Drioli v Rover

Case [2005] SASC 395

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

DRIOLI AND ANOR v ROVER

Judgment of The Honourable Acting Chief Justice Perry

14 October 2005

SUCCESSION - FAMILY PROVISION AND MAINTENANCE

Claims by two adult daughters against the estate of their deceased father - he had separated from their mother when they were in their teens - they had virtually nothing to do with him thereafter - he remarried, but there were no children of the second marriage - a large part of his estate derived from gifts inter vivos from his second wife - consideration of differences of opinion expressed in the High Court of Australia as to whether it was proper to have regard to "moral" duty or obligation in determining family provision claims - observations as to the "two stage" process involved in considering such claims and relevant factors to be taken into account - claims allowed and provision made from the estate in favour of both plaintiffs.

Inheritance (Family Provision) Act 1972 s 7, referred to.
Re Allen (dec'd), Allen v Manchester [1922] 41 NZLR 218; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; [1938] 2 All ER 14; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1978-1979) 143 CLR 134; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin and Ors (2005) 213 ALR 692; McCosker v McCosker (1957) 97 CLR 566; White v Barron and Anor (1980) 144 CLR 431; In re Allardice; Allardice v Allardice (1910) 29 NZLR 959; [1911] AC 730; Goodman v Windeyer (1980) 144 CLR 490; Delisio and Ors v Santoro Besanko J, 27 February 2002, judgment No [2002] SASC 65 (unreported); Fennell and Ors v Aherne Judge Withers, 22 July 2005, judgment No [2005] SASC 280 (unreported), considered.

DRIOLI AND ANOR v ROVER
[2005] SASC 395

Civil

  1. PERRY J. The plaintiffs claim an order pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”), that provision be made out of the estate of Lloyd William Rover deceased (“the deceased”) for their proper maintenance, education or advancement in life.

  2. The deceased died on 31 May 2003, aged 75 years. His last will is dated 7 September 1984. In the will he left the whole of his real and personal estate to his widow, Janet Ann Rover, who is the defendant to the proceedings.

  3. Probate of the will in common form was granted by this Court to her as sole executrix on 25 August 2003.

  4. The statement of assets and liabilities attached to the application for the grant of probate disclosed a net estate as at the date of death of the deceased amounting to $443,337.16. The bulk of the estate comprised investments in shares in various publicly listed companies.

  5. An affidavit sworn by the defendant shortly before the commencement…

Continue reading Drioli v Rover

Sign in free to access the full text

Details
AGLC
Drioli v Rover [2005] SASC 395
Case
[2005] SASC 395
Decision Date

CaseChat Overview and Summary

The case of Drioli v Rover involves claims made by two adult daughters, Lyndall Ellen Drioli and Julie Yvonne Hillman, against the estate of their deceased father. The plaintiffs alleged that they were owed family provision from their father's estate. The deceased had separated from their mother when the plaintiffs were teenagers, and they had little to no contact with him thereafter. The deceased remarried and had no children from that marriage, and a significant part of his estate came from gifts from his second wife. The court was tasked with determining whether any provision should be made in favour of the plaintiffs and, if so, how much.

The central legal issue in this case was whether the plaintiffs had established a sufficient claim for family provision under the relevant legislation. The court considered the differences of opinion expressed in the High Court of Australia about whether it was appropriate to consider "moral" duty or obligation when determining family provision claims. The court also discussed the "two stage" process involved in assessing such claims and the relevant factors to take into account. The court found that the plaintiffs had satisfied the jurisdictional test and were entitled to a grant from the deceased's estate.

The court found that the plaintiffs had established their case for provision to be made for them from the deceased's estate. The court recognised that the plaintiff Mrs Drioli's claim might be regarded as somewhat stronger than that of Mrs Hillman, given the differences in their circumstances. Mrs Drioli had lived in more straitened circumstances than her sister, and Mrs Hillman's means were more adequate for her maintenance and advancement. The court concluded that both plaintiffs qualified for a grant, but the differences in their circumstances justified some distinction as to the amount of the provision to be made for each of them.

The final orders of the court were that both plaintiffs were entitled to a grant from the deceased's estate. The amount of the grant for each plaintiff was to be determined by the court, taking into account the differences in their circumstances. The court found that Mrs Drioli's claim was stronger than that of Mrs Hillman and that the grant to Mrs Drioli should be higher than that to Mrs Hillman. The court also noted that the deceased owed a continuing obligation to maintain his former wife and children, at least until they became self-supporting, and that more could have been expected of him, particularly in the early years after he left the family home.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The defendant opposed the plaintiffs’ claims. In the result, the issues at trial were whether any provision should be made in favour of the plaintiffs, and if so, how much.Background The evidence does not establish when the plaintiffs’ mother, Nola Ellen Rover, married the deceased. The plaintiff Lyndall Ellen Drioli (“Mrs Drioli”) was born on 16 November 1957. Her sister, the plaintiff Julie Yvonne Hillman (“Mrs Hillman”) was born on 29 June 1960. They both spoke of a happy home life associated with a normal upbringing, until shortly before the deceased left their mother in 1973. Both plaintiffs witnessed a deterioration in their parents’ relationship leading up to their father’s departure. A decree nisi for divorce between the deceased and Nola Rover became absolute in September 1975. The deceased had supported the family from the earnings of a business which he conducted under the name Conn Organ Centre. He was the South Australian agent of Conn Organs, a United States company which manufactured electronic organs for church and domestic use. He conducted the business from a shop in King William Street, Adelaide. Both plaintiffs spoke of the disruption to the household occasioned by their father’s departure and the increased stress placed on their mother in bringing up two teenage girls. They found themselves in straitened financial circumstances. Their mother Nola Rover supported the family on a deserted wife’s pension until she re-trained in her former occupation of a hairdresser and obtained some work in that profession. It appears that at some stage, under what was described in evidence as a “court settlement”, the deceased paid to the plaintiffs’ mother $25 per week maintenance, and as well met payments amounting to about $40 per month on a mortgage over the former matrimonial home. When the deceased left the home, Mrs Hillman was aged 13 years and Mrs Drioli 15. Mrs Drioli left home at the age of 17 years in 1975, two years after the departure of her father. She left school about a year before she left home. When she left school she obtained employment at The News newspaper. According to her evidence, she found it “impossible to cope with the stress of family life” after her father had left the home. She said in evidence that she left home as “I had had enough. I didn’t mind helping the family, my sister and my mum, but my friends weren’t doing it so I thought, ‘well, why should I?’”. Mrs Hillman reacted badly to the separation of her parents. She contracted glandular fever, missing most of year 11. She left school before completing year 12, when she obtained work at a business known as Fotomart. She was then about 17. She stayed at home longer than her sister, and did not leave home until she married in 1980. Until then she paid board to her mother. Both daughters helped their mother financially as and when they could. It appears that once the deceased had left home, he had very little contact either with Nola Rover or his two daughters.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRY J
This case is an example of two young women who were clearly determined to lead their own lives from an early age and who recognised no obligation nor felt any desire to rekindle the ties they had enjoyed with their father before their relationship with him was ruptured by his departure from the family home.Conclusions Considerations peculiar to this case of the kind to which I have just referred have caused me to pause hard and long on the question whether or not the plaintiffs have satisfied what I have described as the jurisdictional test. While I suppose it was always open to the deceased to try to maintain, or to revive, some relationship with the plaintiffs, the long estrangement between the parties and the fact that the plaintiffs made no attempt to share their lives with the deceased, does not create a particularly favourable backdrop against which to consider their claims. Although I can understand that the plaintiffs may have felt some antagonism towards the deceased arising out of the circumstances in which he left the matrimonial home, it would be wrong of me at this interval of time, and given their death, to attempt to ascribe any blame as between the deceased and the plaintiffs’ mother with respect to their separation. On the other hand, whatever may have led to the separation of the plaintiffs’ parents, the deceased owed a continuing obligation to maintain his former wife and his children, at least until they became self-supporting. Although in one sense they became self-supporting relatively soon after his departure from the home, in ordinary circumstances, even where the parents have separated, one would not expect such a sharp cut-off between support from their father and a cessation of that support. It is doubtful whether what provision he made following his departure was sufficient even to maintain his wife, let alone his children. Furthermore, they received none of the kind of assistance which might have been expected to be forthcoming when they married. Vis-à-vis the deceased, the plaintiffs were very much left to make their own way in life. However much that might have been a product of their unwillingness to have much to do with the deceased, more could fairly have been expected of him, at least in the early years when they moved out of the family home into marriage and child bearing. In all the circumstances, but particularly bearing in mind those considerations, I have reached the view that the plaintiffs have established their case for provision to be made for them from the estate of the deceased. In reaching that conclusion, I recognise that the claim of the plaintiff Mrs Drioli might properly be regarded as somewhat stronger than the claim of Mrs Hillman. This is because Mrs Drioli has lived in more straitened circumstances than her sister, and Mrs Hillman has reached a position where her means can fairly be regarded as much more adequate for her maintenance and advancement than is the case with Mrs Drioli. While both qualify for a grant, the differences between their circumstances justify some distinction as to the amount of the provision to be made for each of them.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

Full text does not contain this section.