Pincius v Wood - [1998] TASSC 46

46/1998

PARTIES:  PINCIUS, Debbie Leone
  v
  WOOD, Judith Ann
  PUBLIC TRUSTEE

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M281/1997
DELIVERED:  1 May 1998
HEARING DATE/S:  20 April 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

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

Singer v Berghouse (1994) 181 CLR 201, followed.
Bosch v Perpetual Trustee Co Ltd [1938] AC 463, applied.
Testators Family Maintenance Act 1912 (Tas), s3(1).
Aust Dig Succession [308]

REPRESENTATION:

Counsel:
             Applicant:  A L Valentine
             Respondent:  P Turner
Solicitors:
             Applicant:  Ware & Otlowski
             Respondent:  Public Trustee

Judgment category classification:
Court Computer Code:
Judgment ID Number:  46/1998
Number of pages:  5

Serial No 46/1998
File No M281/1997

DEBBIE LEONE PINCIUS v JUDITH ANN WOOD and PUBLIC TRUSTEE

REASONS FOR JUDGMENT COX CJ

1 May 1998

This is an application by a married daughter of the deceased testator for provision to be made, pursuant to the Testators Family Maintenance Act 1912 ("the Act"), s3.
By his will dated 8 May 1997, the deceased, Roderick Bryan Davis, cancelled all prior wills, appointed the Public Trustee his executor and trustee and left the entirety of his net estate to the first named respondent who is his niece. He died a little over three weeks later on 31 May 1997. In August 1995, he had made a will in favour of the applicant, making her his sole beneficiary with a gift over to those of her children who should survive him if his daughter predeceased him. On 28 May 1997, he revoked that will and left his whole estate to the Catholic Archbishop of Hobart for the time being for the use and benefit of St Joseph's parish, Macquarie Street, Hobart. The value of the estate is approximately $14,000 only.
The applicant is 37 years of age, her husband is a sheetmetal worker whose net income per annum is about $37,000 and they have a daughter and son aged, respectively, 12 and nearly 8 years. When the application was filed last year, the applicant was in receipt of an income of about $3,000 per annum as a school holiday programme co-ordinator, working for some eight weeks during school holidays. Since the beginning of this school year, that work is no longer open to her because funding is no longer available and she has no independent income. The couple own their own home, worth approximately $100,000 and it seems it is unencumbered. The two children are educated in private schools, the current fees amounting to $1,905 per annum in all. Household expenses tabulated by her amount to $20,332 per annum, but she has not shown such common items as the cost of clothing, including school uniforms, bus fares for the children, any car expenses, other than a loan repayment to Toyota Finance which, I infer, is for a family car (for they live at Old Beach) and household insurance. They…

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 Pincius v Wood

Details

AGLC: Pincius v Wood [1998] TASSC 46
Case: [1998] TASSC 46
Decision Date: 1 May 1998

CaseChat Overview and Summary

The case of Pincius v Wood involves an application by Debbie Leone Pincius, the daughter of the deceased Roderick Bryan Davis, seeking provision from his estate under the Testators Family Maintenance Act 1912. The deceased, who passed away in May 1997, left his entire estate to his niece, Judith Ann Wood, after revoking earlier wills that had named Pincius as the sole beneficiary. Pincius contends that she was left without adequate provision for her proper maintenance and support. The legal issues at hand include whether Pincius' exclusion from the will was justified and, if not, what provision should be made from the estate. The Court, in considering these issues, evaluated the relationship between Pincius and her father, her financial situation, and the reasons behind the deceased's decision to exclude her from his will. The Court found that although Pincius' father had reasons to disapprove of her, these did not constitute legitimate grounds for excluding her from his will. Consequently, the Court exercised its discretion under the Act to order that Pincius and the respondent, Judith Ann Wood, share the estate equally.

The Supreme Court of Tasmania, in its judgment, thoroughly examined the circumstances surrounding the deceased's decision to exclude Pincius from his will. The Court acknowledged the father-daughter relationship, which, despite a period of estrangement, was restored and maintained until shortly before his death. Pincius' financial situation was also considered, noting her dependence on her husband's income and the future costs of educating their children. The Court also scrutinised the reasons provided by the deceased for excluding Pincius, concluding that these reasons were not sufficiently justified to warrant her exclusion from the will. By applying the principles set out in Singer v Berghouse and Bosch v Perpetual Trustee Co Ltd, the Court determined that Pincius' exclusion from the will resulted in her being left without adequate provision. The Court's discretion under the Act led to the decision that the estate should be shared equally between Pincius and Judith Ann Wood.

Orders