Webb v Smith - [2000] TASSC 81

[2000] TASSC 81

CITATION: Webb & Anor v Smith & Anor [2000] TASSC 81

PARTIES: WEBB, Peter David

WEBB, Paul Nigel
v
SMITH, Roger Clitheroe
HARRISON, John Fisher

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M 81/1999
DELIVERED ON:  30 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  4, 24 May 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicants:  T J Williams
           Respondents:  K L Mooney
Solicitors:
           Applicants:  Gunson Pickard & Hann
           Respondents:  Butler McIntyre & Butler

Judgment Number: [2000] TASSC 81
Number of Paragraphs: 8

Serial No 81/2000
File No M 81/1999

PETER DAVID WEBB and PAUL NIGEL WEBB v
ROGER CLITHEROE SMITH and JOHN FISHER HARRISON

REASONS FOR JUDGMENT SLICER J
30 June 2000

The respondents are executors of the Estate of Barbara Alice Webb, the mother of the applicants. By her will the testatrix bequeathed the residue of her estate to the applicants and their sister Fiona Elizabeth Webb in equal shares. The beneficiaries are in dispute in relation to a number of issues, including the disposition of certain assets said to form part of the estate. The stated value of the estate is in the vicinity of $185,000, although it is likely that at trial the applicants will contend that certain property ought be included (at least in a notional sense) in the value of the estate.

The applicants are in a more secure and advantageous economic position than their sister. They have commenced proceedings pursuant to the provisions of the Testators Family Act 1912 ("the Act") contending that they had "been left without adequate provision for their proper maintenance and support". That application might permit the sons of the testatrix to argue that certain assets and dealings involving Fiona Webb and the testatrix ought be taken into account in the determination of respective entitlements.

The primary application was made on 8 April 1999 and in accordance with procedural requirements was served on Fiona Webb as an interested party, who in turn entered an appearance on 27 May 2000. Assuming that the applicants establish entitlement, the question for the Court will be to consider apportionment of the estate as between the three parties. That issue will require consideration of the share to be allocated to Ms Webb. Following the filing of the entry of appearance, various interlocutory and pre-trial hearings were conducted by the court.

On 16 December 1999 Ms Webb made an application which relevantly sought orders:

"1That the Application filed on behalf of the Applicant's [sic] in this matter on the 8^th day of April 1999 be regarded as an application made on behalf of all persons who are entitled under the Act to make such an application in accordance with the provisions of section (4) of the Testators Family Maintenance Act 1912.
2That the Affidavit filed in response to the Application sworn on the 15^th day of December, 1999 by Fiona Street be treated as an Affidavit filed in support of her Application."

The applicants oppose…

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 Webb v Smith

Details

AGLC: Webb v Smith [2000] TASSC 81
Case: [2000] TASSC 81
Decision Date: 30 June 2000

CaseChat Overview and Summary

In the matter of Webb and Anor v Smith and Anor, the applicants, Peter David Webb and Paul Nigel Webb, sought to contest the distribution of the estate of their late mother, Barbara Alice Webb, which was valued at approximately $185,000. The respondents, Roger Clitheroe Smith and John Fisher Harrison, as executors of the estate, were in dispute with the applicants over the disposition of certain assets and the interpretation of the will. The applicants, who were in a more secure economic position than their sister, Fiona Elizabeth Webb, sought an application under the Testators Family Maintenance Act 1912, contending that they had been left without adequate provision for their proper maintenance and support.

The primary legal issue that the Supreme Court of Tasmania was required to decide was whether Fiona Elizabeth Webb's application to include herself as a party to the proceedings should be treated as an application made on behalf of all persons who are entitled under the Act to make such an application. The applicants opposed this application, arguing that it was an attempt by Fiona to enhance her position in the estate distribution. The Court needed to consider the principles governing an application for an extension of time as permitted by the Act, s11(2), including reasons for delay, prejudice, and conduct, in the context of this interlocutory application.

The Court determined that the interlocutory application should be granted. The Court found that there had been no delay in raising the substantive question and that the granting of the interlocutory application would not result in any significant prejudice to the applicants. Additionally, the granting of the interlocutory application would not affect the nature or extent of the evidence already comprised in the respective affidavits of the parties. Therefore, the interlocutory application dated 16 December 1999 was granted, and the Court would consider the necessary ancillary orders at a later stage.

The final orders of the Court included granting Fiona Elizabeth Webb's application to be included as a party to the proceedings and allowing the applicants the opportunity to make submissions in relation to any necessary ancillary orders. The Court's decision aimed to ensure that all parties involved in the estate distribution were fairly considered and that the legal principles governing the application process were properly applied.

Orders