Turner v Perpetual Trustees Australia Ltd - [2001] ACTSC 56

ROBERT JOHN NORMAN TURNER v PERPETUAL TRUSTEES AUSTRALIA LIMITED [2001] ACTSC 56 (15 June 2001)

CATCHWORDS

PROBATE – Family Provision Act 1969 (ACT) – plaintiff seeking provision from estate of testator for his “maintenance, education or advancement in life” – regard to be had to the totality of the relationship – whether absolute grant appropriate.
EVIDENCE – s 22(1) Family Provision Act 1969 (ACT) - admissibility of testator’s oral and written statements – limitations on such evidence.

Family Provision Act 1969 (ACT), s 8, s 11, s 22
Family Provision Act 1982 (NSW), s 11
Administration and Probate Act 1958 (Vic), s 91
Trustee Act 1925 (NSW), s 45

Trustee Act 1957 (ACT), s 8

Singer v Berghouse (1994) 181 CLR 201
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Re G Hall (Deceased) (1930) 30 SR (NSW) 165
Chapman v Elders Trustee and Executor Co [1971] SASR 63
Brown v Brown (unreported, Eames J, Supreme Court of Victoria, 7 July 1995)
Re Fulop deceased (1987) 8 NSWLR 679
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Dennis (deceased) [1981] 2 All ER 140
Re Abram (deceased) [1996] 2 FLR 379
Hoadley v Hoadley, (unreported, New South Wales Supreme Court, Young J, 17 February 1987)

No. SC 165 of 1999

Judge: Gray J
Supreme Court of the ACT

Date: 15 June 2001

IN THE SUPREME COURT OF THE     )
   )           No. SC 165 of 1999
AUSTRALIAN CAPITAL TERRITORY            )

BETWEEN: ROBERT JOHN NORMAN TURNER
Plaintiff

AND: PERPETUAL TRUSTEES AUSTRALIA LIMITED
Defendant

ORDER

Judge:   Gray J
Date:   15 June 2001
Place:   Canberra

THE COURT PROPOSES TO ORDER THAT:

Pursuant to s 11 of the Family Provision Act 1969 (ACT),an amount of $30,000 by way of a legacy to the plaintiff and an amount of $450,000 by way of capital be held on trust by the executor of the estate (if that trustee is willing to act or such other if not) for the period of the plaintiff’s life.
The income be held on protective trusts for the plaintiff’s life on condition that when the trust comes to an end any capital then remaining be divided as to one half to Jennifer Cole or her descendants and as to the remaining one half equally to John Douglas and Gerald Raymond Solomon or their descendants.
All costs be paid out of the estate.

This is an application pursuant to s 8 of the Family Provision Act 1969 (ACT) (the Act). The plaintiff, Robert John Norman Turner, seeks an order for provision out of the estate of his father, David Roy Jephson Turner, who died on 13 March 1998. The plaintiff was born on 28 July 1973. He is the only child of the deceased. His father divorced his mother in 1975 after some two years of marriage. Probate of his father’s will dated 27 May 1994 was granted on 24 June 1998. The will appointed 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.

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Details

Case: [2001] ACTSC 56
Decision Date: 15 June 2001

CaseChat Overview and Summary

The case of Turner v Perpetual Trustees Australia Ltd involved a claim by the plaintiff, seeking provision from the estate of the deceased for his maintenance, education, or advancement in life under the Family Provision Act 1969. The dispute centred on whether the executors of the estate should provide such a provision, given the totality of the relationship between the plaintiff and the deceased. The case was heard and determined in the ACT Supreme Court.

The primary legal issue before the court was the interpretation and application of the Family Provision Act 1969, specifically regarding the admissibility and weight of the deceased's oral and written statements. The court had to determine whether these statements should be considered in assessing the plaintiff’s claim and, if so, what weight they should carry. The court also needed to consider the overall relationship between the parties to determine whether an absolute grant was appropriate.

The court found that the deceased's statements, both oral and written, were admissible under section 22(1) of the Family Provision Act 1969. However, these statements should be considered in the context of the entire relationship and not given undue weight. The court emphasised the importance of the totality of the relationship in making its decision. It concluded that the deceased’s statements indicated a strained relationship, which factored into the decision not to grant an absolute provision to the plaintiff. Instead, the court made an order for a lesser provision.

The court ordered that the plaintiff was to receive a provision from the estate, though it was not an absolute grant. The amount and specific terms of the provision were detailed in the final order, reflecting the court's balanced consideration of the evidence and the relationship between the parties.

Orders