Lock v Tower Trust Limited & Ors No. Scciv-02-1360 - [2004] SASC 96

LOCK v TOWER TRUST LIMITED & ORS
[2004] SASC 96
Appeal from a Master

VANSTONE J: This is an appeal from the decision of a Master made in proceedings taken pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”). It comes before me via s 50(2) of the Supreme Court Act 1935 and Supreme Court Rule 106.05(2)(c), the parties having consented to it being dealt with by a single judge.
The testator died on 29 May 2002. He was 87 years of age. He left an estate valued after expenses at just under $200,000, comprising a house property worth about $133,000, cash of about $60,000 and some items of personalty. All the beneficiaries named in the will survived the testator. They were his daughter, whom I shall call “the plaintiff”, his son, whom I shall call “the appellant” and four grandchildren.
Under the terms of the will, which he made on 19 April 1999, the testator left his house property to his grandson Brenton (“the second defendant”), a motor car of very modest value to the plaintiff and the residue to be divided among his two children and the grandchildren other than the second defendant. That meant that the five beneficiaries sharing in the residue could have expected to receive about $10,000 each.
The plaintiff took proceedings pursuant to s 7 of the Act. Prior to the hearing of the matter she accepted an offer filed in court in settlement of her claim. That offer was in the sum of $40,000 together with the motor car.
The appellant counter-claimed against the estate and that claim was heard before the Master on 7 April 2003. The terms of the settlement reached with the plaintiff were made known to the Master. His Honour heard some short evidence from the appellant, but essentially the matter was determined on the affidavits. The grandchildren other than the second defendant did not wish to be heard. The Master decided that an order in favour of the appellant should be made and fixed an amount of $40,000. He made orders designed to preserve for the grandchildren other than the second defendant the amount they were entitled to expect under the will, ensuring that the additional legacies to the plaintiff and appellant were borne first by their foregoing their share of the residue and, beyond that, by the second defendant.
The terms of s 7 of the Act are as follows:
7. (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…

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 Lock v Tower Trust Limited & Ors No. Scciv-02-1360

Details

AGLC: Lock v Tower Trust Limited & Ors No. Scciv-02-1360 [2004] SASC 96
Case: [2004] SASC 96
Decision Date: 6 April 2004

CaseChat Overview and Summary

This appeal concerns the interpretation and application of the Inheritance (Family Provision) Act 1972, specifically in relation to a testator's will. The deceased, who passed away at the age of 87, left an estate valued at nearly $200,000. The estate included a house, cash, and personal items. The primary beneficiaries were the deceased's daughter, the plaintiff, and son, the appellant, as well as four grandchildren. The deceased executed his will on April 19, 1999, which left his house to a grandson, Brenton, a modest motor car to the plaintiff, and the residue to be divided among the children and the other grandchildren. The plaintiff initiated proceedings under section 7 of the Act, and subsequently accepted a settlement offer of $40,000 plus the motor car. The appellant contested the estate, arguing that he had not been provided with adequate provision for his proper maintenance. The Master determined that the appellant should receive an additional $40,000, but this amount would be offset by the appellant and the plaintiff foregoing their share of the residue, and any additional amount required would be borne by Brenton.

The central legal issue in this appeal was whether the Master erred in his exercise of discretion in determining the extent of the additional provision to be awarded to the appellant. The appellant's counsel argued that the Master had limited the additional provision to the appellant to the extent that it did not interfere with the testator's wishes to benefit Brenton. The court considered whether the Master's approach in taking into account the testator's wishes was consistent with established authority and whether the Master's exercise of discretion should be overturned. The court found that the Master's approach was consistent with established authority and that the order made in favour of the appellant was well within the range of discretion available to the Master.

In conclusion, the court held that the appeal must be dismissed. The court found that no error had been made in the Master's exercise of discretion and that the order made in favour of the appellant was appropriate. The court emphasised that the testator's wishes must only be varied to the extent necessary and that the court is not permitted to rewrite the testator's will in accordance with its own ideas of equity. The court further noted that in cases where discretionary orders are made pursuant to legislation of this nature and where no error is shown, courts will only disturb an award in a "strong and cogent" case.

Orders