Hannah Boxall, Lawyer, recently reviewed the Tasmanian case of Booth v Brooks, decided in July 2018. This case highlights the circumstances a Court will consider when determining a claim for family provision.
In Booth v Brooks, the father (“Mr Triffett”) died leaving a long-term spouse (“Ms Brooks”), two sons, and an estranged daughter. Mr Triffett’s Will left everything to Ms Brooks if she survived him. If Ms Brooks did not survive him then his estate was to be put in trust for the benefit of his two sons. The Will made no provision for his daughter. The daughter made an application to the Court for family provision under The Testator’s Family Maintenance Act 1912 (Tas) (“the Act”).
The main issues in dispute were:
- at the date of Mr Triffett’s death, was the daughter left without adequate provision for her proper maintenance and support
- what if any, provision should be made for the daughter from Mr Triffett’s estate
The Court held in favour of the daughter on the first issue, ruling that she was left without adequate provision for her proper maintenance and support. There were a number of factors which persuaded the Court to come to this decision. First, the estate was valued at approximately six million dollars ($6,000,000.00). Accordingly, the estate was large enough for Mr Triffett to make provision for his daughter, whilst at the same time, leaving sufficient money for the maintenance and support of his partner and ultimately his two sons. Second, Mr Triffett had spent minimal time with his daughter, demonstrated little affection for her, and provided her with limited financial support throughout her life. The Court reasoned that this increased Mr Triffett’s moral responsibility to make adequate provision for her in his Will. Finally, at the date of Mr Triffett’s death, the daughter was not in a strong financial position. She was dependant on welfare and her assets totalled approximately $4,500.00. The Court then turned to the second issue.
What Provision Should Be Made?
Counsel for the daughter submitted that the daughter’s claim ought to be calculated similarly to the way personal injuries claims are quantified. The Court however determined that a calculation in this way is not relevant to the assessment of a claim for family provision, rather the Court must have reference to what a wise and just testator, aware of all circumstances, would do. The Court noted that even in the case of large estates it is not a requirement that the deceased “completely remove the welfare burden of the State for his adult children”.
Counsel for Ms Brooks (as the Respondent) argued that the phrase ‘proper maintenance and support’ in the Testator’s Family Maintenance Act 1912 (Tasmania) confines the Court’s discretion to making a provision which provides her only with the necessities of life. The Court rejected this proposition. Instead, the Court reasoned that they would not confine themselves to an award for the bare necessities but would not go beyond that which falls within the ordinary meaning of “support”.
In deciding what provision should be made the Court took into consideration the daughter’s capacity to work, the modest lifestyle that she was use to living, and the size of the estate. The Court reasoned that the amount sufficient for the daughter’s proper maintenance and support was enough money to purchase her own low maintenance home, to meet the expenses associated with that home, to purchase private health insurance, and to have some money left over. Ultimately, it was held that $800,000.00 was to be paid to the daughter from the estate.
Hannah Boxall is a Lawyer at Worrall Moss Martin Lawyers. You can see Hannah’s full profile and contact her here.
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