Valerie Constance Chapman v Mark Seton Chapman - [2004] ACTSC 121

VALERIE CONSTANCE CHAPMAN v MARK SETON CHAPMAN and OTHERS [2004] ACTSC 121 (22 November 2004)

WILLS – Family provision – application by separated wife – substantial contributions made by deceased after separation – adequate provision made.

Family Provision Act 1969, s 7

Hackett v Public Trustee (unreported, Higgins J, Supreme Court of the ACT, 2 May 1997)

Singer v Berghouse (1994) 181 CLR 201

Byrne v Byrne [2000] NSWCA 168

Bladwell v Davis [2004] NSWCA 170

In the matter of the Will of Michael Lewkowicz [2001] ACTSC 54

The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

No SC 444 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 22 November 2004

IN THE SUPREME COURT OF THE       )
  )          No SC 444 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:VALERIE CONSTANCE CHAPMAN
Plaintiff

AND:MARK SETON CHAPMAN and GEOFFREY JOHN CHAPMAN executors of the Will of EDWARD CHARLES CHAPMAN
First Defendants

AND:DONGMEI YANG
Second Defendant

ORDER

Judge:  Connolly J
Date:  22 November 2004
Place:  Canberra

THE COURT ORDERS THAT:

The application be dismissed.

The costs of the application be borne by the estate.

This is an application pursuant to s 7 of the Family Provision Act 1969 (the Family Provision Act) for a declaration that the plaintiff/applicant, Valerie Constance Chapman, is entitled to provision out of the estate of Edward Charles Chapman (the deceased), who died on 28 July 2001. The plaintiff married the deceased on 2 May 1953. There are two sons of the marriage, Mark Chapman and Geoffrey Chapman, who are the executors of their father’s estate. It is common ground that the marriage became difficult in the late 1970’s, and that the deceased had an affair with another woman, and left the matrimonial home in Canberra in about 1979. Despite living in separate homes and in separate cities since 1994 when the plaintiff moved to Sydney to be near her son and his family, they never divorced, and the plaintiff remained the legal wife of the deceased. They remained in contact on good terms and the deceased maintained a good relationship with his sons. During the 1990’s the deceased formed a de facto relationship with Ms Dongmei Yang, and in his will he left the bulk of his estate to her, leaving only one item of furniture to the plaintiff.

The plaintiff, feeling perhaps understandably aggrieved, has commenced these proceedings. She commenced proceedings in this Court and in New South Wales, but the New South Wales proceedings were, by order of that Court on 9 September 2003, transferred to this Court for determination.

There is no question that the plaintiff, still being the legal wife of the deceased at the time of his death, is eligible to bring a claim pursuant to the Family Provision Act. This legislation, in common with testators’ family maintenance legislation in other Australian States and Territories, allows a court to make orders that a person not provided for in a will, be…

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: [2004] ACTSC 121
Decision Date

CaseChat Overview and Summary

Valerie Constance Chapman brought an application under s 7 of the Family Provision Act 1969, seeking a declaration that she is entitled to provision out of the estate of Edward Charles Chapman, who died on 28 July 2001. Chapman and the applicant married in 1953, and although they separated in 1979, they never divorced, and she remained the legal wife of the deceased at the time of his death. The deceased left the bulk of his estate to his de facto spouse, Dongmei Yang, and left the plaintiff one item of furniture. The plaintiff argued that she was entitled to be provided for as the widow and sought a declaration that she was not adequately provided for. The defendant, Yang, argued that the deceased had arranged his affairs so that the plaintiff was adequately provided for and should not be seen as a person in need. The court found that the deceased had made substantial contributions to the plaintiff after their separation, both by way of a lump sum gift in 1993, and by ensuring that the plaintiff would benefit by way of an ongoing superannuation pension. The court held that the deceased had exercised his freedom of testamentary disposition in the knowledge that he had through his life made adequate provision for his widow, despite living separately from her since 1979, and in the knowledge that she would receive his superannuation entitlements. In these circumstances, the court was not satisfied that the plaintiff had established that the court should intervene to re-write the will to provide her with additional benefits.

The court dismissed the application and ordered that the costs of the application be borne by the estate.

Orders