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Wall v Crane

Wall v Crane

Case [2009] SASC 382 16 December 2009

Contract Formation

Failure to Provide for Dependents

Unconscionable Conduct

Succession Law

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SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Civil)

In the Estate of KEITH CHANDLER CRANE

WALL v CRANE & ORS

[2009] SASC 382

Judgment of The Honourable Justice White

16 December 2009

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - DUTY OF TESTATOR

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION

Claim by plaintiff under the Inheritance (Family Provision) Act 1972 (SA) ("the Act") - plaintiff and the first and second defendants are the children of the testator - plaintiff estranged from testator - testator made provision for only the first and second defendants.
Separate claim under the Act by the third defendant - third defendant a child of the first defendant - third defendant living in impecunious circumstances - first defendant not providing in a significant way for the upkeep of the third defendant.
Whether inadequate provision made for the plaintiff in all the circumstances of the case - whether third defendant has a moral claim on the testator's estate.
Held: Testator made inadequate provision for plaintiff - provision for the plaintiff to be paid out of the residuary estate - burden to be met from the residuary estate and to be borne by the first and second defendants in equal shares - third defendant has a valid moral claim on the estate - provision to be paid from the first defendant's share of the residue.
Inheritance (Family Provision) Act 1972 (SA) s 7; Family Provision Act 1982 (NSW); Land and Business Agents Act 1973 (SA), referred to.
Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Worladge v Doddridge (1957) 97 CLR 1; Hughes v National Trustees Executors & Agency Company of Australasia Ltd (1979) 143 CLR 134; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; In the Estate of Puckridge (1978) 20 SASR 72, applied.
In re Wright, Willis v Drinkwater [1954] NZLR 630; Re Horton [1976] 1 NZLR 251, distinguished.
In re Izard, Hunt v Castle [1954] NZLR 234; Bowyer v Wood (2007) 99 SASR 190; McCosker v McCosker (1957) 97 CLR 566, considered.

In the Estate of KEITH CHANDLER CRANE
WALL v CRANE & ORS
[2009] SASC 382

Civil

WHITE J: Keith Crane (the testator) died on 22 October 2002. His wife, Dorothea, had predeceased him. The testator and Dorothea had two sons and two daughters: the two defendants David and Kevin; the plaintiff (Jennifer); and Barbara. These proceedings commenced as claims by Jennifer and Barbara for provision from the testator’s estate under the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act). However, Barbara discontinued her claim.
On 24 January 2008, a separate claim under the IFP Act was made by Andrew Shepherdson. Andrew was born in August 1999 and is 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 Wall v Crane

Details

AGLC: Wall v Crane [2009] SASC 382
Case: [2009] SASC 382
Decision Date: 16 December 2009

CaseChat Overview and Summary

In the matter of Wall v Crane, the plaintiff, who is estranged from the deceased, brought a claim under the Inheritance (Family Provision) Act 1972 (SA) ("the Act") against the two other children of the deceased who inherited from the estate. The plaintiff argued that the deceased had failed to make sufficient provision for her in his will, which only mentioned the other two children. Separately, a grandchild of the deceased, who is also a child of one of the defendants, brought a claim under the Act, asserting that she was not being provided for by her father, who had inherited from the estate.

The court was required to determine whether the deceased had made sufficient provision for the plaintiff under the Act, and if the plaintiff was left with insufficient provision for her maintenance, support, and education. The court also needed to consider the claim of the grandchild, assessing whether the deceased's estate should provide for her needs, given that her father had inherited from the estate but was not providing for her.

The court found that the deceased had indeed made insufficient provision for the plaintiff, considering her estrangement and the testator's failure to make any provision for her in his will. Regarding the grandchild's claim, the court determined that the first defendant was not providing in a significant way for the upkeep of the grandchild, and thus the estate should provide for her needs. The court held that the deceased had a duty to make provision for the plaintiff and the grandchild, and the estate should be adjusted to reflect this.

The court ordered that the estate be adjusted to provide for the plaintiff and the grandchild, with specific amounts allocated to each of them. The first and second defendants were ordered to pay the plaintiff and the grandchild their respective shares from the estate.

Orders