Tiburzi v Butler
[2017] SASCFC 89
•28 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
TIBURZI v BUTLER
[2017] SASCFC 89
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
28 July 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
The testator died aged 88 years. He was survived by the respondent (plaintiff), who is his adult daughter, and by his son. By his will, the testator made the following gifts: $50,000 to each of his two children; the contents of a shed with estimated value of $5,000 to his daughter; $100,000 to his sister; $10,000 to two friends; and $100,000 on trust to the children of the appellant (defendant). These gifts were uncontested. The residue of the estate, which the trial judge determined to be approximately $1.4 million, was left to the defendant, who is an executor of the estate. The defendant was not a member of the testator’s family, but had developed a close relationship with him.
The plaintiff brought a claim pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) against the estate for further provision on the basis that she had not been left with adequate provision for her proper maintenance, education and advancement.
The trial judge found that the plaintiff had been left without adequate provision, and exercised his discretion to order further provision in her favour of $725,000.
The defendant appealed the decision of the trial judge on the basis that the trial judge erred: in his findings and approach regarding the plaintiff’s financial circumstances; in his findings and approach regarding the period of estrangement between the plaintiff and testator; in failing to provide adequate reasons for the further provision awarded to the plaintiff; and in ordering further provision in an amount that was unreasonable or plainly unjust.
Held per Doyle J (Vanstone and Parker JJ agreeing), dismissing the appeal:
1. There was no error in the trial judge’s approach and findings regarding the plaintiff’s financial circumstance;
2. There was no error in the trial judge’s approach and findings regarding the issue of estrangement;
3. The trial judge’s reasons for the amount he awarded by way of further provision were adequate;
4. The amount of further provision awarded by the trial judge was within the range of awards that might reasonably have been made.
Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Andrew v Andrew (2012) 81 NSWLR 656; Blair v Blair (2004) 10 VR 69; Burke v Burke [2005] NSWCA 195; Bowyer v Wood (2007) 99 SASR 190; Daniel v Van Zwol [2015] SASCFC 38; Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; Durham v Durham (2011) 80 NSWLR 335; Golosky v Golosky (unreported, in the New South Wales Court of Appeal, 5 October 1993); Grey v Harrison [1997] 2 VR 359; House v The King (1935) 55 CLR 499; Jenkins v Livesey [1985] AC 424; McCosker v McCosker (1957) 97 CLR 566; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Singer v Berghouse (1994) 181 CLR 201; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Taylor v Farrugia [2009] NSWSC 801; Vigolo v Bostin (2005) 221 CLR 191; White v Barron (1980) 144 CLR 431; Worladge v Doddridge (1957) 97 CLR 1, discussed.
TIBURZI v BUTLER
[2017] SASCFC 89Full Court: Vanstone, Parker and Doyle JJ
VANSTONE J: For the reasons given by Doyle J, I would dismiss the appeal.
PARKER J: I would dismiss the appeal. I agree with the reasons of Doyle J.
DOYLE J: This is an appeal from an order granting an application for further provision from a deceased estate under s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act).
The appellant, Ms Tamara Tiburzi, is an executor of the estate of Mr Kevin Cock (the testator), and was the defendant to the application. The respondent, Ms Susan Butler, was the plaintiff applicant, and is the daughter of the testator.
The trial judge determined that after various specific bequests valued at about $315,000 (including a bequest to the plaintiff of $50,000 plus the contents of a shed valued at about $5,000), the distributable estate was approximately $1.4 million. His Honour held that the testator left the plaintiff without adequate provision for her proper maintenance, education or advancement in life, and exercised his discretion to order further provision in the plaintiff’s favour of $725,000.
In challenging the order for further provision, the defendant contends that the trial judge erred:
1. in his findings in relation to the plaintiff’s interest in Knowledge Global Pty Ltd (appeal ground 1);
2. in his approach and findings in relation to the period of estrangement between the plaintiff and the testator (appeal grounds 1A and 2);
3. in providing inadequate reasons for the further provision ordered (appeal ground 2A); and
4. in ordering further provision in an amount that was unreasonable or plainly unjust (appeal ground 3).
Background
The testator died on 30 April 2013. He was 88 years of age. He was survived by his daughter (the plaintiff) and son (Mr Kenneth Cock). The testator had been divorced since the mid-1970s and never remarried.
By his will made on 15 February 2013, the testator bequeathed $50,000 to each of his two children. He also gifted to the plaintiff the contents of a shed, which was estimated to have a value of $5,000. He made various other bequests, with the specific bequests having an overall value of approximately $315,000. He left the residue of the estate to the defendant, who was one of the named executors. The defendant is not a member of the testator’s family, but as will be explained below, came to develop a relatively close relationship with the testator.
The trial judge was not able to calculate precisely the value of the estate, but proceeded on the basis that the distributable estate in respect of which further provision may be ordered was around $1.4 million. There is no challenge to this starting point for his Honour’s consideration of the plaintiff’s application for further provision.
The plaintiff and her personal circumstances
The trial judge made detailed findings as to the plaintiff’s upbringing, work history, financial circumstances and health.
By way of overview, the plaintiff’s childhood was difficult. Her schooling was disrupted as a result of her family travelling a lot for the testator’s work. Over a number of years she witnessed the testator perpetrate significant domestic violence against her mother. She left the family’s then home in Woomera to complete her final two years of high school in Adelaide. She undertook some tertiary studies at a teachers college.
In 1968, at the age of 19, the plaintiff commenced work as a teacher. In 1970 she married, and in 1972 she obtained work as a teacher at Annesley College. She remained in that role for some 14 years, although not continuously.
In 1973, the plaintiff’s mother left the testator. She later remarried, before dying in around 1984. Following his separation from the plaintiff’s mother, the testator stayed with the plaintiff and her husband for “a long time on and off”. He was bitter about the divorce. He constantly complained about his ex-wife and her family to the plaintiff.
The plaintiff and her husband, together with their daughter Danielle, took a seven month trip to Europe in 1976. After returning to Adelaide to work and save money, the plaintiff and her husband were both awarded scholarships to attend university in Italy. They lived in Italy for a year, before the plaintiff returned to Adelaide so that Danielle could continue her schooling. However, the plaintiff’s husband did not return with them as he wished to continue his study in Italy. The plaintiff and her husband separated in about 1982. They divorced in 1984, and the plaintiff received a divorce settlement of $12,000. She used this money to purchase a property in Parkside for $51,000, after borrowing the balance of the purchase price.
Following her return to Australia, the plaintiff resumed her teaching career for about three years. She then worked for the Senior Secondary Assessment Board of South Australia. Her role was initially in preparing curriculum material, and she later became the chief examiner for various computing subjects. The plaintiff undertook post-graduate study in the field of computer science, and then worked part-time as a university lecturer in this field.
In 1989 the plaintiff’s daughter moved to Townsville to commence her studies. The plaintiff moved to Japan, where she lived and worked for a few years. She then spent a period in Hong Kong before moving to Sydney for work in 1995.
By 1996 the plaintiff’s daughter had completed her tertiary studies, and she and the plaintiff took an extended trip to Europe. The plaintiff returned to Australia in 1997. She sold her Parkside property and moved to Sydney. The property sold for about $200,000. After discharging the mortgage, the balance of approximately $140,000 was placed in a fixed term deposit.
Once in Sydney, the plaintiff secured work as a project director with New South Wales Health. While in this role, she earned $1,100 per day for most of the year.
In 1999, she and her business partner, Ms Karen Dunwoodie, commenced working on establishing an on-line business through Ecomm.Unity Planet Pty Ltd (Ecomm). She and Ms Dunwoodie spent approximately a year meeting with investors and conducting research, and the company was registered in March 2000. At times the Ecomm business was relatively lucrative, with the plaintiff receiving around $2,400 per day during one short term contract, and $5,000 per day during another short term contract. However, Ecomm began to struggle. The market slowed, and contracts were not honoured. The plaintiff was required to use her savings in order to live.
In 2002 the plaintiff returned to Adelaide. Ecomm collapsed, and the plaintiff became short of money. She moved into her brother’s house in Adelaide as he was living in Indonesia at the time. She shared the house with another women, and did not pay any rent. She remained in that house until 2011, when the plaintiff’s brother and his wife came back to Australia. Since then the plaintiff has lived in rental accommodation.
In 2002 the plaintiff commenced a business conducted through Knowledge Global Pty Ltd. The business involved assisting other organisations to measure sustainability, evaluate energy efficiencies and trade in carbon credits. It also involved developing software and other means to facilitate environmental sustainability. In 2007, a man the plaintiff met through some of her consulting work, Mr Ross Sharman, became her co-director of Knowledge Global.
The plaintiff is the managing director of Knowledge Global, and until 2013 her role involved working directly with clients. However, as her health declined she found herself becoming fatigued and she started making mistakes. Since 2013 she has not been able to do much work in the business. By the time of trial, her co-director was doing virtually all of the work involved in running Knowledge Global. She continued to draw the same income from the business as Mr Sharman, but considered that this could not continue. The plaintiff has a 53 per cent shareholding in Knowledge Global, which she holds through a family trust. However, there has been some pressure from her co-director for him to take over the majority shareholding.
Since about 2003, the plaintiff’s primary source of income has been monies received through Knowledge Global. She has a received a combination of wages, director’s fees and consultancy fees. In terms of the income generated by the business, the plaintiff and Mr Sharman did not receive a set amount each month. Rather, they operated on the basis that if there is money available, then they were paid something. The plaintiff invested most of her income back in Knowledge Global.
From the financial records of Knowledge Global tendered at trial, it is apparent that the plaintiff received limited income from the business during the period 2003 to 2010. She enjoyed an increase in income in 2011 and 2012 due largely to the combination of a contract with a client named Centennial Coal and a research and development rebate received from the Federal Government.
During the 2013 financial year, Knowledge Global earned revenue of $319,523, but after expenses incurred an operating loss of $126,276. The plaintiff’s taxable income during the 2013 financial year from Knowledge Global was $104,086.
For the 2014 financial year, Knowledge Global generated income of $268,148, but after expenses incurred an operating loss of $156,941. The plaintiff’s taxable income in this period was $102,324.
For the 2015 financial year, Knowledge Global generated revenue of $316,309, with an ultimate operating loss of $6,828. The plaintiff’s taxable income in this period was $70,364.
As the trial judge held, by the time of trial Knowledge Global was struggling financially. Shares were being issued to pay for work undertaken by both the directors and other people contracted to do work for the company. There had been a lack of interest from investors to invest in the company. The business had only a small number of clients. The only major client was Centennial Coal, which contracted the services of Knowledge Global in 2012. That contract expired on 30 April 2016, and Centennial Coal gave notice that the contract would not be renewed. The trial judge held that Knowledge Global’s financial ability to keep making payments to the plaintiff was likely to be severely and adversely impacted given the loss of Centennial Coal as a client.
As to the plaintiff’s current financial position, she owns no real property. She has a small parcel of Telstra shares which provides a token return each year. She has a 2004 model vehicle valued at around $8,000. Having earlier drawn down on her superannuation due to financial hardship, her superannuation was a mere $22,272 as at 30 June 2015. In 2014 the plaintiff received an inheritance from her stepfather’s estate of $105,000. She used this inheritance to supplement her income from Knowledge Global, and also to further invest in Knowledge Global. As a result, only $48,000 remains from the inheritance.
Turning to the plaintiff’s health, she has a significant and lengthy medical history. It includes the development of mitral valve disease as a child; heart surgery in 1972; atrial fibrillation and congestive heart failure, leading to a second bout of heart surgery in 2009; and a diagnosis of breast cancer in 2010, resulting in the plaintiff undergoing a double mastectomy and then breast reconstruction surgery. Following her diagnosis with breast cancer, the plaintiff was required to undergo chemotherapy, and has been on anti-cancer medication for some six years. The plaintiff had her gallbladder removed in 2015.
In terms of the plaintiff’s current health, as at the time of trial her breast cancer was in remission, although she continued to be monitored. She was experiencing shortness of breath, fatigue and abdominal discomfort due to her heart condition. According to the plaintiff’s treating medical practitioner, Dr Geoffrey White, these symptoms have caused a “moderate to severe” reduction in her ability to work. There is no cure for her heart condition, and there is expected to be a gradual deterioration in her condition that will need to be managed through the balance of her life with medication and monitoring. The plaintiff is on a range of medication for her medical conditions.
As to the future, the plaintiff has considered further breast reconstruction surgery due to body image issues as a result of her scarring. If this surgery is undertaken, it will cost approximately $15,000. There is also a possibility that a third open-heart operation may be required if the plaintiff’s replaced mitral valve fails. Given the plaintiff’s cardiac history, there is a risk she will suffer severe intractable heart failure. If this occurs, the plaintiff will require a cardiac pump and subsequent heart transplant. The costs associated with this surgery would be significant.
The plaintiff’s relationship with the testator
For reasons which do not matter, but which included the testator’s background treatment of his ex-wife and ongoing negativity towards her, the relationship between the testator and his son, the plaintiff’s brother, broke down irretrievably at some point in the 1980s.
So far as the plaintiff is concerned, her evidence was that throughout her adult life, the testator remained fixated upon his marital breakup. He continually spoke negatively about her mother, seeing himself as the victim and complaining that he had been treated poorly and hurt. On the trial judge’s findings, this made it difficult for the plaintiff to maintain a relationship with the testator. However, despite the difficulties in their relationship, the plaintiff continued to have regular contact with the testator until 2004.
I have mentioned that he lived with the plaintiff and her husband after his separation from the plaintiff’s mother in 1973. The testator assisted the plaintiff with renovating the Parkside home that she bought after her divorce in 1984. He attended Danielle’s birthday celebrations, and he attended her farewell party before she left Adelaide to study interstate in 1989.
When the plaintiff moved to Japan, the testator managed the Parkside property for her, and received her redirected mail. Throughout her time in Japan, the plaintiff maintained contact with the testator. At one stage he visited her in Japan and stayed for about 10 days. Similarly, while living in Sydney, the plaintiff stayed in contact with the testator, who was still looking after her property in Parkside. On the occasions that she returned to Adelaide to visit, she and her daughter, Danielle, stayed with the testator. The testator provided the plaintiff with some financial assistance when she experienced difficulties around the time of her extended visit to Europe in 1996.
Following the plaintiff’s return to Adelaide in 2002, she had regular contact with the testator. He would often visit her and Danielle. They had meals together and went out for dinner often. The testator helped Danielle move into her own place, and he stored some of her belongings in his shed.
However, and despite this level of contact, the relationship between the plaintiff and the testator remained a difficult one. While the plaintiff often telephoned the testator at his work, she did not identify herself as his daughter because she understood that he did not like this. The testator also never introduced or referred to Danielle as his granddaughter. He always referred to her as “the girl”. The trial judge described the testator as a difficult man.
By 2004 the plaintiff was emotionally drained from being constantly harangued about her mother, despite her mother having been deceased for 20 years. The plaintiff made a conscious decision not to contact the testator. She still wanted a relationship with her father, but wanted him to stop belittling her mother. Prior to 2004, the contact between them had been mostly at the instigation of the plaintiff. The plaintiff wanted the testator to initiate contact.
In the event, this did not happen. The testator never contacted the plaintiff. This period of estrangement or non-contact lasted approximately eight years. It ended in 2012 when the plaintiff learned, from the daughter of the testator’s sister, that the testator had been diagnosed with lung cancer.
Upon learning of this, the plaintiff contacted the testator. She thereafter visited the testator two or three times a week, both at his home and then, from October 2012, at the Burnleigh residential care facility where he was then living. When she went interstate for work during the week, she tended to visit the testator on Saturdays. The plaintiff last visited the testator in February 2013.
During the plaintiff’s visits, the testator began to reveal more about himself and his thoughts. He spoke in some detail about his service in the war and its effect upon him. He discussed his own family and work. The testator also spoke about his funeral, telling the plaintiff that he wanted “no fuss”.
The plaintiff also opened up to her father. She told him she had breast cancer, although did not discuss the detail. She also discussed Knowledge Global with her father, but not in great detail. In 2012 she told him that the company had sold some of its shares for $100,000. She did not ever speak negatively about Knowledge Global to her father, but did mention at some point that its prospects had taken a downward turn. She did not want to trouble him with the detail, and he did not ever enquire about the implications for her future or financial security. She did not think he appreciated the severity of the situation.
During 2012 and 2013, the testator was hospitalised on several occasions. The plaintiff was informed of the first admission by the defendant, who was a contact person in the hospital records. The plaintiff was told by the defendant that the testator did not want his children to visit him. While the trial judge accepted that the defendant said this to the plaintiff, he did not accept the truth of what the defendant said. On the occasion of the second admission, the plaintiff was contacted directly by the hospital, and visited the testator in hospital.
In February 2013 the testator discussed his will with the plaintiff. He said he was concerned about leaving money to the defendant because her husband had been violent towards her and had a gambling problem.
When the testator died, the defendant organised an open coffin funeral service. The plaintiff did not attend because she could not look at her father in an open coffin. The plaintiff was very upset by the plan to hold an open coffin service, as was the testator’s sister. The plaintiff discussed with the defendant the family’s wishes, including her understanding of the testator’s wishes, but the defendant paid no heed to those wishes.
The defendant and her relationship with the testator
The defendant was 37 years of age at the time of the trial. She has two children, then aged 12 and eight years. She had previously married but divorced in August 2015. Her husband had been physically abusive to her during the marriage. The defendant has a new partner, Mr Jason Barracelli, whom she met in 2013.
The defendant was born in Italy. Her family moved to Australia in 1983, and to Adelaide in 1990. She completed her schooling in 1996. Her parents’ relationship also involved instances of domestic violence, which ultimately led to the defendant leaving home. Her parents separated in 2002, and while she maintained a close relationship with her mother, she has had no contact with her father.
The defendant gave evidence about her relationship with the testator. She gave her evidence in chief largely by way of affidavit. She explained that she met the testator in 1998 whilst working in a supermarket, when she was 18 years of age. The testator lived nearby and would often attend the supermarket and chat with the defendant, and with her younger sister who also worked at the supermarket. After a few months, the testator invited them both to lunch, and a friendship developed. The defendant regularly visited the testator during her lunchbreak. The defendant described her relationship with the testator as being akin to a father/daughter relationship from the outset. She confided in him, and sought his advice about various matters.
When she was 19, the defendant ceased working at the supermarket, but continued to visit the testator, and to maintain her close friendship with him. In 2000, when the defendant was 20 years of age, the defendant and her sister moved into rental accommodation. The testator purchased some furniture and whitegoods for them to help get them started, and on the basis that they could pay him back once they were on their feet. The defendant’s evidence was that the testator “never once complained or made an issue about repayment of the money”, and that she repaid the testator four years later.
The defendant’s evidence was that during the mid-2000s she had daily telephone communication with the testator, and saw him three to four times a week, mostly at his house. He attended gatherings hosted by her, including her engagement party. He walked her down the aisle when she married in 2008. She attended the annual Australia Day gatherings that the testator hosted.
The defendant explained that she provided significant assistance to the testator during the final years of his life. She drove him to his medical appointments, cleaned his house and checked his mail. She helped him with his meals and other activities of daily living. She organised his move into residential care at Burnleigh. She visited him in Burnleigh, and took him on day trips.
The plaintiff did not dispute that the defendant greatly assisted the testator during the later years of his life. The testator had told the plaintiff how grateful he was for the defendant’s assistance and affection.
However, during cross-examination the defendant’s evidence, particularly as to the early stages of her relationship with the testator, was challenged. It became apparent that far from the testator having never complained about the repayment of the money he spent to purchase furniture and whitegoods for her when she moved into the rental property in 2000, the testator had issued a minor civil court action against the defendant and her sister for recovery of the monies owed to him. The defendant claimed to have “totally forgot” about this. Further, in her evidence in chief she did not mention that she was presently in a relationship, and initially denied any such relationship during cross-examination, describing Mr Barracelli as simply “a guy I had met”. After further cross-examination she admitted that she knew her initial answer was false at the time she gave it, and could not provide any satisfactory explanation for why she had been untruthful.
After the morning break following her admission that she had not told the truth about her relationship with Mr Barracelli, the defendant did not return to Court for the continuation of her cross-examination. A short adjournment was granted for the defendant to consult her general practitioner. A subsequent lengthier adjournment was granted on account of evidence that the defendant had gastroenteritis.
Upon the resumption of the trial the defendant’s counsel informed the Court that the defendant “does not wish” to resume her evidence. A further adjournment of about four months was granted on account of the defendant’s medical condition. At the next resumption of the trial, the defendant’s counsel sought the discharge of the defendant from further examination on medical grounds. The Court was provided with medical evidence in support of the defendant’s request.
Due to various inadequacies in the medical evidence, and in particular the instructions or assumptions upon which it was based, the trial judge did not ultimately accept that the defendant was unable to complete her evidence. He found that she chose not to complete her evidence, and had attempted to hide behind her medical condition.
The trial judge was left in the position of assessing the defendant’s evidence in light of her choice not to permit completion of her cross-examination. The trial judge held that her evidence, particularly as to the length and strength of her relationship with the testator, needed to be considered and scrutinised in that light. He found that she was evasive on many matters, and had been deliberately untruthful in her evidence on the two topics mentioned above. The trial judge mentioned that there were a number of other potential inconsistencies in her evidence which could not be explored, acknowledging that there may also have been other issues that had not yet been raised. The trial judge concluded that the defendant’s evidence was unreliable, and that he would only act on her evidence where it was supported by other evidence or was not seriously in dispute. He did not accept her evidence about her early relationship with the testator.
The defendant called evidence from her mother, and from a friend of the testator, as to the nature of the relationship between the defendant and the testator. The trial judge largely accepted their evidence, which was to the effect that from around 2008 (in the case of the mother’s evidence) or 2010 (in the case of the friend’s evidence) the defendant had a good relationship, and strong bond, with the testator.
A compartmentalised life
The trial judge found that the testator led a compartmentalised life. He kept significant aspects of his life secret from his family and from the defendant. He deliberately kept his family and friends separate from one another.
For example, he told the defendant that he had no children, and she did not learn of his sister or children until 2012. The testator claimed that his children were angry because he had left their mother. He told the defendant that he did not trust his sister, despite the evidence being that he had lunch with her every week and left her $100,000 in his final will. The trial judge concluded that the testator had been untruthful about these matters to the defendant.
The trial judge also accepted that when the testator was diagnosed with cancer he said to the defendant that he did not want anyone else to know, and that he did not trust anyone else.
The plaintiff had known of the defendant “for a long time” prior to the testator’s death, but had not met her prior to doing so on the occasion of one of her visits to Burnleigh in late 2012.
Wills made by the testator
There was no challenge to the testator’s testamentary capacity. He made various wills over time.
In 2003 he made a will leaving the residue of his estate to his two children in equal shares. In 2005 he made a will that bequeathed $50,000 to the defendant, and the rest of the estate to his two children in equal shares. In October 2008 he instructed his lawyers to remove the defendant from his will, and to leave the majority of his estate to his two children. This was despite the testator having walked the defendant down the aisle at her wedding in February that year, and despite the testator by that point in time being estranged from his son and having had no contact with his daughter for some years.
Following an admission to hospital in September 2012, the testator reviewed his will. He had discussions with his solicitor as well as the defendant in late 2012 and early 2013. On 14 February 2013, the day before the testator’s last will was executed, the defendant contacted the testator’s solicitor and conveyed instructions about the insertion and removal of certain clauses in the testator’s will. This included reductions in the amounts left to the testator’s two children from $100,000 each to $50,000 each; that the bond of $280,000 paid to Burnleigh be refunded to the defendant; and that there be a $100,000 trust fund for the benefit of the defendant’s children. As the trial judge noted, the defendant was not able to be cross-examined about these instructions.
The testator told the plaintiff that she would be a beneficiary under his will, but did not disclose the amount she would receive. He also told her that her brother would receive a small amount, and that the defendant would receive under his will. However, he again did not disclose the amounts concerned.
The testator’s final will left most of the estate to the defendant. The trial judge observed that the above will-making pattern was not inconsistent with his finding that the relationship between the defendant and testator was not particularly strong until the later years of his life.
Approach and decision of the trial judge
The plaintiff’s application fell to be determined under s 7 of the Act. That section provides:
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.
As the trial judge recognised, this section requires a two stage process. The first stage, sometimes referred to as the jurisdictional question, calls for a determination of whether the plaintiff has been left without adequate provision for his or her proper maintenance, education or advancement in life. The second stage, which only arises if that determination is made in favour of the plaintiff, requires the Court to determine what provision ought to be made out of the testator’s estate for the plaintiff.
In McCosker v McCosker,[1] Dixon CJ and Williams J described the first stage, and in particular the role of the concepts of “adequate” and “proper” at this stage, in the following terms:[2]
…As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd) the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[1] McCosker v McCosker (1957) 97 CLR 566.
[2] McCosker v McCosker (1957) 97 CLR 566 at 571.
It is accepted that the concept of “advancement in life” extends to a person’s adult years.[3] Thus, for example, where an adult child of a testator falls on hard times, and where there are assets available, it may be proper to provide for a buffer against contingencies, including a lack of superannuation funds.[4] Similarly, an adult child’s lack of reserves to meet the demands of advancing years, particularly of ill health, is a relevant consideration.[5]
[3] Bowyer v Wood (2007) 99 SASR 190 at 204.
[4] Taylor v Farrugia [2009] NSWSC 801.
[5] MacGregor v MacGregor [2003] WASC 169 at [179].
In Vigolo v Bostin[6] the majority of the High Court held that when the jurisdictional question was being considered a court could have regard to considerations of a moral claim and moral duty. They are considerations that connect the general, but value-laden, language of the statute to community standards and give it practical meaning.[7] However, a moral claim cannot be a claim founded upon considerations not contemplated by the Act, and a court should not rewrite the will simply by reference to notions of fairness.[8]
[6] Vigolo v Bostin (2005) 221 CLR 191.
[7] Bowyer v Wood (2007) 99 SASR 190 at [44].
[8] Worladge v Doddridge (1957) 97 CLR 1.
Assuming the first stage is determined in the plaintiff’s favour, the second stage involves the exercise of a judicial discretion, but taking into account similar considerations to those which are relevant to the first stage. A potentially significant difference, however, is that the first stage involves a determination as at the date of the death of the deceased, whereas the second involves a determination as at the date of any order.[9]
[9] White v Barron (1980) 144 CLR 431; Andrew v Andrew (2012) 81 NSWLR 656.
In considering the first stage, the trial judge made the findings I have summarised above in relation to the plaintiff’s personal circumstances, including her financial circumstances.
In relation to the plaintiff’s interest in Knowledge Global, the trial judge found that it was struggling financially, and that there was a lack of interest from investors. The business was not readily saleable. While there had been some income from the company, now that the major contract had expired, income would be very limited. His Honour reasoned that while the company had some assets it could sell, and hence the plaintiff’s shares were not valueless, nevertheless they had at best only a modest value. While noting that the position of Knowledge Global had worsened since the date of the testator’s death, and that as at the date of his death it might have been thought that the company might be able to continue to pay the plaintiff for her labour for a few years, even at that time it was clear that it was not going to provide for her long term future. It was at best speculative that it could provide any sustainable income or asset base for her future needs, particularly bearing in mind that she was likely to have to stop work due to her health problems.
The trial judge observed that the testator appeared from comments made to his solicitor to have had a mistaken understanding as to the plaintiff’s financial circumstances. The testator did not make any serious enquiry of the plaintiff as to her financial circumstances, and the nature of their relationship was such that they did not discuss such matters in detail. While the plaintiff did tell the testator that there had been a downturn in her business, there was no more detailed discussion of the topic.
The trial judge concluded:[10]
Had the testator enquired about her financial circumstances he would have ascertained that she owned no real property and had not done so since about 1997. At that stage she had no savings and lived in rental accommodation. She had previously had to access her superannuation due to financial difficulties. At that time she owned a 2004 model motor vehicle and apart from her interest in Knowledge Global she had no other form of either income or financial investment. Whilst Knowledge Global had some prospect of paying her an income for a short period of time its ability to continue to pay her a wage for longer than a few years or provide her with an asset base was even at the time of the death of the testator problematic.
[10] Butler v Tiburzi [2016] SASC 108 at [188].
The trial judge also acknowledged that the period of estrangement that occurred in this case was a matter to be taken into account, but that it needed to be considered in the context of their relationship as a whole. His Honour concluded that while there was a period of time when contact ceased, this was largely (although not entirely) as a result of the testator. His Honour added that, consistent with his attitude during the rest of his life, the testator made no effort to contact his daughter. The defendant had paid him attention, and he had therefore concentrated his attention in that direction.
Finally, the trial judge also took into account the plaintiff’s quite severe health problems, adding that they were going to affect her ability to continue working. His Honour observed that the testator did not appear to have understood the nature of the plaintiff’s health problems, adding that it was likely that he was focused upon his own health needs in the period leading up to his death.
The trial judge concluded: [11]
On the whole of the evidence I am satisfied that the plaintiff has been left without adequate provision for her proper maintenance, education or advancement in life. The testator made his will not knowing the full extent of the plaintiff’s health and financial position. I find that the plaintiff has satisfied the first limb of the two stage test under section 7 of the Act.
[11] Butler v Tiburzi [2016] SASC 108 at [203].
Turning to the second stage, the trial judge commenced by noting that while all of the matters already referred to were again relevant, the evidence disclosed that the plaintiff’s current financial circumstances were worse than at the date of the testator’s death. The trial judge accepted the plaintiff’s evidence that she was unlikely to continue working for Knowledge Global due in large part to her health, that she was unlikely to find any other paid employment, and that it was likely she would have to retire and be reliant upon the age pension.
The trial judge considered the defendant’s competing moral claim over the estate. He agreed with the following passage from the reasons of Buss JA in Devereaux-Warnes v Hall (No 3):[12]
A beneficiary who is not an eligible claimant may have a ‘moral claim’ on the testator’s estate arising, independently of the Act, from the totality of the relationship between the claimant and the testator and contemporary accepted community standards. The existence of such a ‘moral claim’ and its relative strength or weakness, or the absence of such a claim, is a relevant consideration at the first and second stages.
[12] Devereaux-Warnes v Hall (No 3) (2007) 23 WAR 127 at [104].
The trial judge held that despite the difficulties with the defendant’s evidence, he was prepared to find that from around 2004-2005, and in particular from 2008 until his death, the testator and the defendant had a strong relationship, and that a moral obligation arose from this relationship. His Honour also generally accepted the defendant’s evidence as to her financial position.
The trial judge concluded as follows:[13]
The plaintiff is passionate about her work and area of expertise. Unfortunately, her impressive work history has not provided her with any form of savings or financial security. Her financial position is very poor. She has invested a great deal of her own funds into “start up” unprofitable companies that in the end have not been successful. At times she has been in receipt of Centrelink benefits. She has also accessed her superannuation during times of financial hardship. She has accumulated debts with the tax office. She owns no real property. Her superannuation is modest. She is now 66 years of age. She has significant and long-standing health issues. She will be reliant upon the age pension.
I accept that I should take into account the fact that there is a competing moral claim over the estate.
I take into account the matters discussed above when exercising my discretion.
[13] Butler v Tiburzi [2016] SASC 108 at [218]-[220].
The trial judge ordered, pursuant to s 7 of the Act, that provision be made out of the estate of the testator to the plaintiff in the sum of $725,000. It would appear that the trial judge arrived at a figure that was slightly more than 50 per cent of the $1.4 million residue, or precisely 50 per cent of the total of that residue plus the $50,000 left to the plaintiff by way of specific bequest.
Appellate approach in family provision cases
There is no doubt that the second stage of the process of determining an application under s 7 of the Act, being an exercise of judicial discretion, is subject to the principles concerning appellate review of a discretionary decision in House v The King.[14] Further, it is now settled that an appeal against a trial judge’s determination of the first stage, or jurisdictional question, is also governed by these principles of appellate restraint. This is so despite the first stage sometimes being described as the application of the facts to a legal standard, and involving an evaluative judgement rather than a discretion.
[14] House v The King (1935) 55 CLR 499 at 504-505.
For example, in Singer v Berghouse,[15] Mason CJ, Deane and McHugh JJ held that those principles applied to the first stage, expressing agreement with the following comments of Kirby P in Golosky v Golosky:[16]
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, maybe no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.
[15] Singer v Berghouse (1994) 181 CLR 201 at 212.
[16] Golosky v Golosky (unreported, in the New South Wales Court of Appeal, 5 October 1993).
This approach was approved by Gummow and Hayne JJ in Vigolo v Bostin.[17]
[17] Vigolo v Bostin (2005) 221 CLR 191 at [82]-[83]. See also Daniel v Van Zwol [2015] SASCFC 38 at [38]-[39].
The defendant appellant accepts the above principles, but contends that the trial judge’s approach miscarried in his treatment of each of the value of the plaintiff’s interest in Knowledge Global, the period of her estrangement from the testator, and the amount of the provision that ought to have been made.
The value of the plaintiff’s interest in Knowledge Global
The defendant contends that the trial judge erred in finding that the plaintiff had made full and frank disclosure of her interest in Knowledge Global. The defendant also contends that the trial judge erred in finding that Knowledge Global had only a modest value, and that it was at best speculative that it could provide any sustainable income or asset base for the plaintiff’s future needs.
So far as disclosure is concerned, the plaintiff did disclose the fact of her interest in Knowledge Global in her affidavit in lieu of a pleading. She also provided disclosure of the company’s unaudited financial statements and its taxation returns. However, the defendant complains that the plaintiff did not identify or assert any particular value for the company, or set out the basis upon which a valuation could take place. Nor did she provide any valuation of the company, or her interest in that company.
In support of an obligation to make disclosure, and in particular an obligation going beyond the mere disclosure of relevant documents and extending to disclosure of material facts, the defendant relied upon Jenkins v Livesey.[18] In that case, the Court was required to consider the exercise of its discretion to order financial provision and property adjustment between the parties to a marriage under s 23 of the Matrimonial and Family Proceedings Act 1984 (UK). Under s 25 of that Act, it was the duty of the Court when making such an order to have regard to all the circumstances of the case, including various identified matters relating to the financial position and circumstances of the parties. In allowing the appeal, and overturning an order, on the basis of the wife’s failure to disclosure her engagement to remarry, Lord Brandon said the following of the parties’ obligation of disclosure:[19]
I stated earlier that, unless a court is provided with correct, complete and up-to-date information on the matters to which, under section 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection. It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.
[18] Jenkins v Livesey [1985] AC 424 at 437.
[19] Jenkins v Livesey [1985] AC 424 at 437-438.
I accept that the nature of the present proceedings was such that the plaintiff owed an equivalent obligation of disclosure. Indeed, I do not understand the plaintiff to contest that this was so. The issue is the practical content of this obligation in the facts and circumstances of the present set of proceedings.
The defendant’s complaints about the adequacy of the plaintiff’s disclosure focused upon her failure to disclose a 2005 valuation that had been carried out, to provide an up-to-date valuation, and to otherwise set out clearly what the asserted value of the company was.
In my view, there is no substance to these complaints. While the plaintiff made reference in her oral evidence to a valuation of the company’s intellectual property that had been carried out in 2005, and gave some answers that suggested it might have supported a significant valuation back at the time it was done, the plaintiff explained why she considered that valuation to have been of no relevance to the value of the company at the date of the testator’s death. The trial judge rejected the defendant’s contention that the plaintiff’s evidence was evasive on this issue, accepting that she was not referring to a valuation in the sense of a formal valuation undertaken by an accountant. Rather, she was referring to a value put on the company at its start-up time, and that was based on technology that had become outdated. As the trial judge noted, the plaintiff had been at pains to point out that it bore little relevance to what the company was worth in today’s terms.
In my view, it has not been established that the plaintiff’s failure to obtain and disclose a copy of the 2005 valuation involved any breach by her of her obligations of disclosure. On the trial judge’s findings, the valuation in question was of merely historical interest and unlikely to have been of any material significance to a determination of the value of Knowledge Global or its assets as at the date of the testator’s death.
In relation to the failure to provide an up-to-date valuation, the plaintiff explained that she had not arranged for a formal valuation to be prepared because she had received a quote that it would cost between $10,000 and $20,000. The trial judge accepted this evidence, and accepted that neither Knowledge Global nor the plaintiff had the funds to commission a report.
I do not consider that the plaintiff had any obligation to obtain a valuation. The significance, if any, of the failure of a plaintiff in a family provision claim to obtain a valuation of a private shareholding will depend upon the nature of the relevant company and the plaintiff’s interest in it. In a case where the plaintiff has a significant interest in a company of significant, but uncertain, worth, then the failure may present an impediment to the plaintiff’s ability to establish a valid claim, or at least to recover in the amount the plaintiff contends he or she is entitled to recover. However, that is not the present case. The trial judge was satisfied on the basis of the information that was disclosed, and that was the subject of oral evidence, that the value of the company was modest at best. In those circumstances, the absence of a formal valuation report as to the precise value of the company was of little or no moment, and did not stand in the way of the trial judge taking the approach he did, and reaching the conclusions he did.
Nor, in the circumstances of this case, do I consider that it was incumbent upon the plaintiff to assert that the company, or her interest in it, had any particular dollar value. It was appropriate and sufficient that she conduct the case on the basis that the value of her interest was modest, and consistent with further provision being made in the amount made by the trial judge.
It is true that on several occasions during the course of her oral evidence the plaintiff asserted that the company was or might be worth between $1 million and $1.5 million. However, as the trial judge explained, when considered in the context of her evidence as a whole, these references were neither intended to be an assertion of the true market value of the company, nor a safe basis for making any finding that the company had a significant value let alone the asserted value. As the trial judge found, these references by the plaintiff were merely expressions of hope by her, given the significant work and money she had invested in her attempt to build the business. More relevant to the true market value of the company was the plaintiff’s evidence as to the difficulties encountered in the business given the changes in technology and the policy environment, the lack of clients and the loss of the major client.
I do not accept that there was any reason in principle or fact that required the trial judge to proceed on the basis that the company was in fact worth $1 million to $1.5 million.
The evidence revealed that in 2012 a parcel of shares in Knowledge Global sold for $100,000. As the trial judge observed, this suggests that the purchaser of those shares considered that the company had some potential. However, I do not consider that this establishes error in the ultimate conclusion as to the limited value of Knowledge Global reached by the trial judge. The trial judge was entitled to rely upon the plaintiff’s evidence as to the difficulties encountered by Knowledge Global in the period leading up to, and since, the testator’s death.
In summary, I do not consider that the plaintiff breached her obligations of disclosure in relation to the value of her interest in Knowledge Global. Further, I do not consider that any error has been established in the trial judge’s approach or conclusion in relation to the value of the plaintiff’s interest in Knowledge Global. I consider that the information upon which the trial judge relied provided a proper basis for his conclusion that the company had only a modest value, and that it was at best speculative that it could provide any sustainable income or asset base for the plaintiff’s future needs.
The period of estrangement
The trial judge explained the relevance of the issue of estrangement in the following terms:[20]
Estrangement of a child and parent should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement. However it is a factor that can be taken into account. The Court should take into account the whole of the circumstances regarding the relationship. It is for the Court to evaluate all the relevant circumstances, including a period of estrangement and the circumstances of that estrangement, when considering the jurisdictional question.
[20] Butler v Tiburzi [2016] SASC 108 at [26].
The trial judge’s statement of principle is consistent with authority.[21] In particular, how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff.
[21] Burke v Burke [2005] NSWCA 195.
The defendant challenges both the trial judge’s conclusions as to the reasons for the period of estrangement or no contact between the plaintiff and the testator, and the use his Honour made of these conclusions at both the first and second stages of the trial judge’s approach.
As to the former, the trial judge held that there was a period of about eight years from 2004 to 2012 when the plaintiff and testator had no contact. His Honour held that this was “largely” the fault of the testator, describing him as a difficult man, and a selfish and controlling man. His Honour accepted that prior to 2004 the plaintiff had initiated the contact between them, and that when she decided to stop initiating contact, he did not make any real attempt to contact her. The period of no contact continued until the plaintiff heard about the testator’s ill health and then initiated a resumption of contact. In making these findings, the trial judge relied primarily, and indeed almost entirely, upon the plaintiff’s evidence.
The defendant’s challenge to these findings is premised upon an asserted failure by the trial judge to give weight to the absence of objective material supporting the plaintiff’s version of events in this respect, the inability of the deceased testator to explain his version of events, and the inability of the Court to second˗guess the testator’s judgment. The defendant contends that in circumstances such as the present, the claim against the estate must be scrutinised carefully, if not require corroboration. The defendant further contends that the trial judge’s failure to consider or afford weight to these matters meant that his Honour’s findings as to the reasons for the period of estrangement were in error.
I accept the need in cases such as the present to ensure that the process of fact-finding is undertaken carefully, having regard to the potential significance of the inability of the deceased testator to challenge many of the factual matters relied upon. However, on the basis of the evidence and reasons in this case, I see no reason to doubt that the trial judge took an appropriately careful approach to the evidence, and in particular the plaintiff’s evidence. It is apparent that the plaintiff’s evidence was tested in cross-examination in several respects. Further, the plaintiff’s evidence as to the testator’s personality traits, which were instrumental to the period of estrangement, was supported in some respects by the evidence of her brother, and the evidence of the testator’s friend, Mr Kotz. The trial judge accepted the evidence of both of these men. The trial judge’s findings that the testator lived a somewhat compartmentalised life were also supported by the evidence of the defendant.
In summary, in the absence of any particular challenge to the trial judge’s findings on the issue of estrangement, I do not consider there is any basis for interfering with them, and do not propose to do so.
Turning then to the use made of those findings, the defendant’s first complaint is that the trial judge did not have regard to the issue of estrangement at the second stage of the process. In support of this complaint, the defendant relies upon the structure of the trial judge’s reasons, and in particular the fact that his Honour’s treatment of that issue appears prior to his conclusion in relation to the jurisdictional question, and that his Honour did not thereafter make any specific reference to the issue.
I do not accept this first complaint. While the trial judge did not make specific mention of the issue of estrangement in his reasons addressing the second stage of the process, his Honour did make it plain that in addition to the plaintiff’s financial circumstances, “[a]ll the other matters referred to are relevant in deciding this question”[22]. It is also relevant that earlier in his reasons, immediately after explaining the relevance of estrangement to the jurisdictional question, the trial judge observed that the second stage involved similar considerations, with the assessment of the relevant considerations at the first stage often having a large influence upon the order that should be made at the second stage.
[22] Butler v Tiburzi [2016] SASC 108 at [204].
In the above circumstances, I am not satisfied that the trial judge overlooked the issue of estrangement at the second stage of the process.
The second complaint made by the defendant is that the trial judge attached inadequate weight to the issue of estrangement, or alternatively overlooked the significance of the deceased’s testamentary freedom.
The trial judge did not make express mention of the testator’s testamentary freedom in the context of his consideration of the period of estrangement. However, I do not consider that he was obliged to do so. I do not consider that there is anything in his Honour’s reasons, or the conclusions and outcome that he reached, that suggests he overlooked this matter. Indeed, the section of his reasons addressing the competing moral claim of the defendant was headed ‘Freedom of testamentary disposition – competing moral claims’.
While it is apparent from the extent of the provision made that the trial judge did not attach much weight to the period of estrangement, this was consistent with his findings as to the limited period of the estrangement and the reasons for it. In the circumstances, the defendant’s complaints about his Honour’s approach to both the issue of estrangement and the testator’s testamentary freedom are complaints merely about the weight afforded to those matters. They are not complaints of error within the meaning of House v The King.[23]
[23] Durham v Durham (2011) 80 NSWLR 335 at [53] per Tobias JA, at [72] per Campbell JA and at [87] per Young JA.
The further provision ordered by the trial judge
The plaintiff challenges the trial judge’s order for further provision of $725,000 on two bases. The first is that his Honour failed to give adequate reasons. The second is that the trial judge’s discretion miscarried in that, on the factual findings made by his Honour, the provision made was unreasonable or plainly unjust.
In challenging the adequacy of the trial judge’s reasons, the defendant commenced by noting the general obligation of a judge to give adequate reasons for a decision, and in particular to articulate the essential ground or grounds upon which the decision rests.[24] The defendant acknowledged that in the context of the second stage of an application for further provision, it has been held that reasons for an appropriate provision need not be “fully articulated”,[25] and that the amount of the provision need not be “calculated in an arithmetic sense”.[26] However, the basis for the amount provided should at least be stated in “broad terms”.[27]
[24] Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269, 280.
[25] Grey v Harrison [1997] 2 VR 359 at 366-367.
[26] Blair v Blair (2004) 10 VR 69 at [30].
[27] Blair v Blair (2004) 10 VR 69 at [30].
The defendant complains that the trial judge did not, even in broad terms, explain how he arrived at the amount of $725,000 (out of the $1.4 million that was available for distribution).
The trial judge’s ultimate conclusion was expressed in relatively concise terms. I have set out the operative paragraphs earlier in these reasons. While concise, those paragraphs make it plain that his Honour took into account the plaintiff’s difficult financial circumstances, her age, her significant and longstanding health issues, and the likelihood that she would be reliant upon the aged pension. His Honour also expressly took into account the defendant’s competing moral claim.
Of course, the trial judge’s reasons must be read as a whole. The detail of his Honour’s findings emerge from a reading of those reasons as a whole. Against that background, it was entirely appropriate that the trial judge express his ultimate conclusion in the relatively concise terms that he did. Each of the relevant considerations was mentioned, and each must be understood as carrying with it the detail of the findings and discussion contained earlier in the trial judge’s reasons. In my view, nothing further was required of the trial judge by way of reasoning. There was no need for his Honour to have embarked upon any breakdown of the amount awarded.
It follows that I do not accept the defendant’s complaint in relation to the adequacy of the trial judge’s reasons. I consider that the trial judge’s reasons for the amount he awarded by way of further provision were adequate.
Finally, as to the complaint that the amount awarded was unreasonable, or outside the range of awards that would have been reasonable or appropriate, the defendant contends that the amount awarded appears to give no weight whatsoever to the principle of not rewriting the testator’s will, but rather amounts to a substitution of the Court’s view of the matter for that of the deceased. I do not agree. In my view, bearing in mind all of the relevant considerations – as identified by the trial judge, and explained in the detail of his reasons – the amount awarded was within the range of awards that might reasonably have been made.
In short, there was a significant sum available ($1.4 million), and it was appropriate that the plaintiff receive a substantial award to reflect her difficult financial position, and the difficulty she was likely to have in providing for herself given her advancing age and health difficulties. I do not think the period of estrangement, given its limited duration and the reasons for it, was a significant factor in the scheme of things. The defendant was entitled to have her moral claim recognised, but even after the trial judge’s award of further provision to the plaintiff there will remain a substantial proportion of the estate available to her. It was obviously a matter for the trial judge to determine the particular weight to be attached to each of the above considerations. The amount awarded is within the range of awards that might reasonably have been made.
Conclusion
For the reasons set out, I would dismiss the appeal.
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