Parker v Australian Executor Trustees Limited

Case [2016] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

PARKER & ORS v AUSTRALIAN EXECUTOR TRUSTEES LIMITED

[2016] SASC 64

Judgment of The Honourable Justice Lovell

1 June 2016

SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN

Claim by five adult children of testator - majority of estate left to defendant for charitable purposes - no competing claims - whether children left without adequate provision - weight to be given to estrangement.

Held: Allowing the applications. All children have been left without adequate provision for their proper maintenance, education or advancement in life.

Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1; Brennan v Mansfield & Ors [2013] SASC 83; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; White v Barron (1980) 144 CLR 431; Andrew v Andrew (2012) 81 NSWLR 656; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; McCosker v McCosker (1957) 97 CLR 566; Goodman v Windeyer (1980) 144 CLR 490; Bowyer v Wood & Ors (2007) 99 SASR 190; Lloyd-Williams v Mayfield [2005] NSWCA 189; Taylor v Farrugia [2009] NSWSC 801; MacGregor v MacGregor [2003] WASC 169; Burke v Burke [2015] NSWCA 195; In re Allen (Deceased), Allen v Manchester & Anor [1922] NZLR 218; Grey v Harrison [1997] 2 VR 359, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED

"family provision", "proper", "adequate", "estrangement"

PARKER & ORS v AUSTRALIAN EXECUTOR TRUSTEES LIMITED
[2016] SASC 64

Civil

LOVELL J.

Overview

  1. On 28 January 2013 the testator (Alec Arnold Veit) died aged 83 years. He was survived by his five adult children who are the plaintiffs. The testator and his wife separated in 1976 and were divorced in 1980; he never remarried.

  2. By his will made on 30 March 2012, the testator left a farming property at Sherlock to his son, Alec and a gift of $100,000 to his daughter, Vicky. No provision was made for the testator’s other three children, Julie, David and Sandra. As of 21 January 2016, his net estate was valued at $1,692,250.17. A number of relatively small monetary gifts were left to some of the testator’s grandchildren, siblings, relatives and friends. These particular gifts are not contested. The residue of his estate was left to The Alec Veit Charitable Trust. The testator appointed the defendant, the Australian Executor Trustees Limited (“the AET”) as his executor and trustee. No challenge was made regarding testamentary capacity. All five children have made an application pursuant to section 7 of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”) seeking provision out of the estate. There are no competing claims.

    The will

  3. The testator gave the majority of his estate to his executor. He bequeathed some gifts, which appear in broad terms, in the following order in the will;

    1.   $100,000 to his…

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AGLC
Parker v Australian Executor Trustees Limited [2016] SASC 64
Case
[2016] SASC 64
Decision Date

CaseChat Overview and Summary

In Parker v Australian Executor Trustees Limited, the five adult children of the deceased, who had passed away leaving the majority of his estate to the defendant for charitable purposes, challenged the will on the grounds that it did not provide adequate and proper maintenance for them. The court was tasked with determining whether the children were left without adequate provision for their maintenance, needs, and education, as required by section 48 of the Succession Act 2006 (SA). This determination involved weighing the estrangement between the children and the testator, as well as their upbringing and relationship with him.

The central legal issue was the interpretation of "adequate and proper maintenance" under the Succession Act. The court examined the testator's relationship with his children, particularly focusing on whether estrangement and lack of affection and support during their upbringing justified a finding that they were not adequately provided for. The court also considered the financial circumstances of the children, their contributions to the estate, and the testator's overall intent as expressed in the will.

The court held that the testator's difficult and unloving nature, coupled with the estrangement from three of the children, warranted a finding that they were not provided for adequately. The court found that the children were deprived of emotional and financial support due to the testator's volatile and selfish behaviour, which influenced their adult lives and relationships. Consequently, the court granted the claims of the three children who had limited or no contact with the testator, finding that the will did not make adequate provision for their maintenance.

The court ordered that the estate be distributed in a manner that provided for the three children who were deemed to be left without adequate provision. This included setting aside a portion of the estate for their benefit, ensuring they received fair maintenance from the estate.

Orders

Orders of the court

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Background

Background to the litigation

These gifts are not contested. After the gifts are paid the distributable estate is $1,173,250.17.The familial background Growing up on the farm I intend to refer to the plaintiffs in this judgment by their first name. I intend no disrespect in adopting that course. It is necessary to consider the plaintiffs’ relationship with their father. The behaviour of the plaintiffs as adults has to be analysed against the background of the way they were treated as children by the testator. Much of the early history was not disputed. The plaintiffs had a difficult childhood. The testator owned and worked a farm at Sherlock near Karoonda in South Australia. All the children worked on the family farm. Some worked the farm well into their late teenage years and often without pay. His son Alec continued to work the farm during most of his adult years. The testator was a very demanding taskmaster. The testator was not a loving parent towards his children. The evidence established that he was a difficult man. He never showed his children or their mother any affection. His mood was volatile and he was often irritable and bad tempered. He would verbally or physically abuse them if tasks were not carried out correctly. The living conditions were not ideal and they often went without. As children they were poorly clothed and fed. Special occasions such as birthdays or Christmas were not celebrated. The testator was selfish with money. The allowance he gave their mother was barely enough to make ends meet. He believed providing a roof over their heads was sufficient.Separation of parents In 1976 the testator’s wife left him. It occurred while the testator and Alec were at a football game. David, the eldest son, received a phone call from his mother saying that she and his sister Sandra wanted to leave the farm. At the time David was living and working in Victoria. David went over to the farm and picked them up. He later called in on the way through to the football game and told Alec that “Mum and Sandra are leaving home”.[2] All three went to live with their auntie in Irymple, Victoria. [2] T 38.Estrangement of Sandra, David and Julie The issue of the estrangement of Sandra and David from the testator, and to some extent Julie, was raised during the course of the trial. Since 1976 Sandra and David maintained contact with the testator at family events. Sandra and David would speak to him at family events as would Julie. They did so without rancour or hostility. They still acknowledged the fact that he was their father. Despite this contact, the testator claimed he had “no contact with David and Sandra since [the] divorce in 1978.”[3] The circumstances of the marital separation may explain why he refused to provide for them in his will. To the testator “they left him”.[4] [3] Trial Book p 247; Exhibit P56 p 4.[4] T 247 line 28. Julie had some contact with him outside of family events. In 1976 Julie was living with her then husband (“the Bubners”) away from the family farm when her mother left the testator. She maintained contact with her father up until 1987 when she moved to Victoria with her husband. In the early 1980s, the Bubners leased some farming land off the testator. The lease was terminated after about three years. The testator claimed Julie still owed him some money in relation to the lease. Julie denied she owed this money. She felt the testator never approved of her husband. He told her the relationship would not last.[5] Since 1987 Julie had contact with the testator only at family gatherings. On 8 February 2012, when instructions were taken for the making of his will, the testator claimed that he had “no contact with daughter Julie for 25 years”.[6] He made no provision for Julie in his will.[5] Exhibit P31.[6] Trial Book p 247.Vicky and Alec

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

The testator was not a loving parent towards his children. The evidence established that he was a difficult man. He never showed his children or their mother any affection. His mood was volatile and he was often irritable and bad tempered. He would verbally or physically abuse them if tasks were not carried out correctly. The living conditions were not ideal and they often went without. As children they were poorly clothed and fed. Special occasions such as birthdays or Christmas were not celebrated. The testator was selfish with money. The allowance he gave their mother was barely enough to make ends meet. He believed providing a roof over their heads was sufficient.Separation of parents In 1976 the testator’s wife left him. It occurred while the testator and Alec were at a football game. David, the eldest son, received a phone call from his mother saying that she and his sister Sandra wanted to leave the farm. At the time David was living and working in Victoria. David went over to the farm and picked them up. He later called in on the way through to the football game and told Alec that “Mum and Sandra are leaving home”.[2] All three went to live with their auntie in Irymple, Victoria. [2] T 38.Estrangement of Sandra, David and Julie The issue of the estrangement of Sandra and David from the testator, and to some extent Julie, was raised during the course of the trial. Since 1976 Sandra and David maintained contact with the testator at family events. Sandra and David would speak to him at family events as would Julie. They did so without rancour or hostility. They still acknowledged the fact that he was their father. Despite this contact, the testator claimed he had “no contact with David and Sandra since [the] divorce in 1978.”[3] The circumstances of the marital separation may explain why he refused to provide for them in his will. To the testator “they left him”.[4] [3] Trial Book p 247; Exhibit P56 p 4.[4] T 247 line 28. Julie had some contact with him outside of family events. In 1976 Julie was living with her then husband (“the Bubners”) away from the family farm when her mother left the testator. She maintained contact with her father up until 1987 when she moved to Victoria with her husband. In the early 1980s, the Bubners leased some farming land off the testator. The lease was terminated after about three years. The testator claimed Julie still owed him some money in relation to the lease. Julie denied she owed this money. She felt the testator never approved of her husband. He told her the relationship would not last.[5] Since 1987 Julie had contact with the testator only at family gatherings. On 8 February 2012, when instructions were taken for the making of his will, the testator claimed that he had “no contact with daughter Julie for 25 years”.[6] He made no provision for Julie in his will.[5] Exhibit P31.[6] Trial Book p 247.Vicky and Alec There are no estrangement issues in relation to Vicky and Alec. Both kept in regular contact with the testator in particular Alec. Both were provided for in the will. Legal test