Tiburzi v Butler

Case [2017] SASCFC 89

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…

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Tiburzi v Butler [2017] SASCFC 89
Case
[2017] SASCFC 89
Decision Date

CaseChat Overview and Summary

The appeal concerned a challenge to an order for further provision made from the estate of a testator who died in April 2013. The testator, aged 88, left a will in February 2013 bequeathing $50,000 to each of his two children, the plaintiff daughter and her brother, and the residue of his estate, valued at approximately $1.4 million, to the defendant, who was not a family member but had developed a close relationship with the testator. The plaintiff sought further provision from the estate, which the trial judge granted. The defendant appealed this decision, raising several grounds of error concerning the trial judge's findings on the plaintiff's interest in a company, the period of estrangement between the plaintiff and the testator, the adequacy of the reasons for the further provision, and the overall reasonableness of the amount ordered.

The central legal issues before the Full Court were whether the trial judge erred in his findings of fact and his application of the law in determining that the plaintiff had been left without adequate provision for her proper maintenance, education, or advancement in life, and consequently, whether the provision ordered was appropriate. Specifically, the court had to consider the significance of the plaintiff's difficult childhood, her work history, her financial circumstances, her health, and the estrangement between her and the testator, in light of the competing claims on the estate and the testator's testamentary intentions.

The court applied the two-stage process established by section 7 of the relevant Act for family provision claims. The first stage requires determining if the applicant has been left without adequate provision for their proper maintenance, education, or advancement. This involves considering all circumstances, including competing claims, the family's standard of living, the applicant's needs, and the size of the estate. The second stage, if the first is satisfied, involves determining the appropriate provision. The court noted that the term "proper" in this context is crucial, requiring an assessment of what is appropriate in all the circumstances, reflecting the testator's duty as a wise and just parent. The appeal grounds challenged the trial judge's findings on these matters, particularly regarding the plaintiff's financial interests and the impact of the estrangement on the assessment of her needs and the testator's obligations.

Orders

Orders of the court

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Background

Background to the litigation

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); and4. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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