Hynard v GAVROS - [2014] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HYNARD v GAVROS
[2014] SASC 42
Judgment of Judge Dart a Master of the Supreme Court
25 March 2014
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - DUTY TO CHILDREN
The plaintiff is the daughter of the deceased – in her will the deceased left the whole of the residue of her estate to the first defendant who is the sister of the deceased – the plaintiff claims she is not left with adequate provision for her proper maintenance, education and advancement in life having regard to her moral claim to a greater share of the deceased’s estate.
Held: granting the plaintiff’s application – order made pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) – the plaintiff is to receive an amount equal to 55 per cent of the residue of the deceased’s estate.
Inheritance (Family Provision) Act 1972 (SA) s 7; Wills Act 1936 (SA) s 12, referred to.
Bowyer v Wood (2007) 99 SASR 190; Vigolo v Bostin and Others (2008) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463, applied.
Singer v Berghouse (1994) 181 CLR 201; Worladge and Another v Doddridge and Others (1957) 97 CLR 1; Coates v National Trustees Executors and Agency Company Limited and Another (1956) 95 CLR 494; Re Allen (deceased) [1922] NZLR 218; Re Greene's Estate (1930) 25 Tas. L.R. 15; White v Barron and Another (1979) 144 CLR 431; Ahearn v Ahearn [1917] St R Qd 167; Goodman v Windeyer and Others 144 CLR 490, discussed.

HYNARD v GAVROS
[2014] SASC 42

The plaintiff seeks an order that further provision be made out of the estate of her mother (“the deceased”) who died on 28 September 2012.
The application is made pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act). The plaintiff says that she has been left without adequate provision for her proper maintenance, education or advancement in life.
In my view, the plaintiff is, for the reasons that follow, entitled to an additional provision from the estate of the deceased. I propose to order that the plaintiff have a provision amounting to 55 per cent of the residue of the deceased estate.
The will
The will of the deceased was made on 22 March 2001. It was admitted to probate on 7 February 2013. The administration of the estate was granted to the defendant as the sole executor named in the will. The defendant is the sister of the deceased.
The will contained a number of specific bequests. They include:
1Some specified jewellery and the sum of $2000 to the deceased’s niece, Talia Kate Forrest.
2Some specified jewellery and the sum of $2500 to the plaintiff.
3Some specified jewellery and the sum of $2000 to the deceased’s niece, Donna Leigh.
4Some specified jewellery to the deceased’s other sister, Helen Jean Morgan.
5Some specified…

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 Hynard v GAVROS

Details

AGLC: Hynard v GAVROS [2014] SASC 42
Case: [2014] SASC 42
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the case of Hynard v Gavros, the plaintiff, who is the daughter of the deceased, sought a review of the deceased's will, which left the entire residue of the estate to the first defendant, the deceased's sister. The plaintiff argued that the bequests in the will did not provide her with adequate provision for her proper maintenance, education, and advancement in life, considering her moral claim to a larger share of the deceased's estate. The matter was heard as a summary trial under Supreme Court Civil Rules 312(12) due to the net estate of the deceased being less than $500,000, with an estimated value of approximately $372,000, primarily consisting of invested funds.

The legal issues the court needed to address were whether the deceased had satisfied her moral duty to the plaintiff by providing her with only $2500 and some jewellery from an estate of around $370,000, and if the plaintiff had been left without adequate provision for her maintenance, education, and advancement in life. The court needed to determine if the deceased had failed to satisfy her moral duty by significantly preferring the interests of her sibling over her child, as held in Bowyer v Wood, and if so, what adequate provision should be made for the plaintiff.

The court concluded that the deceased had failed to satisfy her moral duty to the plaintiff, as evidenced by the minimal bequest in the will. The court found that it was inappropriate for the deceased to prefer the interests of her sibling over her child without good reason, as stated in Bowyer v Wood. The court also considered that the plaintiff had been left without adequate provision, given her modest means and the need to support a child with special health needs. The court ordered that the plaintiff should receive an amount equal to 55% of the residue of the deceased's estate, in lieu of the $2500 bequest, pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA). The court recognised the difficulty and delicacy of determining an adequate provision but considered the financial circumstances of both claimants and the need to satisfy the plaintiff's moral claim.

The final order of the court was that the plaintiff would receive an amount equal to 55% of the residue of the deceased's estate, and the parties were to bring in Court minutes of order reflecting this conclusion. The court would hear further from the parties on any other issues.

Orders

Orders of the court

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Background

Background to the litigation

The will bequeathed the whole of the residue of the estate to the defendant. Background The trial of the action was conducted pursuant to the provision of Supreme Court Civil Rules 312(12) as a summary trial. Summary trials are permitted where the net estate of the deceased is less than $500,000. As at the date of the trial, the parties estimate the value of the net estate of the deceased to be in the order of $372,000. It consists, almost completely, of monies that are invested. Accordingly, the value of the estate will increase as interest accrues on the invested monies. At the trial the evidence of both parties was primarily given by affidavit. There was some limited evidence in chief from the plaintiff and defendant. They were the only witnesses to give oral evidence. Each was subject to limited cross-examination. I accept the evidence of each. There are very few factual matters in issue, nor do any serious issues of credit arise. It is simply that the parties advocate for different results based on the largely undisputed evidence. The contention of the defendant is that the plaintiff has failed to establish that she has been left without adequate provision. The plaintiff was adopted by the deceased and her then husband as a three day old infant. She was born on 5 March 1965 and is currently 49 years of age. When the plaintiff was about 8 years old the deceased and her father separated. The father moved to Queensland and the plaintiff initially spent part of the year in South Australia and part of the year in Queensland. There is some suggestion that the deceased may have suffered from some mental health issues at or soon after the time of the separation. It is not necessary for the Court to make any findings about that. The upshot was, however, that from about 1975 the plaintiff lived on a full-time basis with her father in Queensland and only came to South Australia to visit her mother during the school holidays. After completing High School the plaintiff obtained a traineeship as a commercial artist. In 1984 the plaintiff came to Adelaide to be with her mother. She lived with her mother for the first few weeks and then lived independently in Adelaide. The plaintiff stayed in Adelaide for about six months and thereafter returned to Queensland to live and has lived there ever since. At some time during 1990 the plaintiff became pregnant with her first son with her then partner. The deceased went to Queensland to stay with the plaintiff prior to the birth of her son. She stayed for about four weeks afterwards to assist her daughter. Approximately five months after having her first son the plaintiff returned to work at a printing business. She worked as the Art Department Manager. When her son was about two years old she brought him to Adelaide for a holiday for two weeks to see his grandmother. The plaintiff and her partner married on 1 August 1993. The deceased was unable to attend the wedding but wrote a letter, which was admitted to evidence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, a proper provision for the plaintiff would be 55 per cent of the residue of the estate of the deceased. It is appropriate that the plaintiff retain the jewellery bequeathed to her in the will. I would substitute for the bequest of $2500 a provision equalling 55 per cent of the residue of the estate of the deceased.Conclusion I grant the plaintiff’s application. I propose to order, pursuant to s 7 of the Act, that in lieu of the bequest of the sum of $2500 to the plaintiff provided in the deceased’s will, the plaintiff is to receive an amount equal to 55 per cent of the residue of the deceased’s estate. The parties are to bring in to Court minutes of order that reflect that conclusion. I will hear the parties further on any other issues.

Ratio Decidendi

Legal Principle Established

What the Court has to determine is what the moral duty of the testator was at the time of her death. In determining whether or not an applicant has been left without proper provision it is necessary to have regard, to some extent, to what a proper provision would be. As Mason J said in White v Barron and Another[14] it is slightly artificial to say that the first test has to be determined before the second test, because the two tasks which face a judge are similar. [14] (1979) 144 CLR 431 at 443.Consideration of the issues In considering whether the plaintiff has been left without adequate provision one needs to consider the position as at the time of the death of the testator. The Court also needs to determine what a wise and just testator would have done at that time with full knowledge of the relevant circumstances. The relevant circumstances here are that the plaintiff is a person of modest means and has to support a child who, because of health issues, has special needs. The first question the Court has to determine is whether, where the testator left the plaintiff some jewellery and the sum of $2500 out of an estate of approximately $370,000, she satisfied her moral duty to her daughter. This is a clear case. I cannot accept the contention of the defendant that the plaintiff has failed to satisfy the first test. The proper moral claim of the plaintiff has not been satisfied by the small bequest left to her in the will. The testator has preferred the interests of one of her siblings over her child. In Bowyer v Wood the Court held that it was inappropriate, without good reason, for the testator to prefer the interests of siblings over a child. That was regarded as a failure of moral duty.[15] There is no evidence as to why the testator has preferred her sibling over her child. The deceased and the defendant had a close relationship. That aside, there is nothing to suggest it was appropriate to so significantly prefer her over the plaintiff.[15] Bowyer v Wood (2007) 99 SASR 190 at 205. It might be on the evidence that she did not intend to do so. At the time the will was made, the testator had very few assets. It may be that the outcome has been distorted by the fact that after the preparation of the will the testator was left the residential property by her partner. There is no doubt that the plaintiff has been left without adequate provision. As the Privy Council said in Bosch, the task of exercising the power to award further provision will always be one of great difficulty and delicacy. It must always be one largely of guesswork.[16] [16] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 483. I am conscious of the fact that there are only two claimants on this estate and that an increased provision for the plaintiff will reduce the provision going to the defendant. The defendant, like the plaintiff, is in modest financial circumstances. She only works part-time and, because of her age, is unlikely to work for a long period into the future. Nonetheless, the Court has to determine an adequate provision for the plaintiff.