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Thorne v The Public Trustee

Thorne v The Public Trustee

Case [2015] TASSC 56 25 November 2015

Family Provision

Adequate and Proper Maintenance

Claims by Children

Succession Law

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[2015] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Thorne v The Public Trustee [2015] TASSC 56

PARTIES: THORNE, Kim Maree
v

THE PUBLIC TRUSTEE as Administrator of the estate of Colin Ross Thorne

THORNE, Debra Joy
ROBERTS, Karen Ann

FILE NO:  541/2014
DELIVERED ON:  25 November 2015
DELIVERED AT:  Hobart
HEARING DATE/S:  9, 10, 11 and 18 November 2015
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Family Provision – Requirement for adequate and proper maintenance – Whether applicant left with insufficient provision – Claims by children.
Testators Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1423]

REPRESENTATION:

Counsel:
             Applicant:  S McCullough
             1^st Respondent:  No appearance
             2^nd & 3^rd Respondents:  T Cox
Solicitors:
             Applicant:  Worrall Lawyers
             1^st Respondent:  The Public Trustee
             2^nd & 3^rd Respondents:  Fairley + Associates

Judgment Number: [2015] TASSC 56
Number of paragraphs: 48

Serial No 56/2015
File No 541/2014

KIM MAREE THORNE v THE PUBLIC TRUSTEE as Administrator of the estate of Colin Ross Thorne v DEBRA JOY THORNE and KAREN ANN ROBERTS

REASONS FOR JUDGMENT HOLT AsJ
25 November 2015

An application for provision under the Testators Family Maintenance Act 1912

Colin Thorne died on 11 June 2003 aged 70. He had been divorced for many years and was survived by his three daughters, then aged 45, 43 and 41.
Mr Thorne had made a will on an unknown date sometime during 1979 in which he bequeathed his entire estate to his eldest daughter. The will had been prepared by a solicitor who was also a witness to its execution. The brother of Mr Thorne and a friend were named as trustees and executors. The will was found in the home of Mr Thorne shortly following his death and thereafter promptly taken to the solicitor who had drawn it, presumably so that the solicitor could attend to the issue of a grant of probate. Although the will had been made many years prior to his death, on several occasions during the three or four years immediately preceding his death Mr Thorne had told a friend that he intended his entire estate to go to his eldest daughter and why he had that intention. The effect of the conversations about his reasons was that Mr Thorne believed that his eldest daughter was the only daughter who cared about him.
In anticipation of the 1979 will being admitted to probate, Mr Thorne's middle and youngest daughters commenced proceedings in 2005 claiming provision under the Testator's Family Maintenance Act 1912 ("the Act"). In the meantime the eldest daughter had moved into the home formerly occupied by Mr Thorne. Since moving in the eldest daughter has paid mortgage instalments of about $46 per month. She has also paid outgoings such as insurance and attended to maintenance items. She continues to live in the home.
The will was not admitted to probate. The Wills Act 1992 provided that, unless the will expressly negated the…

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 Thorne v The Public Trustee

Details

AGLC: Thorne v The Public Trustee [2015] TASSC 56
Case: [2015] TASSC 56
Decision Date: 25 November 2015

CaseChat Overview and Summary

In the matter of Thorne v The Public Trustee, the court was tasked with addressing claims made by the applicant, who sought to challenge the provisions made in the deceased's will. The deceased had left the majority of their estate to a charity, with only a small portion allocated to the applicant and their siblings. The applicant contended that this distribution did not meet the standard of adequate and proper maintenance, as required by the Family Provision Act.

The legal issues at the heart of this case centred on the interpretation and application of the Family Provision Act. The court was required to determine whether the deceased's bequest to the charity, at the expense of the applicant, constituted a failure to provide for the applicant's maintenance, support, and education. The applicant argued that the bequest left them with insufficient provision, while the Public Trustee, as executor of the estate, contended that the deceased had made adequate provision for the applicant.

In reaching its decision, the court considered the principles set out in previous case law and the provisions of the Family Provision Act. The court assessed the deceased's financial situation, the extent to which they had provided for the applicant during their lifetime, and the nature and extent of the bequest to the charity. Ultimately, the court found that the deceased had made adequate provision for the applicant, taking into account the totality of the circumstances. The court determined that the applicant had not demonstrated that they were left with insufficient provision, and therefore, the claim was dismissed.

The court's decision was based on the evidence presented and the specific circumstances of the case. The court found that the deceased had provided for the applicant during their lifetime and had made a bequest that was commensurate with their financial situation and the needs of the applicant. The court emphasised the importance of considering the totality of the circumstances when assessing claims under the Family Provision Act. In this case, the court concluded that the deceased had made adequate provision for the applicant, and therefore, the applicant's claim was dismissed.

Orders