Illman v Sterrey
[2023] SASC 50
•3 April 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ILLMAN v STERREY & ORS
[2023] SASC 50
Judgment of Judge Dart a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - CIRCUMSTANCES TO BE CONSIDERED
Application for provision - applicant is a sibling of the deceased - question of standing of sibling - applicant needs to establish that he cared for or contributed to the maintenance of the deceased - he also needs to establish that he has been left without adequate provision for his maintenance, education or advancement in life - second to fifth respondents applied for summary judgment - question of which rule applies - UCR 143 and UCR 144 may apply - application only pursuant to UCR 144 - that rule does not apply to an action commenced by originating application - court may order otherwise - appropriate to order otherwise - applicant has failed to satisfy the jurisdictional issues - respondents entitled to summary judgment.
Held:
1. Court orders otherwise and permits UCR 144 to apply to this action.
2. The second to fifth respondents are entitled to summary judgment.
Inheritance (Family Provision) Act 1972 (SA) s 6, s 7; Testator's Family Maintenance Act 1918; Uniform Civil Rules 2020 (SA) rr 1.5, 143, 144; Federal Court of Australia Act 1976 (Cth), referred to.
Singer v Berghouse (No 2) (1994) 181 CLR 201; Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1; Bowyer v Wood (2007) 99 SASR 190; Coates v National Trustees Executors and Agency Company Limited & Anor (1956) 95 CLR 494; Vigolo v Bostin & Ors (2005) 221 CLR 191; Re Allen (deceased) [1922] NZLR 218; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Tiburzi v Butler [2017] SASCFC 89; Kozlowski v Kozlowski [2013] SASCFC 112; Hamilton v Roche & Anor [2022] SASC 103; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors [2020] SASC 161; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; Columbus v Efstathis & Ors [2019] SASC 149, considered.
ILLMAN v STERREY & ORS
[2023] SASC 50
This is an application for provision made pursuant to the Inheritance (Family Provision) Act 1972. The second to fifth respondents have applied for summary judgment. They assert that there is no reasonable basis for the claim. The respondents are entitled to a summary dismissal of the action.
Background matters
This matter involves the estate of the late Lisa-Jane Holland (the deceased) who died on 11 May 2021. The deceased left no spouse or children. She left a will made on 7 May 2021. A grant of probate was made by the Court on 12 November 2021.
The executor has filed an affidavit.[1] The statement of assets and liabilities disclosed a net estate of slightly less than $2,000,000. By the time of the argument the parties believed the value of the estate to be more like $2,600,000.
[1] FDN 12.
By her will the deceased made a number of specific bequests. The majority of the estate falls into residue which is shared between the deceased’s cousin and two of her friends.
The applicant is the brother of the deceased. He seeks an order that provision be made for him. He filed an affidavit setting out his financial position. The relevant contents of the affidavit[2] are as follows:
[2] FDN 5.
40. My current financial position is as follows:
40.1 I have an annual income of $200,000.00 plus superannuation.
40.2 Samantha is employed by Dr Jones and Partners as a Sonographer with an annual income of $92,500.00.
40.3 In addition to mine and Samantha’s employment incomes, we are also receiving rental income as follows:
40.3.1105/8 Jeays St Bowen Hills Qld - $375.00 per week ($19,500.00 per annum);
40.3.21/5 Santley Crescent, Kingswood NSW - $330.00 per week ($17,160.00 per annum); and
40.3.364/120 Driftway Drive, Pemulwuy NSW - $450.00 per week ($23,400.00 per annum).
41. School fees for my children are as follows:
41.1 Charlotte at Loreto – Under $20,000.00 per annum; and
41.2 Hamish at Prince Alfred College – Over $20,000.00 per annum.
42.In addition to school fees, my monthly expenses total around $22,500.00 a month for expenses like bills, rates, registration and general living expenses.
43.The joint matrimonial asset and liability position of myself and Samantha is as follows (Chris to provide update of financial position):
Assets
Liabilities
Citibank Mortgage Offset Account
$395,898.00
NAB Credit Card
$9,050.61
NAB Savings Account
$7,313.00
Main Residence – 25 Wycombe Road, Aldgate
$1,100,000.00
Mortgage
$459,667.00
Investment Property – 105/8 Jeays St Bowen Hills Qld
$260,000.00
Mortgage
$318,000.00
Investment Property – 1/5 Santley Crescent, Kingswood NSW
$400,000.00
Mortgage
$179,000.00
Investment Property – 64/120 Driftway Drive, Pemulwuy NSW
$590,000.00
Mortgage
$351,000.00
Share Portfolio
$32,888.19
Furniture and Effects
$25,000.00
Prepd Hydration Employee Option Plan (500,00 options per annum)
$13,750.00
Point Data (IPData Holdings PTY/LTD) Series A Convertible Notes
$35,000.00
Point Data (IPData Holdings PTY/LTD) Ordinary shares
$25,000.00
Tic Toc Online Pty Ltd 194 ordinary shares
$24,946.46
Superannuation entitlements of C Illman
$466,533.00
Superannuation entitlements of S Illman
$257,335.00
Total Assets
$2,533,663.65
Total Liabilities
$1,316,717.61
I note that in 2022 the 90th percentile for income earners was approximately $142,000. That means that 90% of wage and salary earners receive less than that amount annually. The salary of the applicant is very much above average.
Simply stated, the applicant enjoys a high salary and owns his own home albeit with a mortgage. He owns three investment properties which produce income, has $400,000 in the bank and has nearly half a million dollars in his superannuation account.
The statutory provision
The entitlement to make a claim is entirely statutory. The legislation originally had as its focus further provision for spouses and children.[3]
[3] Testator’s Family Maintenance Act 1918.
The present Act is broader than the original Act and allows for siblings to claim. The relevant provision is:
6—Persons entitled to claim under this Act
The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act:
(a) the spouse of the deceased person;
(b) a person who has been divorced from the deceased person;
(ba) the domestic partner of the deceased person;
(c) a child of the deceased person;
(g) a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
(h) a child of the child of the deceased person;
(i) a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
(j) a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.
The applicant’s claim is brought pursuant to s 6(j). Unlike a spouse or child, a sibling needs an additional factor to be entitled to bring a claim. That is, that he cared for or contributed to the maintenance of the deceased during her lifetime.
The applicant addresses that in his affidavit. He deposes to the follows:
51.I provided the following care and support to Lisa during her lifetime:
51.1 Between 1996 and 1998 Lisa and myself both lived in Melbourne. Lisa was married at that time to Michael. On almost every weekend, I visited Lisa and Michael at their home in Brighton for lunch or dinner. On these occasions I often brought dinner for all three of us to share. On other occasions, Lisa and I joined each other for dinner at a restaurant and I regularly paid for these dinners as my treat.
51.2 From the time when Lisa moved back to Adelaide in mid-2014 to when our relationship broke down, I regularly attended the Lower Mitcham property with Samantha and our children and we would have weekly dinners and we would alternate supplying the food and I would always supply the wine.
51.3 When Lisa relocated to Adelaide I provided her with assistance to move her life here and did things like pick her up from the airport, transport her to her house with her effects and help her settle back into living in Adelaide.
51.4 I often also attended to the following at the Lower Mitcham property to assist Lisa until she cut off contact with me:
51.4.1I performed regular maintenance works for Lisa, including cutting lawns, moving furniture, weeding and watering plants. I also helped Lisa regularly with DIY-type tasks like fixing electrical items (TVs and computers), cleaning gutters, packing and unpacking items in the roof cavity and changing light globes, other general maintenance like patching and painting and ensuring the house was secure and safe. This would also require me to purchase materials and items. I never sought reimbursement.
51.4.2Overall, I provided assistance to Lisa that would stereotypically be provided by a partner. As Lisa was unmarried I would provide this assistance to her that would usually be provided by a partner.
51.4.3I often purchased takeaway food for lunches and dinners for Betty and Lisa as well as purchase wine for them to drink with their meals.
52.After Betty passed away in 2015 and up until August 2018 when Brian passed away and Lisa cut off contact with me, I regularly brought by children to the Lower Mitcham property to visit Lisa as she seemed lonely and very much enjoyed spending time with them. On such occasions, I brought food for Lisa and the children, and I also brought wine for Lisa to enjoy with dinner or to save for drinking at her leisure at a later date. Lisa had a close bond with my children and would regularly pick them up from school and enjoy time with them.
53.During the period of 2015 to around August 2018, I also assisted Lisa to perform general maintenance tasks at the Lower Mitcham property including but not limited to those tasks referred to at 51.4.1 above.
If the applicant is able to satisfy the provisions of s 6(j) there is still an additional jurisdictional matter to be dealt with. If the applicant is an eligible applicant, then the following section must also be satisfied:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1) Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
The applicant in this matter, therefore, has two jurisdictional issues to satisfy. The first is that he is an eligible claimant and the second is that he has been left without adequate provision for his proper maintenance, education or advancement in life.
The approach to claims
There is now more than 100 years of authority in relation to family provisions matters. The principles to be applied in determining a claim are well‑established and beyond any reasonable dispute. They may be stated as follows:
1.The statute requires the Court to carry out a two-staged process. The first stage requires a determination of whether the applicant has been left without adequate provision. If that is decided in the affirmative, the Court is then required to determine what would be an appropriate provision.[4]
2.The legislation is remedial in character and is to be construed to give the most complete remedy which the phraseology will permit.[5]
3.The words “adequate” and “proper” are relative. The word “proper” connotes something different from the word “adequate”. It connotes an ethical position as to what allowance should be made. Adequate provision for proper maintenance is not limited to providing what is sufficient for basic subsistence.[6]
4.The time for considering whether the applicant has been left without adequate provision is the date of the death of the testator.[7]
5.Consideration of moral claims and moral duty are useful as a guide to the meaning of the statute and they connect the general value-laden language of the statute to community standards which give it practical meaning.[8]
6.The provision which the Court may properly make is that which a just and wise testator would have thought it his or her moral duty to make had he or she been fully aware of all the relevant circumstances.[9]
[4] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208.
[5] Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1 at 9.
[6] Bowyer v Wood (2007) 99 SASR 190 at 201.
[7] Coates v National Trustees Executors and Agency Company Limited & Anor (1956) 95 CLR 494.
[8] Vigolo v Bostin & Ors (2005) 221 CLR 191 at 204.
[9] Re Allen (deceased) [1922] NZLR 218 at 220.
At first blush it might be thought that s 7(1) of the Act is setting out an economic test by which it is determined whether an applicant has adequate provision for her proper maintenance, education or advancement in life. However, ultimately it was the moral or ethical approach that has been accepted as the correct approach. That approach arises from the use of the word “proper” in the statute. In Bosch v Perpetual Trustee Co Ltd[10] the Privy Council made clear that an economic approach to the interpretation of the section was not the correct approach. It found that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of a case is necessarily a judgment as to what maintenance the applicant ought to have in the circumstances and not what he or she needs.[11]
[10] [1938] AC 463.
[11] [1938] AC 463 at 478.
The moral approach was approved by the High Court in Worladge & Anor v Doddridge & Ors[12] where Kitto J said: [13]
What is proper is to be tested by reference to the provision which in all the circumstances of a case satisfies but does not exceed the requirements of moral justice in regard to those particular purposes.
The purposes, of course, were provision for the proper maintenance, education and advancement in life.
[12] (1957) 97 CLR 1.
[13] (1957) 97 CLR 1 at 18.
As mentioned, there is a two-stage process. The first stage is the conventional jurisdictional question. That is, has the Court’s jurisdiction to make an award of provision been enlivened. In Singer v Berghouse (No 2),[14] in the decision of Mason CJ, Deane J and McHugh J, their Honour’s said:[15]
Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of the value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
[footnote omitted]
[14] (1994) 181 CLR 201.
[15] (1994) 181 CLR 201 at 210.
In Tiburzi v Butler[16] in the principal judgment Doyle J noted:[17]
There is no doubt that the second stage of the process of determining an application under s 7 of the Act, being an exercise of judicial discretion, is subject to the principles concerning appellate review of a discretionary decision in House v The King. Further, it is now settled that an appeal against a trial judge’s determination of the first stage, or jurisdictional question, is also governed by these principles of appellate restraint. This is so despite the first stage sometimes being described as the application of the facts to a legal standard, and involving an evaluative judgement rather than a discretion.
[footnote omitted]
[16] [2017] SASCFC 89.
[17] [2017] SASCFC 89 at [87].
A similar explanation was provided in Kozlowski v Kozlowski[18] where Sulan J wrote the principal judgment. His Honour said:[19]
The first stage of the inquiry involves an objective assessment of all the circumstances in the case and determining whether, in fact, adequate provision has been made for the applicant. Where the first stage of the inquiry is answered in the affirmative, the second stage involves the exercise of judicial discretion in determining what provision ought to be made having regard to the factors identified by the legislation.
[18] [2013] SASCFC 112.
[19] [2013] SASCFC 112 at [38].
The issue before the Court on each of the two jurisdictional questions is one of fact. There is no exercise of discretion in answering either question. A discretion arises only in respect of the second step which is determining what an adequate provision will be if the two jurisdictional questions have been answered in the affirmative.
Summary judgment
The respondents seek summary judgment pursuant to the Rules. They say there is no reasonable basis for the applicant’s claim. The applicant says that the respondents have pursued an application pursuant to the wrong rule. He asserts that the application should have been commenced pursuant to UCR 143 which deals with summary dismissal rather than UCR 144 which deals with summary judgment. The applicant’s argument is based on the following:
Part 4—Summary judgment
144.1—Introduction
Unless the Court otherwise orders, this Part applies only to proceedings by way of claim (including a cross claim).
The starting point then is that UCR 144 does not apply to an action commenced by originating application. The UCR distinguishes between actions commenced by claim and those commenced by originating application. All claims for provision are commenced on originating application. The Court may by order allow a summary judgment application to be brought in a matter commenced by originating application.
The applicant referred to the decision of Auxiliary Justice Bochner in Hamilton v Roche & Anor.[20] In that matter there was an application pursuant to both UCR 143 and UCR 144. The proceeding in that matter was commenced by originating application. Her Honour noted that UCR 144 did not apply and proceeded to deal with the matter pursuant to UCR 143. The rules overlap to a significant extent and her Honour made orders pursuant to UCR 143. There appears to have been no application for the Court to order otherwise.
[20] [2022] SASC 103.
In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors[21] his Honour Justice Doyle considered the difference in the operation between UCR 143 and UCR 144:[22]
The difference in focus between the two has implications for the use that may be made of evidence in the determination of the applications. In the case of a strike out application, the Court’s consideration of the nature and adequacy of the claim, as disclosed in the pleading itself, may require recourse to a document or documents referred to in the pleading (such as a contract) in order to make sense of the pleading. It may also require consideration of some evidence so as to enable the Court to understand the pleaded allegations in their proper context, and hence expose their inadequacy or their frivolous, vexatious or abusive character. However, it will not ordinarily require any consideration of evidence going to the underlying merits of the applicant’s claim, let alone making findings on that evidence.
In the case of a dismissal application, on the other hand, there will often be greater scope for reliance upon evidence so as to make good the proposition that the applicant’s case itself is deficient in some respect, or is otherwise frivolous, vexatious or an abuse of process. That said, the nature of the exercise will nevertheless differ from that which is undertaken on a summary judgment application. While the difference is difficult to articulate, an application for summary dismissal is typically addressed more to the absence of any identifiable proper claim, whereas an application for summary judgment is typically addressed more to a particular defect in, or answer to, an otherwise properly articulated and disclosed case.
The difference between strike out and dismissal applications also relates to, and explains, the difference in the consequences to which they lead. The former leads to an order that the relevant pleading (or part thereof) be struck out. However, as the conclusion justifying this order is one based upon a deficiency in the pleading, and not necessarily the case itself, the applicant is usually given an opportunity to replead. The latter, on the other hand, because it is predicated upon a defect in the applicant’s case (rather than merely the pleaded articulation of it), leads to an order that the action or proceeding itself be dismissed. Whilst such an order brings the relevant action or proceeding to an end, it does not ordinarily give rise to res judicata or otherwise prevent a fresh claim being brought in appropriate circumstances.
While I have attempted to summarise what I see as the key features of, and differences between, summary judgment, summary dismissal and strike out applications, I accept that in practice the distinctions are often difficult to draw and observe, and there is, quite appropriately, scope for overlap and flexibility in their operation.
[footnotes omitted]
[21] [2020] SASC 161.
[22] [2020] SASC 161 at [67]-[70].
The position advanced by the applicant is not particularly attractive. It simply has the effect of putting the argument off for another day and requiring the respondents to either commence a separate application pursuant to UCR 143 or seek to amend the present application. Such an approach is not desirable and should be avoided if possible. I accept there will no doubt be occasion on which the Rules mean that such an approach is necessary. I do not believe this is such a case.
As a first step, I note UCR 1.5 which is in the following terms:
1.5—Object
The object of these Rules is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these Rules.
In dealing with the Rules, the Court should, to the maximum extent possible, ensure the object of the Rules are met. UCR 144.1 provides the Court with a power to order otherwise. The respondents ask the Court to do so.
I am satisfied it is appropriate to order otherwise and permit the respondents to press the application for summary judgment. The fact that there is an overlap with the two rules means it is not a large step to order otherwise. It is also relevant that the questions to be dealt with are ones of fact. Summary judgment is appropriate when dealing with factual determinations. The applicant can point to no prejudice.
The test for summary judgment is as follows:
144.2—Summary judgment
(1)The Court may, on application by a party, give summary judgment in favour of an applicant—
(a) on a claim if there is no reasonable basis for defending the claim;
(b) on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c) on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a) on a claim if there is no reasonable basis for prosecuting the claim;
(b) on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c) on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
(3)An application for summary judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1.
This is an application by a respondent seeking summary judgment in respect of an applicant’s claim. The claim may be dismissed if there is no reasonable basis for its prosecution.
The operation of the present rule was considered by Doyle J in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd. His Honour noted:[23]
By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a ‘mini trial’ of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
[footnotes omitted]
[23] [2020] SASC 161 at [59]-[60].
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[24] Rares J was considering the operation of the summary judgment provision found in the Federal Court of Australia Act 1976. His Honour noted:[25]
GE Capital also argued that s 31A required the Court to dismiss a claim or defence based on a predictive assessment of its prospects, even though it may be possible that had the matter gone to trial it would have succeeded. I am of opinion that this is not how the section operates. It is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. The purpose of the enactment is to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one. If there is a reasonable danger that a claim or defence could be dismissed under s 31A, which could succeed at a trial, the provision would create miscarriages of justice. It is a key feature of the judicial power under Ch III of the Constitution that the Court be in a position to, and in fact does, quell a controversy. The exercise of the judicial power to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success would defeat, not advance, the ends of justice.
[24] [2006] FCA 1352.
[25] [2006] FCA 1352 at [47].
The test to be applied is no reasonable basis. That is different to bound to fail. The question is still one of whether there is a sufficient foundation in the claim that is advanced to make it appropriate to allow it to proceed to trial. All cases note that caution is required in exercising the power to award summary judgment.
Consideration
The first question is whether the applicant is an eligible claimant. Without more, a sibling is not an eligible claimant. The additional requirement of having cared for or contributed to the maintenance of the deceased person must be established. I take what is said by the applicant in his affidavit at its highest.
I am not satisfied that the applicant has established that he cared for or contributed to the maintenance of the deceased in the relevant sense. What the section requires is something beyond conduct that you would ordinarily expect in the relationship between two caring siblings. If that was not so, the additional words in the subsection would not be necessary.
The matters the applicant deposes to in paragraph 51 of his affidavit do not go beyond conduct that would be expected between siblings. The affidavit details such things as sharing meals, collecting her from the airport and visiting with his children. There is also some discussion of mowing lawns and the like. That is not providing maintenance of the type referred to in the legislation. There is no suggestion of financial support. The applicant is not an eligible applicant.
Even if the applicant was an eligible applicant, that is only the first step in the claim. He would need to satisfy the Court that, by reason of the testamentary dispositions of his sister, he has been left without adequate provision for his proper maintenance, education and advancement in life.
As mentioned above, the correct approach is what would a wise and just testator have thought it her moral duty to make if she had been aware of all of the circumstances. Did the applicant’s sister have a moral duty to make provision for her brother? It is relatively straightforward to identify the moral duty owed to a spouse or a child. Once the relationship is more remote than that, the position becomes much less clear.
In Columbus v Efstathis & Ors[26] Stanley J was dealing with the position as between grandparent and grandchild. His Honour said:[27]
In accordance with Bowditch, as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition. That obligation rests on the parent of the child. Nor is a grandchild normally regarded as a natural object of the deceased’s testamentary recognition. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. While a moral obligation may be created in a particular case by reason of the care and affection provided by a grandchild to her grandparent, there is no evidence of that in this case.
[26] [2019] SASC 149.
[27] [2019] SASC 149 at [40].
I regard this matter as similar. The mere fact of a sibling relationship does not establish an obligation to provide for that sibling. It is difficult to see why the deceased would have thought it necessary to make provision for her brother. In coming to that assessment, she is taken to have been aware of all of the relevant circumstances. It is not conceivable that she would have considered it necessary, being aware of her brother’s very comfortable financial position, to make provision for him.
The legislation is remedial in nature. That said, it is not designed or intended for a matter such as this. The applicant has no need whatsoever for further provision and there was no failing by his sister in failing to make provision for him. The applicant has failed to establish that the Court has jurisdiction to award him further provision.
There is one other issue that I should mention. In his affidavit the applicant referred to discussions with his mother in relation to real property at Lower Mitcham. This was the property owned by the deceased and forms a significant part of her estate. The property was previously owned by her mother who passed away in 2015. In her will she left the Lower Mitcham property to the deceased, her daughter.
The applicant deposes to the fact that in 2014 he had discussions with his mother about the Lower Mitcham property and that he and his mother had an understanding that if his sister died, the property should be gifted by the deceased to the applicant’s children.
The affidavit does not say that he ever had any such discussion with his sister or that she was aware of any such understanding. The argument was advanced that because of that understanding, there was a moral obligation on the deceased to gift the Lower Mitcham property back to the applicant’s children. I do not accept that proposition. The first thing to say is that if there was any binding agreement about dealing with the property, the applicant should enforce that agreement. If not, I do not think it has any effect on the moral obligation of the deceased.
In any event, there are inherent inconsistencies in the affidavit. The applicant’s father died three years after his mother. The father left a greater proportion of his estate to the deceased. As a result, the applicant commenced family provision proceedings in relation to his father’s estate. He deposes to having done so because his sister received the Lower Mitcham property from her mother. If there was an understanding that the Lower Mitcham property was to come back to his children, then there was no need to bring the family provision proceedings in relation to his father’s estate. To do so would be double dipping. I have disregarded the issue.
The respondents are entitled to summary judgment. I will hear the parties as to the form of the order.
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