Swanson v Reis - [2018] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SWANSON & ANOR v REIS & ANOR
[2018] SASC 20
Judgment of Judge Bochner a Master of the Supreme Court
2 March 2018
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Application for further provision from the estate of late mother.
Held: claim dismissed.
Inheritance (Family Provision) Act 1972 s 7, referred to.
Parker v Australian Executor Trustees Limited [2016] SASC 64; Tiburzi v Butler [2017] SASCFC 89; Carter v Brine [2015] SASC 204; Singer v Berghouse (No 2) (1994) 181 CLR 201; Bowyer v Wood (2007) 99 SASR 190, considered.

SWANSON & ANOR v REIS & ANOR
[2018] SASC 20

The second plaintiff has made an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (the IFPA) for further provision from the estate of his late mother, Barbara Gesine Reis (the deceased), who died on 30 July 2016. When this action was first issued, the second plaintiff was joined as plaintiff by his sister, Angela Kim Swanson. However, shortly before the trial, Ms Swanson elected to discontinue her claim. As a result, I will refer to the second plaintiff throughout as “the plaintiff”.
Background
At her death, the deceased was a widow and was survived by her three children, Ms Swanson, the plaintiff and Andreas Peter Reis. She left a will dated 10 May 2016, in relation to which probate was granted on 21 November 2016. Probate was granted to Andreas Peter Reis. Andreas Peter Reis is named in this action in his capacity as executor as first defendant, and in his capacity as beneficiary as second defendant. Throughout I will refer to him as the defendant.
By her will, the deceased gave all of her furniture and personal effects to the defendant. The residue she divided into three equal parts, with two of those parts to go to the defendant and the remaining part to be divided equally between the plaintiff and Ms Swanson. In effect, the defendant is to receive two thirds of the estate and the plaintiff is to receive one sixth of the estate.
The net estate is estimated to be worth around $420,000. The residue (and main asset) of the estate is made up of a property situated at Flagstaff Hill, as well as a small amount of cash. The value of the property at Flagstaff Hill is estimated to be around $400,000. Thus, the plaintiff’s entitlement under the will amounts to around $66,666. I note that in submissions both plaintiff and defendant estimated the plaintiff’s entitlement to be around $70,000. This figure, however is based on the entirety of the net estate of $420,000, rather than simply the residue. Nothing turns on this. I further note that no formal valuation of the Flagstaff Hill property has occurred; the parties were agreed as to its approximate value.
The personal circumstances of the plaintiff
The plaintiff’s evidence…

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 Swanson v Reis

Details

AGLC: Swanson v Reis [2018] SASC 20
Case: [2018] SASC 20
Decision Date: 2 March 2018

CaseChat Overview and Summary

In the case of Swanson v Reis, the plaintiff, the second plaintiff, applied for further provision from the estate of his late mother, Barbara Gesine Reis, pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (IFPA). The plaintiff was initially joined by his sister, Angela Kim Swanson, but she discontinued her claim before the trial. The deceased left a will, which divided her estate into three equal parts, with two parts going to the defendant, Andreas Peter Reis, and the remaining part divided equally between the plaintiff and Ms Swanson. The plaintiff claimed that he was left without adequate provision for his proper maintenance, education or advancement in life.

The primary legal issue the court had to decide was whether the plaintiff had been left without adequate provision for his proper maintenance, education or advancement in life, and if so, what provision should be made out of the testator’s estate for the plaintiff. The court examined the evidence provided by the plaintiff and the defendant, as well as the evidence given by the defendant’s partner, Ms Locke. The court considered the principles established in previous cases, such as Parker v Australian Executor Trustees Limited and Singer v Berghouse, which outlined the two-stage process for determining whether adequate provision has been made.

The court found that the plaintiff had been left without adequate provision for his proper maintenance, education or advancement in life. The court took into account the plaintiff's personal circumstances, including his age, employment history, and family responsibilities. The court also considered the estate's value and the division of the estate as per the deceased's will. The court exercised its discretion and ordered that an appropriate provision be made out of the testator's estate for the plaintiff. The court further considered the circumstances of the defendant, including his financial situation and the properties he owned.

The final orders of the court included the determination that the plaintiff was left without adequate provision for his proper maintenance, education or advancement in life and ordered that a provision be made out of the testator's estate for the plaintiff. The court did not specify the exact amount of the provision but left it to be determined by the parties or through further court proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The second plaintiff has made an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (the IFPA) for further provision from the estate of his late mother, Barbara Gesine Reis (the deceased), who died on 30 July 2016. When this action was first issued, the second plaintiff was joined as plaintiff by his sister, Angela Kim Swanson. However, shortly before the trial, Ms Swanson elected to discontinue her claim. As a result, I will refer to the second plaintiff throughout as “the plaintiff”.Background At her death, the deceased was a widow and was survived by her three children, Ms Swanson, the plaintiff and Andreas Peter Reis. She left a will dated 10 May 2016, in relation to which probate was granted on 21 November 2016. Probate was granted to Andreas Peter Reis. Andreas Peter Reis is named in this action in his capacity as executor as first defendant, and in his capacity as beneficiary as second defendant. Throughout I will refer to him as the defendant. By her will, the deceased gave all of her furniture and personal effects to the defendant. The residue she divided into three equal parts, with two of those parts to go to the defendant and the remaining part to be divided equally between the plaintiff and Ms Swanson. In effect, the defendant is to receive two thirds of the estate and the plaintiff is to receive one sixth of the estate. The net estate is estimated to be worth around $420,000. The residue (and main asset) of the estate is made up of a property situated at Flagstaff Hill, as well as a small amount of cash. The value of the property at Flagstaff Hill is estimated to be around $400,000. Thus, the plaintiff’s entitlement under the will amounts to around $66,666. I note that in submissions both plaintiff and defendant estimated the plaintiff’s entitlement to be around $70,000. This figure, however is based on the entirety of the net estate of $420,000, rather than simply the residue. Nothing turns on this. I further note that no formal valuation of the Flagstaff Hill property has occurred; the parties were agreed as to its approximate value.The personal circumstances of the plaintiff The plaintiff’s evidence was primarily by way of affidavit, supplemented by oral evidence. The plaintiff was born on 5 July 1961 and at the time of the hearing was 56 years old. In relation to his family history, the plaintiff gave evidence that his father, Rudolph, was born in Vienna. He was a carpenter and violin maker. His mother, the deceased, was born in East Germany. He had a happy childhood, during which he, his parents and siblings lived on a property at Morphett Vale. He left school two thirds of the way through year 11 to take up a position as a trainee manager at Coles. While at school, the plaintiff assisted his parents on the family property, working in the garden, doing maintenance work and other similar tasks. The plaintiff told the Court that he married during the 1990s, and in 1998 his daughter, Tayla, was born. His marriage ended in the mid-2000s.

Evidence

Evidence Before The Court

In addition to that of the plaintiff and the defendant, evidence was given by the defendant’s partner, Ms Locke. Ms Locke confirmed her relationship with the defendant, that they initially lived together at a property owned by her, and that they purchased a property together in June 2014. She confirmed the other purchases of property that she and the defendant had made together, and the approximate values of those properties. She also provided evidence in relation to the living expenses paid by each of them. She confirmed the defendant’s evidence that she intended to move out of their current residence in February 2018, as a result of the stress their relationship had been under because of the death of the deceased and the consequent litigation. Summary of the evidence I found each of the witnesses to be truthful, and have no hesitation in accepting the evidence of any of them. Where the plaintiff’s evidence differed from the defendant’s, I attribute this to a difference in perception, as opposed to one or other of them not being truthful. Each party provided estimated valuations for the properties they own, and while these estimations may not be entirely accurate, each party was content to act on this basis. The only valuation in dispute was the valuation of the defendant’s Second Valley property, as it has not been revalued since a house was built on it. Nonetheless, I accept the defendant’s evidence that whatever its current value, it is significantly encumbered, as a result of building the house on it.The principles to be applied The plaintiff makes his claim pursuant to s 7 of the IFPA, which reads:7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person (1) Where— (a) a person has died domiciled in the State or owning real or personal property in the State; and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled. Section 7 has been the subject of much judicial consideration. Its purpose was discussed by Lovell J in Parker v Australian Executor Trustees Limited[11] in the following way:[11] [2016] SASC 64.[17] The purpose of the Act is to permit a court in certain circumstances to displace a testator’s dispositions. It does not impose any limitation on a testator’s power of disposition but if the statutory conditions are satisfied a court is empowered to alter a testator’s disposition to produce a result that is consistent with the purpose of the Act. The legislation is remedial in character and has been construed to give the most complete remedy which the phraseology will permit. [18] The inquiry as to whether adequate provision has been made involves a two-stage process. The first stage calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education and advancement in life (this has been referred to as the “jurisdictional question”). The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to decide what provision ought to be made out of the testator’s estate for the plaintiff. [19] In relation to the two stage process Gleeson CJ in Vigolo v Bostin stated:What has been described as the two-stage approach to the exercise of such a statutory power was explained by this Court in Singer v Berghouse, and is not in controversy in this appeal. It is evidence that, depending upon the stage of consideration involved, the following judgments are required by the terms of s 6. What kind of provision for the matters referred to in that section should be regarded as adequate? What should be regarded as proper maintenance, support, education or advancement in life in the case of a particular applicant? If the court comes to exercise its discretion to make an order in favour of an applicant, what should it regard as fit provision for the purposes referred to in the section? Upon whom should the burden of such an order fall?(Footnotes omitted)[20] Thus when considering the first stage of the test the question is whether, in all the circumstances of the case, it can be said that an applicant has been left by the testator without adequate provision for his or her proper maintenance, education or advancement in life. The second stage involves the Court exercising its discretion in all of the circumstances of the case.[21] The twin tasks facing a court are similar. The first stage involves the application to the facts of a legal criterion although that involves a value judgment by the Court. The second question involves the exercise of a judicial discretion. Although they are separate questions they may in many circumstances come close to each other and a favourable determination of the first may substantially influence the answer to the second. However, the first question is to be decided as at the date of death of the deceased and the second as at the date of any order.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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