GFR v SRP - [2023] TASSC 15

[2023] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: GFR v SRP [2023] TASSC 15

PARTIES:  GFR
  v
  SRP

FILE NO: 1787/2022

DELIVERED ON:  7 June 2023
DELIVERED AT:  Hobart
HEARING DATE/S:  26-28 April and 24 May 2023
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Intestacy and distribution on intestacy – Meaning of spouse under Intestacy Act 2010 – Defendant spouse of intestate – Intestate died survived by spouse leaving issue of the intestate and spouse – Spouse entitled to whole of the estate – Letters of administration granted to spouse

Intestacy Act 2010 (Tas), s 6
Relationships Act 2003 (Tas), s 4
S v B [2004] QCA 449, 1 Qd R 357, Brownell v Robinson [2017] TASSC 5, Brownell v Robinson [2017] TASFC 11, Pollock v New South Wales Trustee and Guardian [2022] NSWSC 923 followed.
Aust Dig Succession [1332]

REPRESENTATION:

Counsel:
             Plaintiff:  S McCullough
             Defendant:  K Read SC
Solicitors:
             Plaintiff:  Simmons Wolfhgen
             Defendant:  Butler McIntyre & Butler

Judgment Number: [2023] TASSC 15
Number of paragraphs: 39

Serial No: 15/2023
File No: 1787/2022

GFR v SRP

REASONS FOR JUDGMENT HOLT AsJ

7 June 2023

A contentious probate action

Where a person dies wholly intestate, upon application letters of administration (which may be limited in any way the Court thinks fit) are to be granted to one or more persons aged 18 years or over interested in the residuary estate. Administration and Probate Act 1935, ss13 and 13A. The order of priority of those entitled to apply for a grant in common form is set out in the Probate Rules 2017, r 19. The person having first priority is the spouse (within the meaning of the Intestacy Act 2010, s 6 which includes a person who "immediately before the intestate's death, was a party to a significant relationship within the meaning of the Relationships Act 2003"). The next in order of priority is a child. Where the child is a minor the grant in common form, unless otherwise ordered, is to be made for the use and benefit of the minor to a trust corporation or no fewer than two persons fitting the description guardian, guardian appointed by the Court or person considered suitable by the Court or Registrar. Probate Rules, r 58. Those interested in the residuary estate of an intestate are, firstly, solely the spouse if any issue are the issue of both the deceased and the spouse and, secondly, if there is no spouse, the children of the deceased. Intestacy Act, ss 13 and 28.
Here the deceased died survived by one child, born August 2019. The deceased had never been married but a question has arisen as to whether immediately before his death he was party to a significant relationship with the child's mother. Depending upon the answer to the question the grant will be made in terms that it is for the use and benefit of the child or it will be made…

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 GFR v SRP

Details

AGLC: GFR v SRP [2023] TASSC 15
Case: [2023] TASSC 15
Decision Date: 7 June 2023

CaseChat Overview and Summary

The case involved a dispute regarding the distribution of an estate under the Intestacy Act 2010. The plaintiff, GFR, sought a declaration regarding the entitlement to the estate of SRP, who had died intestate. SRP was survived by his spouse and issue of the deceased. The court was tasked with determining the meaning of "spouse" under the Intestacy Act 2010 and the entitlement of the spouse to the whole of the estate.

The court examined the relevant provisions of the Intestacy Act 2010 and considered whether the spouse was entitled to the whole of the estate in the circumstances where the deceased left both a spouse and issue. The court also had to consider whether the spouse was entitled to letters of administration over the estate.

The court found that the spouse was entitled to the whole of the estate under section 19 of the Intestacy Act 2010, which provided that where a deceased person leaves a spouse and issue, the spouse is entitled to the whole of the estate. The court further found that the spouse was entitled to letters of administration over the estate. The court noted that the spouse's entitlement to the whole of the estate did not mean that the issue were excluded from any benefit under the estate, as they would be entitled to reasonable provision for their maintenance, education, and advancement in life under section 22 of the Intestacy Act 2010.

The court granted letters of administration to the spouse and declared that the spouse was entitled to the whole of the estate.

Orders