Whitington v Whitington - [2009] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WHITINGTON v WHITINGTON & ANOR
[2009] SASC 142
Judgment of The Honourable Justice White
21 May 2009
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT
Plaintiff brought an application under the Inheritance (Family Provision) Act 1972 (SA) for further provision under the will of her late husband - testator intended that the plaintiff should, until her death or remarriage, have an interest in, and be able to reside in, a property in which he held a half interest - the half interest meant that the testator could not pass an entitlement to exclusive occupation - the property had to be sold in any event in order to discharge the liabilities of the estate - inadequacy of the provision in the will conceded by the defendants - question of what provision should be made for the plaintiff.
Held: Plaintiff (as executor) should be permitted to proceed with the sale of the property. Order that the plaintiff receive a specified proportion of the balance of the net proceeds of sale.
Inheritance (Family Provision) Act 1972 (SA) s7, s 8; Administration and Probate Act 1919 (SA) s 51, referred to.
Singer v Berghouse (1994) 181 CLR 201; Bowyer v Wood (2007) 99 SASR 190; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494; Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, applied.
Radaich v Smith (1959) 101 CLR 209; Street v Mountford [1985] 1 AC 809; Re Hoppe [1961] VR 381; Re Will of Mayer [1994] QSC 276; Stevens v McGrath [2004] QSC 138; Sciacca v Ghidella [2001] QSC 134, considered.

WHITINGTON v WHITINGTON & ANOR
[2009] SASC 142
Civil
WHITE J:

This decision concerns an application under the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act). The defendants accept that the will of the late Philip Henry Whitington (Philip) left the plaintiff without adequate provision for her proper maintenance, education or advancement in life. The parties could not agree however on the provision which should be made, or the form which such provision should take.
Background Circumstances
The hearing proceeded on a number of facts and documents which had been agreed by the parties. In addition, the plaintiff gave some short oral evidence. There was little of her evidence which was disputed. I am satisfied that the plaintiff’s evidence was reliable and that it is appropriate, when necessary, to act on it in the resolution of her application.
Philip died on 23 April 2001, aged 60. He and the plaintiff had married on 4 October 1997, having lived together as man and wife since January 1993. There were no children from their relationship.
Philip had been previously married. That marriage ended with a divorce on 22 September 1994. There was a property settlement at that time. The two defendants, Timothy and Edward, are the only children of…

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 Whitington v Whitington

Details

AGLC: Whitington v Whitington [2009] SASC 142
Case: [2009] SASC 142
Decision Date: 21 May 2009

CaseChat Overview and Summary

Whitington v Whitington involved an application under the Inheritance (Family Provision) Act 1972 (SA) by the plaintiff, the widow of the deceased, Philip Whitington. The plaintiff sought further provision under Philip’s will, which she argued did not make sufficient provision for her maintenance. The defendants, Philip's sons from a previous marriage, conceded that the will did not provide adequately for the plaintiff, but disagreed on the extent of the provision needed. The core issue was determining what provision should be made for the plaintiff.

The court considered the circumstances of the plaintiff's marriage to Philip, their cohabitation since 1993, and the absence of children. The court also evaluated the estate's assets, liabilities, and the necessity of selling the Glenelg property to settle the estate's debts. The court had to balance the testator's intent, as expressed in his will, with the statutory obligation to make fair and reasonable provision for the plaintiff.

The court concluded that the plaintiff should be allowed to proceed with the sale of the Glenelg property and receive 60.8 per cent of the net proceeds after costs and liabilities, with the remaining 39.2 per cent to be paid to Timothy. The court also directed that the remaining net proceeds be paid into court pending resolution of issues relating to the estate’s liability for costs. The court further noted that separate consideration would be given to the furniture and household effects mentioned in Philip's will.

The court ordered the parties to prepare minutes of orders reflecting these decisions, taking into account previous orders from February 8, 2006, and April 12, 2006.

Orders

Orders of the court

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Background

Background to the litigation

This decision concerns an application under the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act). The defendants accept that the will of the late Philip Henry Whitington (Philip) left the plaintiff without adequate provision for her proper maintenance, education or advancement in life. The parties could not agree however on the provision which should be made, or the form which such provision should take.Background Circumstances The hearing proceeded on a number of facts and documents which had been agreed by the parties. In addition, the plaintiff gave some short oral evidence. There was little of her evidence which was disputed. I am satisfied that the plaintiff’s evidence was reliable and that it is appropriate, when necessary, to act on it in the resolution of her application. Philip died on 23 April 2001, aged 60. He and the plaintiff had married on 4 October 1997, having lived together as man and wife since January 1993. There were no children from their relationship. Philip had been previously married. That marriage ended with a divorce on 22 September 1994. There was a property settlement at that time. The two defendants, Timothy and Edward, are the only children of Philip and his first wife. Timothy, who was born in September 1978, is now 30 years old. Edward, who was born in April 1981, is now aged 28. In July 1997 Philip was diagnosed as suffering from cancer of the colon. It was that cancer which caused his death. For many years, Philip had been the Chief Executive Officer of the Wyatt Benevolent Institution. He resigned from that position in December 2000, approximately four months before his death. Thereafter, until about three weeks before his death, Philip performed consultancy work on a casual basis for the Wyatt Benevolent Institution. Philip made his last will on 15 December 1998. Probate of that will was granted to the plaintiff as his executor on 13 February 2004. The estate of Philip at the date of his death comprised the following assets: The liabilities of Philip’s estate, including the funeral and memorial expenses, totalled $141,303.11. These included the liability of $63,824 under a mortgage to the Commonwealth Bank of Australia (CBA) in respect of the property at 5 Robert Street, Glenelg South, a bank overdraft of $16,820.79, a personal loan of $20,000 and liabilities under credit card and store accounts. The net value of the estate as at Philip’s death was agreed to be $202,547, ie, less than the value of Philip’s interest in the Glenelg property. At the date of his death, Philip and his mother Gweneth were the owners of the Glenelg property as tenants in common in equal shares. I was told that the property at Glenelg had been bought by the defendants’ great grandfather in 1899 and that it has been owned in the Whitington family ever since. The residence at the Glenelg property is a large bluestone Victorian villa built in the 1880s and listed on the South Australian Heritage Register. Because of its age and proximity to the beach, the residence requires continual maintenance.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties did not address any submissions to the “furniture and other household and domestic effects” referred to in cl 3.3.2 of Philip’s will. I will hear from the parties separately regarding those items.Conclusion For the reasons given, I direct that provision be made for the maintenance of the plaintiff by permitting her to proceed with the sale of the estate’s interest in the Glenelg property; and by directing that she be entitled to 60.8 per cent of the balance of the net proceeds of the sale. The remaining 39.2 per cent is to be paid to Timothy. The balance of the net proceeds is to comprise the amount realised on sale, less the costs of sale and less the payment of the estate’s liabilities, including the liability for legal costs which is yet to be determined by the Court. After the payment of the costs of sale and the discharge of the estate’s liabilities referred to in these reasons, the remaining sale proceeds are to be paid into Court to be held pending the determination of the issues relating to the estate’s liability for costs. I will also hear from the parties concerning the furniture, household and domestic effects. The parties are to bring in minutes of orders to give effect to the orders made by the Court, which minutes are to take account of the orders made on 8 February and 12 April 2006.

Ratio Decidendi

Legal Principle Established

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