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Williams v Williams (No 2)

Williams v Williams (No 2)

Case [2018] TASSC 61 5 December 2018

Family Provision

Life Interest

Succession Law

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[2018] TASSC 61

COURT: SUPREME COURT OF TASMANIA

CITATION: Williams v Williams (No 2) [2018] TASSC 61

PARTIES:  WILLIAMS, Johanne Patricia
  v
  WILLIAMS, Martin John
  WILLIAMS, Jennifer

FILE NO:  3606/2016
DELIVERED ON:  5 December 2018
DELIVERED AT:  Hobart
HEARING DATES:  27 September, 27 November 2018
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Surviving spouse or partner – Mere right of occupancy of family home inadequate provision – Provision made conferring life interest.
Testator's Family Maintenance Act 1912 (Tas), s 3(1).
Aust Dig Succession [1427]

REPRESENTATION:

Counsel:
             Applicant:  T Ellis SC and A Wells
             Respondents:  K Read SC
Solicitors:
             Applicant:  Bishops Barristers and Solicitors
             Respondents:  Simmons Wolfhagen

Judgment Number: [2018] TASSC 61
Number of paragraphs: 63

Serial No 61/2018
File No 3606/2016

JOHANNE PATRICIA WILLIAMS v
MARTIN JOHN WILLIAMS AND JENNIFER WILLIAMS

REASONS FOR JUDGMENT Holt AsJ
5 December 2018

A claim for family provision

Derwyn John Williams (the testator) died on 20 February 2016 aged 70 years. He was survived by his wife (the applicant). The couple had married in 2006, but had been in a relationship for about 10 years prior to the marriage. Both had previously been divorced. At the time of the death of the testator the applicant was aged 65 years. The testator was also survived by his two children, Susan, then aged 44 years and Martin, then aged 42 years.
The testator left an estate having a value of a little over $1 million. By his will, made about three weeks prior to his death, the testator appointed his son and his son's wife (the respondents) as executors of his estate. He left the bulk of his assets to his two children and made provision for the applicant, leaving her a one-third interest in an investment property in Launceston (the investment property), then worth about $50,000 to the applicant, and a right to occupy the couple's home at St Helens for so long as she used it as her principal residence and subject to a requirement that she pay rates, water charges, taxes, insurance premiums and maintenance costs. The testator also left to the applicant his household furniture and two motor vehicles of modest value. As a result of the testator's death the applicant also became entitled to receive a Department of Veterans' Affairs (DVA) pension of about $450 per week and a DVA gold health card.
The applicant had assets of her own. Namely a property in Launceston worth about $260,000, a share portfolio worth about $20,000 and superannuation investments worth about $17,000. She also had some cash in the bank making a total of a little over $300,000.
The applicant has applied for an order pursuant to the Testator's Family Maintenance Act 1912 (the Act) making further provision for her out of the estate. The application was not filed until December 2016, being about seven months after the grant of probate issued…

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 (No 2)

Details

AGLC: Williams v Williams (No 2) [2018] TASSC 61
Case: [2018] TASSC 61
Decision Date: 5 December 2018

CaseChat Overview and Summary

The case of Williams v Williams (No 2) involved a dispute over the distribution of a deceased estate in accordance with family provision legislation. The respondent, who was the surviving spouse of the deceased, challenged the validity of the deceased's will, arguing that it did not make adequate provision for her maintenance. The court was tasked with determining whether the respondent's claim was valid under the Family Provision Act and whether the provisions made in the will were sufficient.

The legal issues before the court included the interpretation of the Family Provision Act and the determination of what constitutes "adequate provision" for a surviving spouse. The court had to consider the statutory criteria for making a family provision claim and assess the nature and extent of the provision made to the respondent in the will. The central question was whether the life interest in the family home granted to the respondent was sufficient to satisfy the requirements of the Act.

The court held that the respondent's claim was valid and that the provisions made in the will did not amount to adequate provision. The court noted that the respondent's mere right of occupancy of the family home did not constitute adequate provision under the Act. Instead, the court found that the provision made conferring a life interest in the property was insufficient to meet the respondent's needs. The court emphasised that the assessment of adequate provision should take into account the respondent's reasonable financial needs, and the life interest granted did not meet those needs. The court allowed the respondent's claim, ordering that the estate be distributed in a manner that provides for her adequate maintenance.

The final orders of the court directed that the estate be distributed in a manner that ensures the respondent receives adequate provision for her maintenance. The court's decision underscored the importance of considering the specific circumstances of each case when determining the sufficiency of provision under the Family Provision Act.

Orders