Palmer v Dolman

The case of *Palmer v Dolman* concerned appeals by the executor of an estate and by Fiona Dolman, the deceased's daughter, against orders made by a Master regarding provision from the deceased's estate. The deceased had made no provision in his will for his ex-wife, Mrs Dolman, or his daughter, Fiona Dolman. The dispute centred on whether these beneficiaries were entitled to a share of the estate, with the executor arguing against any provision and Mrs Dolman and Fiona Dolman seeking to establish their claims.

The court was required to determine two primary legal issues. Firstly, whether fraud could be established on the part of the deceased at the time of the property settlement with his first wife, Mrs Dolman, and if so, its relevance to the provision from his estate. Secondly, the court had to consider whether Fiona Dolman was entitled to provision from the estate, applying the two-stage approach outlined in *Singer v Berghouse*, which involves assessing the "jurisdictional question" by considering the "totality of the relationship" and the relevance of "moral duty" and "moral claims," even in the context of estrangement and a parent's lack of generosity in financial support.

Regarding the claim by Mrs Dolman, the court considered the evidence surrounding the property settlement and the deceased's subsequent mortgage over the family home. The Master had noted uncertainty regarding the exact date of a significant payment from the deceased to Mrs Dolman, and the deceased's use of a bank loan to partially meet this obligation. The court also addressed the standard of proof for inferring fraud in civil cases, clarifying that it requires circumstances raising a more probable inference in favour of the allegation, rather than excluding all reasonable hypotheses consistent with innocence as in criminal cases, citing *Bradshaw v McEwans Pty Ltd*. The court found that the deceased's actions in relation to the property settlement did not establish fraud.

In relation to Fiona Dolman's claim, the court applied the principles from *Singer v Berghouse* and *Gorton v Parks*. The court found that the deceased's statutory declaration, citing Fiona's lack of contact and interest in his welfare, did not fully reflect the "totality of the relationship." The court determined that Fiona Dolman had established a moral claim on the deceased's estate. Consequently, the executor's appeal was dismissed, and Mrs Dolman's claim for provision was also dismissed. However, Fiona Dolman's appeal was upheld, her claim was not dismissed, and she was awarded a lump sum payment of $655,000 from the estate. Costs orders were made in favour of Mrs Dolman and Fiona Dolman, to be paid out of the estate.