Wenham v Wenham

Case [2023] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

WENHAM v WENHAM & ORS

[2023] SASC 89

Judgment of the Honourable Justice Kimber  

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - PRINCIPLES OF EXERCISE OF DISCRETION

This is an application pursuant to s 7 of the Inheritance (Family Provision) Act1972 (SA) seeking further provision out of an estate. The applicant and the second and fourth respondents are the sons of a testator who left to them the residue of his estate. The applicant contends that he has been left without adequate provision for his proper maintenance or advancement in life.

The application is dismissed.

Held:The applicant has not established that he has been left without adequate provision for his proper maintenance or advancement in life.  

Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
McCosker v McCosker (1957) 97 CLR 566; Vigolo v Bostin (2005) 221 CLR 191; Bowyer v Wood (2007) 99 SASR 190; Taylor v Farugia [2009] NSWSC 801; MacGregor v MacGregor [2003] WASC 169; Carter v Brine [2015] SASC 204; Worladge v Doddridge (1957) 97 CLR 1, applied.

WENHAM v WENHAM & ORS
[2023] SASC 89

Civil

KIMBER J: 

  1. On 25 September 2021, Bruce Wilton Wenham (the testator) passed away.  The testator was survived by his three adult sons. 

  2. By his will made on 11 March 2020, the testator left the residue of his estate to his sons in three equal parts.  The three sons are Christopher Bruce Wenham (the applicant and fifth and sixth respondent, as Executor and Beneficiary of the estate respectively), Kym Thomas Wenham (the first and third respondent, as Executor and Beneficiary of the estate respectively) and Rodney Glen Wenham (the second and fourth respondent, as Executor and Beneficiary of the estate respectively).  I will refer to the three sons by their Christian names.  I mean no disrespect in doing so. 

  3. Christopher has made an application pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the Act) seeking further provision out of the estate.  That application is opposed by Kym and Rodney. 

  4. The estate is comprised as follows:

Asset and/or Liability

Value

Retirement village accommodation

$206,896.00

Bank accounts

$292,882.62

Life insurance policy

$25,855.50

Share portfolio

$754,276.33

Liabilities

$563.70

  1. The total value of the estate at the time of death was about $1,279,346. 

    The legal test

  2. Christopher, being a biological child of the testator, is an eligible plaintiff under s 6 of the Act. Christopher bears the onus of satisfying the Court on the balance of probabilities that the claim is justified. Applications for family provision in estate matters are governed by s 7 of the Act which provides:

    (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…

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AGLC
Wenham v Wenham [2023] SASC 89
Case
[2023] SASC 89
Decision Date

CaseChat Overview and Summary

The case of Wenham v Wenham involved a dispute concerning the distribution of an estate under the Family Provision Act 1969 (SA). The deceased, Rodney Wenham, had left an estate to his wife and their son, Christopher Wenham, with Christopher seeking additional provision for his maintenance and advancement in life. The South Australian Supreme Court was tasked with determining whether Christopher had been left without adequate provision for his proper maintenance, education or advancement in life, as stipulated by the Act.

The central legal issues in the case were whether Christopher had been left without adequate provision for his maintenance and advancement in life, and if so, whether the Court should exercise its discretion to make an order for further provision. The Court had to objectively assess the adequacy of the provision made to Christopher by considering all relevant circumstances, including his age, financial position, lifestyle, and the size and nature of the estate. The Court was required to place itself in Rodney's position and make its own objective assessment based on the facts as they existed at the time of Rodney's death.

The Court found that Christopher had not satisfied the burden of proving that he was left without adequate provision for his proper maintenance and advancement in life. Despite Christopher's assets at the time of Rodney's death amounting to approximately $350,000, including superannuation and property equity, the Court noted that Christopher had a mortgage debt of about $90,000. Moreover, Christopher's share of the estate was around $420,000, which he could have used to discharge his mortgage, leaving him with about $330,000 from his estate share to apply to living expenses, in addition to his superannuation. The Court concluded that Christopher's financial position, considering his assets, income, and potential future expenses, was sufficient to meet his needs. Therefore, the application for further provision was dismissed.

In conclusion, the Court did not find it necessary to exercise its discretion to make an order for further provision for Christopher. The Judge stated that the parties would be heard regarding any further orders that might be appropriate. The Court's decision was based on the objective assessment of the facts and circumstances as they existed at the time of Rodney's death, finding that Christopher had not been left without adequate provision for his proper maintenance and advancement in life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Carter v Brine,[9] Blue J described the role of the Court in the following way: [9] [2015] SASC 204.The question whether by reason of the testator’s testamentary dispositions the claimant has been left without adequate provision for his or her proper maintenance, education or advancement in life is a question of fact involving the exercise of value judgements. The question is to be determined objectively by the Court and not by reference to the subjective knowledge, beliefs or intentions of the testator.The question is to be determined as at the date of death by reference to the objective facts then existing including prospective future expectations and contingencies foreseeable as at the date of death: it is not appropriate to determine this question retrospectively with the wisdom of hindsight or by reference to the objective facts existing at the date of trial. The Court assesses the position by placing herself in the testator’s position and making its own objective assessment by reference to objectively proved facts and circumstances in existence as explained above as at the date of death.The words “adequate” and “proper” in the composite phrase “adequate provision for his proper maintenance, education or advancement in life” are both relative. This requires an examination of all relevant circumstances. Factors to be assessed and weighed relative to other factors include but are not limited to:·the age, condition, general situation and other factors relating to the claimant;·the needs of the claimant and the lifestyle and standard of living to which the claimant has become accustomed;·the claimant’s capacity and resources to meet those needs, lifestyle and standard of living;·the relationship between the testator and the claimant;·the nature, extent and character of the estate; ·the relationship between the testator and other persons for whom the testator provided or having claims against the estate;·other claims against the estate.When considering the claimant’s “needs” and the lifestyle and standard of living to which the claimant has become accustomed, the Court does not make an assessment in absolute terms of what a person needs to survive or even to live comfortably but a relative assessment by reference to the claimant’s history and circumstances and all other relevant factors including those identified above.[10](Footnotes omitted)[10] Ibid, [591]-[594].The evidence There is no dispute about any relevant aspect of the evidence. The circumstances of Christopher and gifts during the life of the testator The evidence of Christopher was that he sought additional provision so that he ‘did not have to worry about things like aged pension and things like that in the future, that’s all’. Christopher is 65 years of age. He has no dependents. The evidence is the life expectancy for a male in South Australia is about 80 and a half years. There is no evidence Christopher has any current medical issues. As a young man he undertook study as a draftsman and received some financial support from his parents during part of that study. Christopher was married but separated from his ex-wife in 2001. During the marriage, his ex-wife had a gambling problem which diminished the assets of the marriage. The marital home was eventually sold in 2007. From the sale of that property, Christopher received $100,000. His ex‑wife received about $30,000.

Decision

Reasons for decision

In all the circumstances, Christopher has not met his burden of establishing that he was left without adequate provision for his proper maintenance and advancement in life. It follows that it is not necessary to consider what has been referred to as the second stage. Conclusion I dismiss the application of Christopher. I will hear the parties as to any further orders which might be appropriate.

Ratio Decidendi

Legal Principle Established

Rodney is 68 years of age. His wife has an annual income of about $175,000 and he intends to retire in the very near future. Having made a recent gift of $200,000 to their son, Rodney and his wife have combined assets of about $1,447,000. The first stage – consideration As set out above, this stage calls for a determination of whether Christopher has been left without adequate provision for his proper maintenance, education and advancement in life. The issues in this case are maintenance and advancement. What is required is an application of the facts to a legal criterion, albeit one which involves value judgments by the Court. It is a question to be determined at the date of the death of the deceased. The question is to be determined objectively. Bearing in mind that it is common ground that there was nothing in the relationship between the applicant and the testator which might be relevant to the issues, all the circumstances of the case must be considered. Christopher does not contend that he has any special needs. I must have regard to, among other things, the size and nature of the estate, age, condition and general situation of Christopher including his financial position and the lifestyle and standard of living to which he has become accustomed. At this first stage it is for Christopher to establish the breadth of the testator’s moral obligation to him and his financial need. While the matter is finely balanced, Christopher has not satisfied me on the balance of probabilities that he has been left without adequate provision for his proper maintenance and advancement in life. My reasons follow. At the time of the testator’s death, the total value of the estate was about $1,279,346. At about the same time, the applicant had assets of approximately $350,000 made up of about $250,000 in superannuation, cars valued at about $80,000 and equity of about $20,000 in the property at Hawker. That is not the complete picture of Christopher’s asset position at the time of the testator’s death. There was debt of about $90,000 at that same time, being the mortgage on the house. There is no evidence that Christopher has a particular need for more than one vehicle, other than in the event of people visiting him at Hawker. However, Christopher gave no evidence of how likely such visits might be, nor of why any visitors might need him to provide transport. At the time of the death of the testator, the share of the estate to which Christopher was entitled under the will was about $420,000. Had Christopher used that share of the estate to discharge his mortgage, he would have had about $330,000 from his share of the estate to apply to the living expenses not met by his income. In that event, Christopher would also still have had about $250,000 in superannuation. The evidence of Christopher’s weekly expenses closest to the death of the testator is $1200 per week, but it must not be overlooked that, as has occurred, expenses at the time of death may be expected to increase.