Williams v Williams - [2020] TASFC 9

[2020] TASFC 9

COURT:	SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:	Williams v Williams [2020] TASFC 9
PARTIES:	WILLIAMS, Johanne Patricia
v
WILLIAMS, Martin John
WILLIAMS, Jennifer (as executors of the will of Derwyn John Williams)
FILE NO:	1413/2020
JUDGMENT
APPEALED FROM:	Williams v Williams (No 2) [2018] TASSC 61
DELIVERED ON:	4 December 2020
DELIVERED AT:	Hobart
HEARING DATE:	12 November 2020
JUDGMENT OF:	Estcourt J, Pearce J, Martin AJ
CATCHWORDS:

Succession – Family provision – Appeals – Decision of associate judge – Associate judge erred in finding appellant's right to occupy property did not confer upon her the powers of a life tenant and in

subsequently using discretion to create life interest – Appeal upheld – Order set aside.

Testator's Family Maintenance Act 1912 (Tas), s 3(2).
Settled Land Act 1884 (Tas), ss 53 and 46.
In re Eastman's Settled Estates [1898] WN 170; In re Baroness Llanover's Will [1903] 2 Ch 16; In re Boyer's
Settled Estates [1916] 2 Ch D 404, referred to.
In re Paget's Settled Estates [1885] 30 Ch D 161, applied.
Aust Dig Succession [1464]

Succession – Family provision – Requirement for adequate and proper maintenance – Whether applicant left with insufficient provision – Claims by spouse or partner – Sufficient provision – Application

dismissed.

Testator's Family Maintenance Act 1912 (Tas), s 3(2).
Aust Dig Succession [1442]

Succession – Family provision – Procedure – Orders and other procedural matters – Costs – Costs of appeal as distinguished from costs of the originating application – Where appeal upheld – Where associate judge erred – Respondents as executors of the estate ordered to pay appellant's party and party costs of the appeal from the estate – Respondents granted an indemnity certificate in respect of the costs of the

appeal.

Aust Dig Succession [1460-1463]

REPRESENTATION:

Counsel:

Appellant: S B McElwaine SC
Respondents: K E Read SC

Solicitors:

Appellant: Bishops Barristers & Solicitors
Respondents: Simmons Wolfhagen Lawyers

Judgment Number:	[2020] TASFC 9
Number of paragraphs:	37

Serial No 9/2020

File No 1413/2020

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

OF DERWYN JOHN WILLIAMS)

REASONS FOR JUDGMENT

FULL COURT ESTCOURT J

PEARCE J
MARTIN AJ

4 December 2020

Orders of the Court:

1            Appeal upheld
2            Orders of Holt AsJ of 25 May 2020 set aside.
3            Appellant's application under the Testators Family Maintenance Act 1912 dismissed.
4            Costs of the appeal of both the appellant and the respondents be paid from the estate.
5            Respondents granted an indemnity certificate under Appeal Costs Fund Act 1968.

Serial No 9/2020

File No 1413/2020

JOHANNE PATRICIA WILLIAMS v MARTIN JOHN WILLIAMS

and JENNIFER WILLIAMS (AS EXECUTORS OF THE WILL

OF DERWYN JOHN WILLIAMS)

REASONS FOR JUDGMENT

FULL COURT ESTCOURT J

4 December 2020

1 In this appeal the decision of Holt AsJ in Williams v Williams (No 2) [2018] TASSC 61 is
challenged.
2 His Honour did not make an order when he…

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 Williams v Williams

Details

AGLC: Williams v Williams [2020] TASFC 9
Case: [2020] TASFC 9
Decision Date: 4 December 2020

CaseChat Overview and Summary

This appeal concerned a dispute over the estate of the deceased, brought by the appellant, Mrs. Williams, against the respondent, Mr. Williams. The core of the disagreement revolved around the interpretation of the deceased's will and the appellant's entitlement to occupy a property. The matter was heard by Estcourt J, Pearce J, and Martin AJ.

The primary legal issues before the court were whether the Associate Judge erred in their findings regarding the appellant's right to occupy the property, specifically whether this right conferred the powers of a life tenant. Furthermore, the court had to determine if the Associate Judge had improperly exercised their discretion in subsequently creating a life interest for the appellant.

The Full Court found that the Associate Judge had indeed erred in their initial assessment. The right to occupy the property, as stipulated in the will, was interpreted by the Full Court as conferring upon the appellant the full rights and powers of a life tenant. Consequently, the Associate Judge's subsequent exercise of discretion to create a separate life interest was deemed unnecessary and an overreach, as the will already provided for such an interest. The court applied principles of testamentary construction, focusing on the plain meaning of the words used in the will and the intention of the testator.

The appeal was upheld, and the orders made by the Associate Judge were set aside.

Orders