SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SCOTT & ANOR v SCOTT & ANOR
[2021] SASC 96
Judgment of Judge Dart a Master of the Supreme Court
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - PRINCIPLES OF EXERCISE OF DISCRETION
Applicants are children of the deceased - suffer from significant disability - no provision in the will of their mother - second applicant passed away after trial - consequences on his claim - first applicant entitled to substantial provision - estate of the second applicant entitled to a debt based provision.
Held:
1. Both applications allowed.
2. First applicant to receive a provision of $300,000.
3. The estate of the second applicant to receive a provision of $15,500.
Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
In the Estate of Wardle (1979) 22 SASR 139, applied.
Singer v Berghouse (No 2) (1994) 181 CLR 201; Worladge & Anor v Doddridge & Ors (1957) 97 CLR 1; Bowyer v Wood (2007) 99 SASR 190; Coates v National Trustees Executors & Agency Company Limited & Anor (1956) 95 CLR 494; Vigolo v Bostin & Ors (2008) 221 CLR 191; Re Allen (deceased) [1922] NZLR 218; Re Greene’s Estate (1930) 25 Tas LR 15; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; White v Barron & Anor (1979) 144 CLR 431; Andrew v Andrew [2011] NSWSC 115; Pizimolas v Pizimolas [2010] SASCFC 34; In re Shannon (1935) 35 SR (NSW) 516, considered.
SCOTT & ANOR v SCOTT & ANOR
[2021] SASC 96
These reasons deal with two applications for provision out of the estate of Alice Barbara Scott (“the deceased”). It is appropriate to grant the applications. The trial of the action, by way of summary determination, was held on 10 March 2021. It had been listed for hearing in November 2020, but was delayed by the COVID-19 lockdown. Unfortunately, the second applicant passed away on 12 April 2021. The matter came on for further evidence and submissions, on 26 May 2021, dealing with the consequences of the death of the second applicant.
The will and the estate
Each of the applicants is a child of the deceased, as is the respondent, who is joined in two capacities. She is joined as the executor and also as the sole beneficiary of the residuary estate. In the latter capacity she is the second respondent. There is a further son of the deceased who is not an applicant in these proceedings. He supports, at least, the claim of his brother, the second applicant, and is his litigation guardian.
By her last will, made on 9 December 2005, the deceased left all of the residuary estate to the second respondent and appointed her as the sole executor. The gift was subject to her surviving her mother, which she did. There were additional clauses in the will which shared the residuary estate equally between the other three children in the…
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- AGLC
- Scott v Scott [2021] SASC 96
- Case
- [2021] SASC 96
- Decision Date
CaseChat Overview and Summary
The court determined that a claim under the Act is generally a straightforward matter involving a two-stage test. First, the court assesses whether it has jurisdiction, and if so, it proceeds to evaluate an appropriate provision. The court found that the second respondent’s focus on irrelevant matters did not contribute to the resolution of the applicants' claims. The court then proceeded to address the claim of the second applicant, considering the circumstances surrounding their passing and the subsequent change in the nature of their claim. The court referenced authorities, including In re Shannon and In the Estate of Wardle, to determine that the second applicant's estate should be reimbursed for the diminution caused by the need for self-maintenance or advancement after the death of the testator and before the applicant's own death.
The court concluded that the second applicant should be awarded $15,500, following the calculation provided by the litigation guardian. Given the disabilities, financial positions, and medical needs of both applicants, the court found it appropriate to award the same provision to each had the claims remained. However, due to the second applicant's passing, the court awarded $300,000 to the first applicant and $15,500 to the estate of the second applicant.
ORDERS:
1. Both applications allowed.
2. First applicant to receive a provision of $300,000.
3. The estate of the second applicant to receive a provision of $15,500.
Orders
Orders of the court
Held:
1. Both applications allowed.
2. First applicant to receive a provision of $300,000.
3. The estate of the second applicant to receive a provision of $15,500.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The position taken by the second respondent has not assisted the Court to resolve the matter. A claim under the Act is usually a relatively straightforward matter. The two-stage test is applied. If jurisdiction is found, then the assessment of an appropriate provision is undertaken. The focus of the second respondent on extraneous matters did not progress the consideration of any issues relevant to resolving the claims of the applicants. Consideration I propose to deal with the claim of the second applicant first. His passing shortly after the conclusion of the trial changes the nature of the claim that he had made. The Court is required by the Act to make an assessment of whether, by reason of the testamentary disposition, a claimant is left without adequate provision for his proper maintenance, education or advancement in life. Upon the death of a claimant, those matters no longer require consideration. In this State, and in other states and countries, similar circumstances have arisen from time to time. A case often referred to is In re Shannon[16] where Long Innes CJ (Eq) allowed a small provision in relation to debt incurred between the death of the testator and the death of the applicant. [16] (1935) 35 SR (NSW) 516. One local case is In the Estate of Wardle[17] in which Zelling J had to consider a similar circumstance. His Honour surveyed such authorities as there were and concluded:[18]In my opinion, however, the solution proposed by Long Innes C.J. in Shannon’s case is correct. The applicant therefore was entitled to have the estate which she represents reimbursed by the amount by which that estate was diminished by the deceased having to maintain or advance herself after the date of the death of her husband and before her own death in so far as that maintenance or advancement ought to have been discharged by the deceased husband if he were alive and so far as it was capable of remedy by an order made under the provisions of this Act during the lifetime of the original applicant. [footnotes omitted][17] (1979) 22 SASR 139.[18] In the Estate of Wardle (1979) 22 SASR 139 at 144. The parties, who attended at Court on 26 May 2021, to make further submissions accept that the authority of Wardle should be followed. What amount might be awarded, as Zelling J mentioned in Wardle, is impossible to calculate with mathematical precision. His Honour did the best he could and came up with a figure. In my view, that is all I can do. An affidavit was filed by David Scott,[19] the litigation guardian of the second applicant. He undertook a calculation of what might be regarded as the diminution of the estate of the second applicant from the date of the death of his mother until his own death. The calculation came out at $15,500. It is appropriate to award the second applicant that amount.[19] Filed 25 May 2021, FDN94. When one looks at the respective disabilities of the first and second applicants, their financial positions and their medical needs, it would have been appropriate to award each the same provision. Had the two full claims remained I would have awarded each applicant $240,000.