Fund from time to time any reasonable fees and expenses incurred in respect of the administration of the Fund including the reasonable costs of obtaining financial advice, and of any reporting of her management to the Court or to Queensland Public Trustee or to the Defendant, Larysa Owen. J.The special trustee shall be at liberty to apply to the Court for further directions if required and the costs of seeking such further directions shall be payable from the Fund.K.The appropriate law insofar as the investment of and with respect to the accounting of the Fund is to be the law of Queensland.L.Upon the death of John Owen the remainder of the monies in the Fund (after deduction of any outstanding fees and expenses) is to be paid to Larysa Owen.M.Upon payment to Larysa Owen in accordance with paragraph L above the special trustee’s duties under the Trust shall cease and the special trustee shall be discharged from all duties under the Trust.

Ratio Decidendi

Legal Principle Established

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