Morse v Morse; Morse v Morse - [2003] TASSC 103

[2003] TASSC 103

CITATION: Morse v Morse; Morse v Morse [2003] TASSC 103

PARTIES: MORSE, Gregory Peter
v

MORSE, Colin Walter
MORSE, David Neil
v
MORSE, Colin Walter

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M8/1999

M10/1999

DELIVERED ON:  14 October 2003
DELIVERED AT:  Hobart
HEARING DATES:  1 – 3 July 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Succession - Family provision and maintenance - Failure by testator to make sufficient provision for applicant - Duty of testator - Duty to children - Adult son.

Testators Family Maintenance Act 1912 (Tas), s3.
McCosker v McCosker (1957) 97 CLR 566; O'Connor v Tasmanian Trustees B47/1995; Langford v Cleary (No 2) (1998) 8 Tas R 52, followed.

Aust Dig Succession [308]

REPRESENTATION:

Counsel:
      Applicant (Gregory Peter Morse):     J L Dewar
      Applicant (David Neil Morse):              J L Dewar
      Respondent:  K E Read
Solicitors:
      Applicant (Gregory Peter Morse):     Doolan & Brothers
      Applicant (David Neil Morse):              Crisp Hudson & Mann as agents for Doolan & Brothers
      Respondent:  FitzGerald & Brown

Judgment Number: [2003] TASSC 103
Number of Paragraphs: 30

Serial No 103/2003
File Nos M8/1999
M10/1999

PETER GREGORY MORSE v COLIN WALTER MORSE
DAVID NEIL MORSE v COLIN WALTER MORSE

REASONS FOR JUDGMENT SLICER J

14 October 2003

The applicants, who are the adult sons of the testator, seek orders that:

"… adequate provisions be made out of the Estate of … neil walter morse".

The testator, who died on 10 March 1999, was survived by his wife Ruby Edna (born 20 June 1911) and five children, Roxie (28 November 1938), Claire (20 April 1943), Peter (24 April 1946), David (22 April 1954) and Colin (29 June 1955).

Neil Morse disposed of his estate by will dated 22 June 1994, appointing his youngest son, Colin, as sole executor and trustee. The terms of that will relevantly provide:

(1)A specific bequest of $2,500 to each of his sons, Peter and David.
(2)A specific bequest of $14,000 and household and personal effects to his wife, Ruby.
(3)The residue to his son, Colin, subject to a trust or condition that the bequest be:
"subject to the right of … Ruby … to occupy during her widowhood the homestead situate upon [his] farming property at Railton Road Latrobe … free of rent or any other charge whatsoever"

with the:
"Trustee keeping the … homestead in good and habitable repair and condition."

The testator made no provision for his daughters stating in his will that it was not his intention:
"to make provision for my daughters roxie … and claire … as I consider my said daughters are in a financially sound position."

Neither Roxie nor Claire have made claims against the estate.

Neil Morse had lived in the Latrobe/Kentish area for all of his life. His father had conducted a family butchery in Latrobe. The land which is the primary asset of the estate was used in conjunction with that business. That land and its use, actual or intended, has been a cause of…

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 Morse v Morse; Morse v Morse

Details

AGLC: Morse v Morse; Morse v Morse [2003] TASSC 103
Case: [2003] TASSC 103
Decision Date: 14 October 2003

CaseChat Overview and Summary

The applicants, Gregory Peter Morse and David Neil Morse, are the adult sons of the deceased, Colin Walter Morse, who died on 10 March 1999. The applicants seek orders that adequate provision be made for them out of the estate of Colin Morse. The testator had made a will dated 22 June 1994, bequeathing specific amounts and assets to his wife, Ruby, and his son, Colin, subject to conditions. The applicants argue that the enhanced value of the estate provides a basis for its fair division. The respondent contends that environmental legislation precludes the development of the land in the manner suggested by the applicants. The legal issues before the court were whether the testator had made adequate provision for the applicants and whether the applicants had established special need or circumstances justifying intervention by the court under the Testators Family Maintenance Act 1912. The court held that the applicants had not satisfied the requisite degree of proof to establish that the value of the estate would be enhanced by further development of the land. The court also held that the applicants had not shown special need or circumstances justifying intervention by the court under the Act. The court found that the testator's intention was to make provision for his wife during her lifetime, to make no provision for his daughters, to bequeath the property to his son, Colin, and that Colin was the preferred male heir. The court held that the applicants had not established entitlement under the legislation and dismissed their applications.

Orders