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 89Civil
KIMBER J:
On 25 September 2021, Bruce Wilton Wenham (the testator) passed away. The testator was survived by his three adult sons.
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.
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.
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
The total value of the estate at the time of death was about $1,279,346.
The legal test
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 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
Decision
Reasons for decision
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.