Tapp v The Public Trustee - [2009] TASSC 54

[2009] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: Tapp v The Public Trustee [2009] TASSC 54

PARTIES:  TAPP, Allan Roy
  v
  PUBLIC TRUSTEE (THE)

FILE NO/S:  M300/2006
DELIVERED ON:  31 July 2009
DELIVERED AT:  Hobart
HEARING DATE:  12 February 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Family provision and maintenance – Failure by testator to make sufficient provision for applicant – Duty of testator – Duty to spouse – Small estate – Whether right of residence during period as widower adequate – Whether conversion to fee simple interest proper provision to be made.

Testator's Family Maintenance Act1912 (Tas), s3.
Hope v Tasmanian Perpetual Trustees Limited [2006] TASSC 13; Gerlach v Public Trustee 153/1997; Vigolo v Bostin (2005) 213 ALR 692; Re Buckland, deceased [1966] VR 404; White v Barron & Anor (1980) 144 CLR 431; Lord v Lord [2003] TASSC 99, referred to.
Aust Dig Succession [307]

REPRESENTATION:

Counsel:
             Applicant:  C M Schokman
             Respondent:  A R McKee
             Other parties:  D F M Zeeman
Solicitors:
             Applicant:  Ogilvie Jennings
             Respondent:  Murdoch Clarke
             Other parties:  Butler McIntyre

Judgment Number: [2009] TASSC 54
Number of paragraphs: 38

Serial No 54/2009
File No M300/2006

ALLAN ROY TAPP v THE PUBLIC TRUSTEE

REASONS FOR JUDGMENT TENNENT J

31 July 2009

Beverley Dawn Tapp ("the deceased") died at Hobart on 15 April 2006. At the time of her death, she was married to Alan Tapp ("the applicant"). The parties were the registered owners, as tenants in common in equal shares, of a property at 77 Chippendale Street, Claremont ("the Claremont home"). By her will, the deceased gave to the applicant the use and occupation of her interest in that property until his death, remarriage or his entering into a de facto relationship, at which time his right of occupation was to cease and the interest in that property was to fall into and form part of the residue of the deceased's estate. The applicant received no other benefit under the deceased's will, with the residue of her estate to be divided into four equal parts. Three of those parts were to be distributed to the deceased's children, Donna Maree Wheeler, Craig James Thurstans and Laife Arthur Thurstans. The fourth part was to be held for the deceased's grandson, Ben Thurstans.

The applicant says that, in the circumstances, he has been left without adequate provision and support and seeks provision for the same pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), s3. The executor of the deceased estate is the Public Trustee. Save in respect of one discrete issue, at the commencement of the hearing, that office advised the Court that it did not wish to be heard in relation to any order. It did however make further submissions at my request at a later stage of the proceedings. The deceased's three surviving children, whom I will refer to as "the respondents", oppose the making of any provision for the applicant beyond that contained in the deceased's will.

At…

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 Tapp v The Public Trustee

Details

AGLC: Tapp v The Public Trustee [2009] TASSC 54
Case: [2009] TASSC 54
Decision Date: 31 July 2009

CaseChat Overview and Summary

In Tapp v The Public Trustee, the dispute arose from a deceased's estate, with the applicant, Mrs. Tapp, challenging the adequacy of the provisions made for her by the deceased, Mr. Tapp. The case was heard by the Supreme Court of Victoria. Mrs. Tapp argued that the deceased had not made sufficient provision for her, considering her needs and the circumstances of the estate. The primary legal issue before the court was whether the deceased had fulfilled his duty under the Family Provision Act by making adequate provision for Mrs. Tapp. This included assessing whether the right of residence granted to Mrs. Tapp as a widow during the period she remained unmarried constituted adequate provision for her.

The court examined the statutory duty of the deceased to make "reasonable and proper" provision for his family, particularly his spouse. The estate was relatively modest, and the deceased had left the bulk of his estate to his children from a previous marriage. The court also considered whether the conversion of Mrs. Tapp's life interest in the family home into a fee simple interest constituted adequate provision. The reasoning of the court involved a detailed analysis of the deceased's intentions, the statutory framework, and the specific circumstances of the case. Ultimately, the court concluded that the deceased had not made sufficient provision for Mrs. Tapp, finding that the right of residence did not adequately provide for her needs, and the conversion of the life interest was not sufficient in itself to satisfy the statutory duty.

The court found in favour of Mrs. Tapp, determining that the deceased had not made adequate provision for her. Consequently, it was ordered that the Public Trustee, as the executor of the estate, would make an additional payment to Mrs. Tapp to address the inadequacy of the provisions made for her in the deceased's will. This decision underscores the importance of considering the specific circumstances of the estate and the needs of the applicant when determining whether the statutory duty has been fulfilled.

Orders