Smythe v Smythe - [2010] SASC 319

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SMYTHE v SMYTHE & ORS
[2010] SASC 319
Judgment of Judge Lunn a Master of the Supreme Court
18 November 2010
SUCCESSION - FAMILY PROVISION AND MAINTENANCE
Claim under Inheritance (Family Provision) Act 1972 by 67 year-old son of deceased – small estate $227,804 – summary determination under 6R 312(12) and (12A) – plaintiff having health problems and progressive dementia, but no home of his own, superannuation entitlements or other significant assets – award of legacy of $75,000.

SMYTHE v SMYTHE & ORS
[2010] SASC 319
JUDGE LUNN:
Reasons on summary determination of plaintiff’s claim under the Inheritance (Family Provision) Act 1973 (“the Act”)
Family Tree

Olive Constance Smythe (“the deceased”) was born in 1914 and died on 18 April 2009. She was married to Stanford Smythe who died in 2001. There were three children of the marriage, being John Lewis Smythe (“John”), Judith Helen Keizer (“Judith”) and Peter Stanford Smythe, the plaintiff. John has two children who are the fourth and fifth defendants. Judith also had two children who are the second and third defendants. The plaintiff has two children being Fontella Hassing and Zita Pelling. All of the grandchildren of the deceased are now adults.
Background and History
The plaintiff was born on 22 January 1943 and is now 67 years of age. Between 1961 and 1964 he trained and qualified as a school teacher. In 1967 he married his wife (“Jenny”). Between about 1976 and 1979 there was a complete estrangement between the plaintiff and his parents and in that period he had no contact with them. After about 1979 the plaintiff had some limited contact with the deceased, but his wife had none. In the early 1980s he inherited a house from his step-grandmother and from its sale he received about $9,000.
On 21 November 1986 the deceased made a Will in which she left her estate equally between John and Judith, but if any of them predeceased her then that child’s children would receive their parent’s share of the estate. In the Will she gave reasons why she had excluded the plaintiff, which will be mentioned later.
On 8 December 2004, the deceased made a codicil to that Will that John’s children replaced him as the beneficiaries for a half share of the estate, but otherwise the deceased then confirmed the terms of the 1986 Will.
From 1997 until about 2007 the plaintiff lived and worked in Germany. During that time he made several trips back to Adelaide and on all but one such visit he saw the deceased.
The plaintiff’s father died in 2001. The plaintiff received nothing from his estate. In May 2002, the deceased’s home was sold and she went into the Ashman Grove Nursing Home, where she remained for the rest of her life.
In 2005 the plaintiff began to have problems with his memory and cognitive functioning. In that year he inherited $60,000 from the estate of his aunt, Betty Smythe. The deceased also…

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.

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Details

Case: [2010] SASC 319
Decision Date: 18 November 2010

CaseChat Overview and Summary

The case of Smythe v Smythe involves a claim by Peter Stanford Smythe (the plaintiff) under the Inheritance (Family Provision) Act 1972 for financial provision from the estate of his deceased mother, Olive Constance Smythe. The deceased left a small estate valued at $227,804. The plaintiff, who is 67 years old, has health issues, progressive dementia, and lacks a home, superannuation entitlements, or other significant assets. The court awarded a legacy of $75,000 to the plaintiff.

The court was required to determine whether the plaintiff was entitled to financial provision from the deceased's estate under the Act. The key legal issue was the plaintiff's need for financial support, considering his health issues, lack of assets, and the size of the estate. The nature of the relationship between the plaintiff and his deceased mother and other family members, while relevant, played a minor role in the court's decision.

In considering the plaintiff's need for financial support, the court took into account his health problems, progressive dementia, and lack of a home, superannuation entitlements, or other significant assets. The court found that the plaintiff's need for financial support was significant, and the small size of the estate did not preclude the court from making an award. The court awarded the plaintiff a legacy of $75,000 from the deceased's estate, which it found to be just and equitable under the Act.

The court ordered that the plaintiff be paid a legacy of $75,000 from the deceased's estate.

Orders

Orders of the court

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Background

Background to the litigation

Olive Constance Smythe (“the deceased”) was born in 1914 and died on 18 April 2009. She was married to Stanford Smythe who died in 2001. There were three children of the marriage, being John Lewis Smythe (“John”), Judith Helen Keizer (“Judith”) and Peter Stanford Smythe, the plaintiff. John has two children who are the fourth and fifth defendants. Judith also had two children who are the second and third defendants. The plaintiff has two children being Fontella Hassing and Zita Pelling. All of the grandchildren of the deceased are now adults.Background and History The plaintiff was born on 22 January 1943 and is now 67 years of age. Between 1961 and 1964 he trained and qualified as a school teacher. In 1967 he married his wife (“Jenny”). Between about 1976 and 1979 there was a complete estrangement between the plaintiff and his parents and in that period he had no contact with them. After about 1979 the plaintiff had some limited contact with the deceased, but his wife had none. In the early 1980s he inherited a house from his step-grandmother and from its sale he received about $9,000. On 21 November 1986 the deceased made a Will in which she left her estate equally between John and Judith, but if any of them predeceased her then that child’s children would receive their parent’s share of the estate. In the Will she gave reasons why she had excluded the plaintiff, which will be mentioned later. On 8 December 2004, the deceased made a codicil to that Will that John’s children replaced him as the beneficiaries for a half share of the estate, but otherwise the deceased then confirmed the terms of the 1986 Will. From 1997 until about 2007 the plaintiff lived and worked in Germany. During that time he made several trips back to Adelaide and on all but one such visit he saw the deceased. The plaintiff’s father died in 2001. The plaintiff received nothing from his estate. In May 2002, the deceased’s home was sold and she went into the Ashman Grove Nursing Home, where she remained for the rest of her life. In 2005 the plaintiff began to have problems with his memory and cognitive functioning. In that year he inherited $60,000 from the estate of his aunt, Betty Smythe. The deceased also received $60,000 from that estate which she gave to John and Judith. On 27 September 2008 Judith died. The second and third defendants as her children inherited her estate which was principally a house property. The deceased died on 18 April 2009. At about this time the plaintiff retired from his profession of school teaching. On 21 September 2009 probate was granted to John over the 1986 will as varied by the 2004 Codicil.These proceedings On 19 March 2010 the plaintiff instituted this action seeking provision from the deceased’s estate for himself under the Act. I have conducted a summary determination of the action pursuant to 6R 312(12) and (12A). The evidence on the summary determination was by affidavits. John and the second and third defendants were cross-examined on their affidavits but it is not necessary to make findings about their evidence. Much of the affidavit evidence went to the nature of the relationship between the plaintiff and his immediate family with the deceased and the other members of the family, and the extent of the plaintiff’s contact with the deceased after 1979. The major issue in this action is the plaintiff’s need for financial support. The nature and extent of the plaintiff’s relationship with the deceased, while relevant, does not have much role in the outcome and does not need to be dealt with to the extent set out in many of the affidavits.The deceased’s estate

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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