Jones v Public Trustee as Executor of Estate of Mavis Pauline Jones and
[2025] TASSC 1
•24 January 2025
[2025] TASSC 1
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Jones v Public Trustee as Executor of Estate of Mavis Pauline Jones and Jones [2025] TASSC 1 |
| PARTIES: | JONES, Michael John |
| v | |
| PUBLIC TRUSTEE As Executor of | |
| Estate of Mavis Pauline Jones | |
| and | |
| JONES, Shane Desmond | |
| FILE NO: | 2709/2022 |
| DELIVERED ON: | 24 January 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 September 2024 |
| JUDGMENT OF: | Daly AsJ |
| CATCHWORDS: |
Succession – Family provision and maintenance – Criteria for determining application – Principles upon which relief granted – Application of children – Family provision claim made by adult son – Consequences of applicant's failure to discharge his obligation to disclose to the Court as fully and as frankly as possible all details of his and his wife's financial circumstances.
Aust Dig Succession [1427]
Testator's Family Maintenance Act 1912 s 3(1)
REPRESENTATION:
Counsel:
Applicant: T Cox SC Interested Party A Cordova
Solicitors:
Applicant: Tremayne Fay Rheinberger Interested Party Butler McIntyre Butler
| Judgment Number: | [2025] TASSC 1 |
| Number of paragraphs: | 28 |
MICHAEL JOHN JONES v PUBLIC TRUSTEE AS EXECUTOR
OF ESTATE OF MAVIS PAULINE JONES and
SHANE DESMOND JONES
| REASONS FOR JUDGMENT | DALY AsJ 24 January 2025 |
1 These are my reasons for granting an application by Michael Jones (the applicant) under the Testator's Family Maintenance Act 1912, s 3 (the Act), for provision from the estate of his late mother Mavis Pauline Jones (the testatrix). The testatrix died in Hobart on 12 May 2022 (the testatrix), aged 82. By will executed on 14 January 2000, the testatrix left the residue of her estate to her son Shane Jones who, without any disrespect intended, I will refer to as Shane in order to distinguish him from the applicant. She left nothing to the applicant.
The Testator's Family Maintenance Act 1912 and some relevant principles
2 Under s 3 of the Act, the first question to be decided is whether the applicant was left without adequate provision for his proper maintenance and support (the jurisdictional question). Before the Court can exercise any jurisdiction to make provision for the applicant out of the deceased estate, this question must be decided in the applicant's favour. This is a question of fact to be determined at the date of the testatrix's death, and also having regard to reasonably foreseeable circumstances at that time.[1]
[1] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494.
3 If the applicant fails on the jurisdictional question, the second question is not reached. But if the applicant succeeds on that question, the second question involves the exercise of a discretion: what provision, if any, ought to be made for the applicant, out of the estate.[2]
[2] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208; White v Barron [1980] HCA 14, (1980) 144 CLR
4 In order to determine the jurisdictional question, the following principles are to be applied:[3]
[3] See more generally Karimalis v Kapodistrias [2022] TASSC 25 per Holt AsJ at [12].
(a)
The jurisdictional question is to be considered from the perspective of a wise and just testator: Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479.
(b)
The court assumes that the testatrix was aware of all the relevant circumstances, at the date of her death, including reasonably foreseeable eventualities: McKenzie v Topp [2004] VSC 90 at [15] per Nettle J, citing Bosch (above)[4].
(c)
The jurisdictional question requires the Court to consider all relevant circumstances and in particular:
[4] Also citing Re Allen, Allen v Manchester [1922] NZLR 218 per Salmond J at p 220; Hughes v National Trustees,
o the size and nature of the estate; o the applicant's financial position; o the totality of the relationship between the applicant and the testatrix; and o the relationship between the testatrix and other persons who have legitimate claims
upon her bounty,
see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210.
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(d) The jurisdictional question is strictly one of fact, even though it involves making value judgments: Singer v Berghouse (above) at 210. (e) On the jurisdictional question, the Court must connect the general, but value laden, language of the provision to prevailing community standards. The concepts of "moral claim" and "moral duty" are useful guides on that question: Vigolo v Bostin [2005] HCA 11, 221 CLR 191 per Gleeson CJ at [25]; Gerlach v Public Trustee [1997] TASSC 160; How v How [2015] TASSC 4. 5 If the Court finds that the applicant was left without adequate provision for his proper maintenance and support, the following principles apply to the second question:
(a)
"Adequate" provision is concerned with the quantum of the provision which should be made so that the provision is "proper": Bosch (above) at [476].
(b)
"Proper" maintenance and support means proper in all the circumstances of the case, including the standard of living enjoyed by the applicant and those having competing claims, the need for assistance and the extent of the testatrix's ability to meet the claims: McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 at 571-572.
(c)
"Maintenance" may imply mere continuity of a pre-existing state of affairs, and also relates to provision over and above mere sufficiency. "Support" may imply provision beyond bare need: Vigolo (above) at [115].
(d)
The enquiry whether the applicant has a relevant need of maintenance must not be too narrowly focused; Collins v McGain & Anor [2003] NSWCA 190 at [42].
(e)
Where the discretion is enlivened, its exercise will be influenced by similar considerations to those applicable to the jurisdictional question: Singer v Berghouse (above) at 210.
The jurisdictional question
6 I turn to consider the jurisdictional question in accordance with the principles set out above.
Size and nature of the estate
7 The gross value of the estate is $538,138.83, with a net value of $460,000, comprising mainly of the house and land at 2 Havelock Avenue in Goodwood, which is valued at $530,000. The executor (the Public Trustee) estimates the liabilities of the estate to be $63,035.77, strongly suggesting that the house will have to be sold to raise the money to meet those liabilities. The estate's principal creditor is the executor itself, with the Public Trustee's commission, charges and legal expenses estimated at $42,500. Difficult though it may be to reconcile with the testatrix's apparent testamentary intention, I must assume that the testatrix knew – or could reasonably have foreseen - that her executor's commission, charges and expenses might require the house to be sold to meet those liabilities: Litchfield v Smith [2010] VSC 466 at [26].[5]
The applicant's financial position
8 The applicant was aged 59 at the date of his mother's death and he was 62 at the date of the hearing. The applicant has been married for 38 years and has three adult children. He owns his home at 167 New Town Road as a joint tenant with his wife Sharon Jones. At the date of the testatrix's
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death, that property was valued at $750,000 which was encumbered with a mortgage securing the repayment of about $95,000 (on 6 March 2024 it was valued at $675,000 and at the hearing date there was $73,000 owing on the home loan). The applicant is presently working full time. He earns $65,000 per annum gross and says his net income is $60,000 per annum. He had approximately $8,000 in savings as at 10 March 2023. He has about $10,000 in his superannuation account. The applicant's weekly expenses have varied between about $950 and $1,050 per week from the time of this mother's death until the date of the hearing. The applicant says his weekly expenses slightly exceed his weekly income. The applicant's affidavit, sworn 10 March 2023, disclosed personal assets valued at $59,000. That affidavit failed to disclose some additional assets which were revealed during the course of the hearing: three rifles worth about $6,000 and a Hyundai motor vehicle of low value. His asset position at the date of the hearing is essentially the same as it was at the date of his mother's death.
9 The applicant's earning capacity has been adversely impacted by his health problems. Since about 2011, the applicant has suffered from (among other ailments) atrial fibrillation and acute coronary syndrome. During 2020 and 2021 the applicant was receiving outpatient hospital treatment for these problems. In about May 2022 – around the time of the testatrix's death - the applicant had ceased work due to his heart problems. He did not return to work until about August 2023. During that period of unemployment through illness, the applicant withdrew his entire superannuation balance of about $65,000 and lived off this money, his savings and also a Commonwealth benefit (both he and his wife each received $600 per fortnight). The applicant stated that he and his wife withdrew all their superannuation amounting to about $140,000 and spent it over the course of about a year.
10 By letter dated 25 May 2023, the applicant's general practitioner informed the applicant's solicitor that the applicant "should not ever return to heavy manual labour but ok to work 16-20 hours per week (per Dr Michael Nicholson's instructions) in light to medium work conditions". Dr Nicholson's instructions were not in evidence.
11 The applicant's wife, Mrs Sharon Jones, did not give evidence. The applicant adduced only minimal evidence about her financial position at the date of his mother's death other than to say, in summary, that she ceased to work in 2021 because of her own serious health problems and that she too withdrew the entire contents of her superannuation account in about 2022. The applicant said that his wife last worked on 3 January 2021. No corroborating evidence was adduced to support the assertions about Mrs Jones' superannuation account. The evidence about the applicant's wife's financial position was scant and it required corroboration. The Court was left with an incomplete picture of the financial position of the applicant and his family. It is not possible to draw any firm conclusions about the nature and source of Mrs Jones' financial position, her income and present superannuation balance (if any), whether she owns any assets, the nature of the activity evidenced by her bank statements showing a significant volume of gambling transactions and other expenditure, the frequent deposits into Mrs Jones' bank account by Hamish Jones and Sportsbet. The occasional deposits of Jobseeker payment into Mrs Jones' account were not explained.
12 The applicant's counsel submitted that the applicant has partially dependent children. I reject this submission because there is no evidence at all to support it. I assumed that this submission referred to one of the applicant's sons, Hamish Jones, a 31-year-old single man who is employed full- time as a credit officer for Aurora Energy. He earns an annual net salary of $60,000. He lives with the applicant and his wife but makes no contribution towards household expenses other than to "assist with groceries". He makes no contribution to the mortgage, or to energy or water bills. Hamish Jones said that while he owns a Ford XR6 Turbo, he drives his parents' Hyundai I30 (I prefer Hamish Jones's evidence on this point to the applicant's, who said that car is "off the road, and is basically sitting there unregistered now and not really going that well"). Sharon Jones' bank account statements disclose that Hamish Jones makes frequent deposits into - and receives frequent transfers from - her
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bank account, which appear to have something to do with online gambling via Sportsbet. The nature and rationale for these arrangements was not explained by anyone. The turnover in relation to these transactions amounted to over $23,000 within a period of about 12 months.
13 From the perspective of what the testatrix is taken to have known at the date of her death relevant to the question of the applicant's financial need, I am not satisfied that she ought to have foreseen that he and his wife would withdraw - let alone spend - all their superannuation as the applicant said they did. For the purpose of this point, I have accepted that Mrs Sharon Jones also withdrew and spent all her superannuation.
14 The applicant failed to discharge his obligation to disclose to the Court as fully and as frankly as possible all details of his – and his wife's - financial and material circumstances. He failed to adduce evidence explaining his wife's financial and material circumstances. That obligation extended to the circumstance of Hamish Jones living in the applicant's home "rent-free" while the applicant cannot cover his own weekly expenses. During the course of the hearing, the applicant said that information about Mrs Jones' superannuation was not provided because Shane Jones did not ask for it (see transcript p 30). The applicant's obligation also extended to providing an explanation to the Court of the apparently substantial gambling turnover concerning Mrs Jones and Hamish Jones. Neither the Court nor the interested party should be required to embark upon any search for information which the applicant himself had the obligation to provide: see Foye v Foye [2008] NSWSC 1305, at [14]-[15], cited in Barbuto v Barbuto [2019] NSWSC 1023 at [153]-[156] per Hallen J. Despite my observations on this point, the applicant's failures are not so significant as to totally undermine his credibility as a witness or to justify refusal of the application for that reason alone: the Act s 8. I have not drawn any adverse inferences against the applicant in relation to the gambling transactions except to the extent that they highlight his failure to discharge his obligation of full disclosure.
Totality of the relationship between the applicant and the testatrix
15 The evidence of the relationship between the applicant and the testatrix appears to have been without conflict or difficulty up until the last year or so of the testatrix's life. Strong evidence of that good relationship is to be found in his efforts in maintaining his mother's home. During the last 16-18 months of his mother's life, the applicant explained that he did not visit her because he "did not want her to see her sons fighting". There is no evidence that the applicant attempted to maintain his relationship with his mother at all during this period. It is open to conclude that it was possible for the applicant to maintain contact with his mother in some way that did not involve seeing her sons fighting. The applicant says that Shane did not tell him what nursing home his mother was in while the bathroom renovations were being done. Even so, there is no evidence that the applicant made any attempt at all to ask Shane about his mother's whereabouts.
The relationship between the testatrix and Shane Jones
16 At the date the testatrix executed her will, she effectively bequeathed the entirety of her estate to her son Shane, who had recently moved in with her on the basis (which I accept) that he would care for her for the rest of her life.
17 Shane Jones is the 57-year-old son of the testatrix. He was 54 at the date of her death. He receives a disability support pension due to type 2 diabetes, chronic heart disease and severe back issues due to a workplace accident. He also suffers from serious heart problems and in 2022 he was assessed as having a very high risk of a cardiac event.[6]
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[6] Judge's papers, p. 45, Annexure SJ-1 to the affidavit of Shane Jones sworn 7 December 2023 (however the annexure
18 I accept Shane Jones' evidence that in about 1998 or 1999 at age 32, the testatrix asked him to come and live with her, to help maintain her property and to care for her because she was starting to need assistance around the house. Also, Shane needed somewhere to live after his divorce. The testatrix made her will shortly afterwards, on 14 January 2000. These arrangements endured for the following 24 years during which Shane lived with the testatrix and provided her with social, emotional, domestic and medical support until her death on 12 May 2022. I accept that he performed substantial renovations and maintenance on the testatrix's home. As stated above, I do not overlook that the applicant also provided significant assistance in property maintenance. The testatrix and Shane were very close, and he provided her with wide-ranging care and support extending to all aspects of her life.
19 At the end of the testatrix's life, she had temporarily moved into a nursing home, while renovations were carried out at 2 Havelock Avenue in order to make the house safer for her.
20 I find that Shane Jones had a financial dependence on his mother which was a result of the long duration of the arrangement between him and his mother. This is a significant element to Shane Jones' strong competing claim on the estate.
The applicant was left without adequate provision for his proper maintenance and support
21 The issue for determination is whether, without provision from the estate, the applicant has been left without adequate provision for his proper maintenance and support. The obvious inference to be drawn from the testatrix's will dated 14 January 2000 is that when it was executed, because Shane was living with her and caring for her, that on her death he would have the full benefit of her only substantial asset and the resulting measure of financial and accommodation security that would afford. Those arrangements remained in place during the following 22 years until the testatrix's death on 12 May 2022.
22 When the testatrix made her will, the applicant was not in any financial need. He could support himself comfortably and was likely to be able to do so for the rest of his life. At the date of her death, the situation was different. At that date, a wise and just testatrix would have given close consideration to the fact that the applicant's health had worsened over the years and at that date had a significant impact on his present and future capacity to work and earn money. The applicant's wife's poor health at this time also should have raised reasonable concerns about her present and future capacity to financially contribute. Taking these matters into account, together with all of those considerations above, I am satisfied that the jurisdictional question should be decided in the applicant's favour. I am satisfied that at the date of the testatrix's death, the applicant was left without adequate provision for his proper maintenance and support.
The discretionary stage
23 I turn now to the second, discretionary, stage. The Court's primary duty is to give effect, as far as possible, to the deceased's testamentary directions, which may only be infringed to the extent necessary to fulfil her moral duty. In exercising the discretion, in addition to the matters considered above, I have had regard to the economic circumstances of both the deceased and the applicant, the size of the estate and the competing claim on the estate. The applicant does not need to demonstrate that his financial needs are greater than Shane's, despite Shane's competing claim being a significant consideration: Dean v Collins (No. 2) [2015] WASCA 151 at [26] (per Chaney J with whom Martin CJ and Buss JA agreed).
24 The applicant is the joint tenant of a home valued at over $675,000 with a mortgage of about $73,000. He has about $50,000 in other assets inclusive of superannuation. He is capable of working but is probably working more hours than he should, given the state of his health. He is presently
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earning $60,000. His health continues to decline. While the evidence was not particularly clear, it appears to be the case that the applicant had about $10,000 in superannuation at the date of his mother's death, which is accumulating at about $143.75 per week since he returned to work in August 2023.[7] I have mentioned above, the considerable difficulty in reaching a state of satisfaction about the wider financial circumstances of the applicant's family, which in turn causes difficulty in the assessment of the quantum.
[7] See Transcript p. 31 and the payslip at Annexure MJJ-2 to the applicant's affidavit affirmed 16 August 2024.25 Shane Jones' competing claim is strong. His working capacity is significantly limited. He has been in receipt of a disability support pension since 2003. He has about $67,000 in superannuation and about $5,500 in savings. He has no other assets of significant value. The Act is not directed at securing a fair outcome as between family members: Dal Pont & Mackie, Law of Succession at 15.14. The Act "does not licence the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the [applicant] has few resources". That is so even where a party with a competing claim such as the residuary beneficiary under the will is relatively well-off. MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 at [213] per Dodds-Streeton J. Shane Jones is not well-off, but the principle is apposite.
26 My assessment of all the circumstances relevant to the question of the proper maintenance and support for the applicant is that the sum of $100,000 amounts to adequate provision. An order will be made in those terms.
27 The order reflecting provision for the applicant operates and takes effect as a codicil to the testatrix's will: s 9(3). Paragraph 3 of the will should reflect that the trustee holds the whole of the estate on trust:
- to pay the debts, funeral and testamentary expenses and all duty payable on the testatrix's estate
(whether actual or notional);- to pay $100,000 to the applicant; - to distribute the residue of the estate to Shane Desmond Jones; 28 I ask that the parties attempt to agree orders which will give effect to the provision made. The orders should also give effect to the additional following matters. A certified copy of this order is to be made upon the probate of the will, and the grant of probate will need to be brought into Court for that purpose: s 9(2). I also invite the parties to agree what orders should dispose of the question of costs. If agreement to appropriate orders cannot be reached, each party has liberty to submit their draft orders and request a relisting.
431; Gerlach v Public Trustee unreported 153/1997 at 4.
Executor & Agency Co of A/asia Ltd (1979) 143 CLR 134 at 147-148.
(1979) 143 CLR 134 at 147-148.
sheet erroneously refers to the affidavit as that of Michael Jones).
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