Wenham v Wenham

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:

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 is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
Section 7(1) of the Act requires a two-stage process. The first stage, sometimes referred to as the jurisdictional question, calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life. That determination is made as at the death of the testator. The second stage, which only arises if the first stage is determined in favour of the applicant, requires the Court to determine what provision ought to be made for the applicant out of the testator’s estate. The second stage involves a judicial discretion but taking into account similar considerations to those relevant to the first stage. At the second stage, the determination is made at the date of any order made by the Court.
In McCosker v McCosker,[1] Dixon CJ and Williams J described the first stage, and in particular the role of the concepts of ‘adequate’ and ‘proper’ at this stage, in the following terms:[2]
As the Privy Council said in Bosch v Perpetual Trustee Co (Ltd)… the word “proper” in this collocation of words is of considerable importance. It means “proper” in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator’s ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator’s testamentary dispositions to the necessary extent.
[1] McCosker v McCosker (1957) 97 CLR 566.
[2] Ibid, 571.
The concept of ‘advancement in life’ extends to a person’s adult years.[3] Thus, for example, where an adult child of a testator falls on hard times, and where there are assets available, it may be proper to provide for a buffer against contingencies, including a lack of superannuation funds.[4] Similarly, an adult child’s lack of reserves to meet the demands of advancing years, particularly of ill health, is a relevant consideration.[5]
[3]    Bowyer v Wood (2007) 99 SASR 190, 204.
[4]    Taylor v Farrugia [2009] NSWSC 801, [58].
[5]    MacGregor v MacGregor [2003] WASC 169, [182].
In Vigolo v Bostin,[6] the majority of the High Court held that when the jurisdictional question was being considered, a court could have regard to considerations of a moral claim and moral duty. These are considerations that connect the general, but value-laden, language of the statute to community standards and give it practical meaning.[7] However, a moral claim cannot be a claim founded upon considerations not contemplated by the Act, and a court should not rewrite the will simply by reference to notions of fairness.[8]
[6] (2005) 221 CLR 191.
[7] Bowyer v Wood (2007) 99 SASR 190, 204 [44].
[8] Worladge v Doddridge (1957) 97 CLR 1, 12.
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.
Christopher has a modest income. Christopher’s primary income is from the Department of Education. He is contracted to provide ground keeping services to two schools, work he has done for about 25 years. Christopher works 25 hours a week for the Department of Education. He currently receives, on average, about $700 per week. Christopher also undertakes some weekend work in landscape maintenance for a building company. In July 2022, for that work, Christopher received about $120 per week. He currently receives about $80 per week for that work. Christopher has some expenses with respect to equipment for the landscaping work. Christopher’s evidence was that his current income is $38,000 per annum, being about $36,000 from the Department of Education and about $2,000 from the weekend work. In the year ending 30 June 2018, his taxable income was $60,130. In the year ending 30 June 2019, his taxable income was $25,321. In the year ending 30 June 2020, his taxable income was $22,657. In the year ending 30 June 2021, his taxable income was $31,565.
The testator gave his three sons substantial gifts in the last ten years or so of his life. In 2011, the testator gave both Christopher and Rodney $200,000. At the same time, the testator forgave a loan he had made to Kym in the amount of about $170,000 and gave him $30,000. The loan was a result of Kym and his wife purchasing a property at Flagstaff Hill in 2002 for $178,000 and being loaned the purchase price by the testator. The loan was secured by a mortgage over the property. Until the loan was forgiven, it was repaid in monthly instalments at a rate of 5 per cent per annum. In January 2014, the testator gave Christopher $100,000 for the purchase of a property, but that gift was not spent in that way. In June 2015, the testator gave both Rodney and Kym $100,000. The final gift was in December 2017 when the testator each of his three sons $10,000.
On the evidence, Christopher placed much of the $100,000 received from the sale of the marital home into the share market. The value of that portfolio rose to about $150,000 before the value was reduced by about half during the global financial crisis. Christopher also placed the $200,000 received in 2011 into the share market. Christopher said that there was a period in about 2017 and 2018 when he placed all his income into superannuation. He said that at about that time he sold his shares and lived from that money. He also purchased two Holden utilities which he still owns. Christopher said the $10,000 gift was used for living expenses.
Christopher has some assets. He has a three-bedroom house at Hawker valued at about $120,000 which is subject to a mortgage of a little less than $84,000. That house was purchased in July 2021. Christopher does not live in that house but intends to do so in the future. Christopher also owns a vacant block of land at Hawker which is unencumbered and valued at about $11,500. That block was purchased in January 2023. Christopher has three bank accounts which contain a total amount of about $47,000. Christopher has four motor vehicles; two Holden utilities valued at about $50,000 and $28,000 respectively, another Holden vehicle valued at about $4,000 and a fourth vehicle of negligible value.
Christopher has $22,943.96 in a Super SA-Triple S account and $115,133.57 in a Super SA Income Stream account. It is necessary to say something more about the superannuation. On 30 June 2022, about nine months after the death of the testator, the balance in the Income Stream account was $235,023.36. Between 30 June 2022 and 17 March 2023 that balance was reduced by $126,711.82. That reduction was occasioned by $36,711.82 in gross income payments being made and $90,000 being withdrawn. On the evidence, those withdrawals have been for living expenses; the purchase of the vacant block at Hawker; making improvements to the property at Hawker on which the house is situated (by building a shed and minor works); and miscellaneous expenses. The cost of the shed at Hawker was $29,000 of which $17,000 has been paid. Christopher has built that shed for his vehicles and to use as a workshop. In addition, on the evidence, some of what was withdrawn from the Income Stream account is the source of the money in the three bank accounts.
Christopher plans to retire in the next year or so. He plans to move to Hawker to live. During his evidence, Christopher spoke of possible plans to make improvements to the two properties in Hawker, effectively by building accommodation, and to then derive income. Christopher did not provide any meaningful detail about any such plans. There is no evidence of any substantial investigation of the costs of any necessary improvements, the demand for accommodation or potential returns. Regardless of whatever improvements might be able to be made, on the evidence, I am not satisfied either property at Hawker is likely to provide any income.
In June 2022, Christopher estimated his weekly expenses to be about $1,200 per week. The largest expense was his rent which at that time was $400 per week. In June 2022, the weekly mortgage payment with respect to the house at Hawker was $95 per week. To make up the difference between his income and his weekly expenses, by June 2022 Christopher was drawing a little less than $500 a week from his superannuation. By the time of trial, the amount Christopher was withdrawing to supplement his income had increased to $1,500 a fortnight. By the time of trial, the amount of weekend work Christopher was doing had diminished to a handful of hours one weekend a month, at least in part because he travels to Hawker from time to time. Christopher’s expenses have increased between the date of the testator’s death and trial due to the expenses involved in travelling to Hawker; increasing his mortgage payments; and general cost of living increases. If Christopher continues to withdraw $1,500 a fortnight from his superannuation, which at the time of trial had a combined balance of about $138,000, that balance will be nil within about three and a half years.
The circumstances of Rodney and Kym
Rodney and Kym are in more fortunate financial positions than Christopher.
Kym is 70 years of age. Kym and his wife are retired, and their home is unencumbered. Including the home, together Kym and his wife have assets of about $1,187,000.
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.

While Christopher is 65 years of age and his future health needs cannot be predicted with certainty, there is no evidence that he currently has any health issues which may require a particular level of care. Christopher intends to retire soon and live in the house at Hawker. There is no evidence that house requires any improvements before it is suitable for him to live in full‑time. Retirement will have the consequence of Christopher no longer receiving income from his employment with the Department of Education and weekend work. At the same time, the loss of income will be partially offset by Christopher no longer being burdened by the payment of rent. This is not to overlook the mortgage payments which in June 2022, about nine months after the death of the testator, were $95 per week. Christopher did not give evidence which suggests that once he moves to Hawker, there will be a particular need to travel to and from Adelaide. Had that needed existed, it can be accepted that his expenses would increase.
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.

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

[2023] SASC 89

6 June 2023