Brennan v Mansfield [2013] SASC 83 (Supreme Court of South Australia, Stanley J, 6 June 2013)
This was a family provision case. The plaintiff sought further provision from the will of his deceased
partner. In his will, the deceased left $100,000 to the plaintiff, together with his share of the house
they had occupied as tenants in common. He also left gifts of $20,000 each to various charities (these
were not affected by this decision). The specific gifts, including that to the plaintiff, totalled $225,000.
However, the deceased left the residue of his estate, worth approximately $2.5 million, to the third
defendant, Prince Alfred College Inc. The College was the deceased’s old school, and a charity.
The plaintiff and the deceased lived together as a couple for 26 years until the deceased’s death.
They enjoyed a luxurious life together, largely funded by the deceased, who was a wealthy man. The
plaintiff claimed he was not left with adequate provision for his proper maintenance, education and
advancement in life, having regard to his moral claim to a greater share of the deceased’s estate. He
submitted there were no competing moral claims upon the testator’s bounty.
It was held that the plaintiff’s application should succeed with a declaration made pursuant to section
11B(2) of the Family Relationships Act 1975 (SA) that the plaintiff was the domestic partner of the
deceased and an order made pursuant to section 7 of the Inheritance (Family Provision) Act 1972
(SA) (the Inheritance Act). The plaintiff received an additional $900,000 from the residue of the
deceased’s estate (i.e. coming from the share of the estate left to Prince Alfred College Inc), bringing
his total inheritance to $1,000,000.
The main reason advanced by the court for this decision was the moral obligation the deceased owed
to the plaintiff. This finding turned, firstly, on the determination that the plaintiff was the domestic
partner of the deceased, as defined in section 11B(2) of the Family Relationships Act 1975 (SA). The
defendants did not oppose this finding.
The second issue the Court had to address was whether it should make an order pursuant to section
7 of the Inheritance Act for further provision from the estate of the deceased for the maintenance,
education and advancement in life of the plaintiff. As the domestic partner of the deceased, the
plaintiff was entitled to claim further provision under the Act: section 6(ba). Pursuant to section 7(1) of
the Act, the Court may make such order as it thinks fit out of the estate of a deceased person for the
maintenance, education or advancement of a person entitled to claim the benefit of the Act, if the
Court is satisfied that person is left without adequate provision for his proper maintenance, education
or advancement in life.
Prince Alfred College Inc (the College) submitted that the plaintiff failed to demonstrate that he had
been left in need of further provision, and that the plaintiff already had substantial assets. The plaintiff,
aged 54, worked full-time as a primary school teacher, and had superannuation assets of about
$150,000. In addition, the following findings of fact were made:
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At the date of trial the plaintiff owned a property, unencumbered, valued in the vicinity of
$900,000 to $1 million.
When the plaintiff turns 55 he would qualify for a lifetime pension. If he continued to work to
60 years of age the pension amount would be two-thirds of his retirement salary indexed for
life.
The plaintiff currently earned approximately $82,000 per annum from his employment with the
Education Department and an additional $2,000 to $3,000 per annum by way of dividend
income.
The plaintiff owned his own car with an approximate value of $37,000.
The plaintiff owned substantial art, furniture and other collectibles the value of which is difficult
to assess but which the court considered to be substantial and probably in excess of
$100,000.
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The plaintiff had cash in the bank with a balance of around $90,000 (as at the date of trial).
The plaintiff had a share portfolio worth approximately $30,000.
Most of the paintings, furniture and other collectibles owned by the plaintiff were gifts made to
him by the deceased during the deceased’s lifetime.
His Honour considered the two-stage process to determine the provision question (at [43]–[44]):
The exercise undertaken by the Court requires it to carry out what has been described as a
two-stage process. The first stage calls for a determination of whether the plaintiff has been
left without adequate provision for his proper maintenance, education and advancement in
life. The second stage, which only arises if that determination be made in favour of the
plaintiff, requires the Court to decide what provision ought to be made out of the deceased’s
estate for the plaintiff. The first stage has been described as the ‘jurisdictional question’. In
deciding whether the deceased failed to make adequate provision out of his estate for the
proper maintenance of the plaintiff, consideration must be given to the meaning of the words
‘adequate’ and ‘proper’. They are relative terms. Whether they are satisfied must be decided
having regard to all the circumstances of the case. There are no fixed standards, and the
Court is left to form opinions and make value judgments upon the basis of its own general
knowledge of social conditions and standards.
The plaintiff did not base his claim on lack of adequate provision per se. Rather, he based it on his
moral claim to a greater share of the deceased’s estate. The plaintiff submitted that the College had
no moral claim on the deceased’s bounty. There were, in effect, no competing moral claims in
opposition to his own. His Honour said on this point (at [50]–[51]):
The absence of a moral claim of that kind on the part of the third defendant [the College] does
not mean that the entitlement of the third defendant under the terms of the deceased’s will
does not constitute a competing claim for the purposes of the determination by the Court of
whether adequate provision has been made for the proper maintenance and advancement of
the plaintiff from the deceased’s estate. The Court must have regard to any special interest
the evidence demonstrates the deceased had in the third defendant. The school may be able
to show a strong connection with the deceased and the capacity to make charitable gifts is an
important part of freedom of testation...evidence [was given] of the deceased’s interest in the
school. [This] evidence was derived entirely from the school’s records. Those records
disclose that many years ago, the deceased played golf and tennis for the old scholars. In the
last five years of his life, the deceased donated some $1,050 to the school. This is the only
evidence of any financial contribution he made in support of the school. Plainly, he
demonstrated fondness for his old school. When he commenced to consult...his treating
general practitioner, he was pleased to know that [the doctor] was an old scholar. He
discussed the school with him occasionally. He kept up with the school’s quarterly magazine.
Importantly, in previous wills made in 1985, 2003 and 2007, the third defendant was the
residual beneficiary of his estate. I accept that the school cannot establish a competing moral
claim on the deceased’s bounty but the evidence demonstrates that he did have a genuine
interest in the school, and wished to make substantial provision to it from his estate. I
consider his intention was sincere and not motivated by a desire to deprive the plaintiff.
The College submitted that the plaintiff had considerable assets, and would be in receipt of a
generous pension upon retirement. This meant that the plaintiff had no moral right to the residuary
estate. On this point, His Honour said (at [53]–[54], [59):
But the question is whether, in leaving the school over two-thirds of his estate and leaving the
plaintiff with less than one quarter, the deceased failed to make adequate provision for the
proper maintenance and advancement of the plaintiff. In my judgment, he failed to do so...I
am satisfied the plaintiff has a strong moral claim. The plaintiff and the deceased lived
together in a domestic partnership of mutual love and support for 26 years until the testator’s
death. There was a very significant age gap between them. At the time their relationship
commenced, the plaintiff was 26 years of age. The testator was 64 years of age. I am
satisfied that while the plaintiff maintained his own career throughout the period of the
relationship, he devoted the time when he was not teaching to their domestic relationship.
That included not only cooking, cleaning, and shopping, organising much of their social life,
as well as taking time off work to care for the testator during his illnesses and incapacities,
take him to medical appointments, and nurse him in a way which allowed him to remain at
home.
His Honour said that the plaintiff had a reasonable expectation that he would be the main beneficiary
of the deceased’s estate. Moreover, he had previously enjoyed a luxurious lifestyle, and to keep up
this standard would need further provision (at [62]):
In my view, the provision made by the deceased in his will for the plaintiff is inadequate to
allow him to enjoy anything approximating the lifestyle they enjoyed together over the duration
of their 26-year relationship. I am satisfied on the evidence that the costs of maintaining either
the [real estate] properties for the balance of the plaintiff’s life, cannot be met from the gift of
$100,000 made by the deceased. The costs of maintaining each property is substantial. The
evidence does not permit any precise calculation of the costs. The plaintiff gave evidence that
the monthly cost of maintaining the properties was in excess of $5,000 each. I accept that
these are no more than estimates of a rough kind. Nonetheless, I am satisfied that these
estimates have some basis in fact given the expenses that have been incurred by the first and
second defendant in administering the estate since the testator’s death. I am satisfied that the
expense of maintaining even one of the properties would see the bequest of $100,000
exhausted long before the plaintiff’s death...Further the bequest makes no provision for the
contingencies of life.’
The plaintiff contended that his monthly expenses were in the region of $10,770. His Honour
described these as ‘broad-axe’ figures, but not ‘entirely unscientific’ (at [69]). His Honour considered
that, given that the plaintiff would now be residing at only one of the two properties, $4000 per month
would represent a fair figure for expenses for the one property (at [72]–[73]):
Allowing a figure of $4,000 per month for the expenses associated with the... property, this
translates into a figure of $923 per week. Adopting a multiplier of 898, representing the value
of the regular loss of $1 per week to a male aged 54 ceasing at death and utilising compound
interest of three percent per annum, produces a figure of $828,854. I would then allow
$150,000 for contingencies. I adopt this sum on a broad axe basis having regard to the
plaintiff’s age and likely life expectancy of 79 years. This produces a figure of $978,854. I
round this up to $1,000,000. It is just and convenient to adjust the testamentary disposition
made by the deceased by effectively varying the monetary bequest made to the plaintiff by
the deceased from $100,000 to $1,000,000. This will result in a corresponding reduction in
the residuary estate bequeathed to the third defendant.
Therefore, the plaintiff was awarded a further provision from the deceased’s estate of $900,000. This
amount was taken from the residuary estate, thus reducing the amount given to the College to a total
of $1.6 million.
This case may be viewed at: http://www.austlii.edu.au/au/cases/sa/SASC/2013/83.html
Implications of this case
This case is illustrative of the position of charities when it is found that adequate provision has not
been made in the will of a deceased for someone who has a claim under the various state and
territory Acts relating to family provision from wills. This case turned more precisely on the issue of
moral claim. In Vigolo v Bostin [2005] HCA 11, the High Court held that when making the value
judgment required on the jurisdictional question of whether adequate provision had been made by a
testator in favour of an applicant under the Act, a court should have regard to considerations of moral
claim and moral duty. As His Honour said here (at [47], [49]):
It is a consideration which connects the general but value-laden language of the Act to the
community standards which inform its practical application....
The principle is equally applicable today to the obligation of a testator to his or her domestic
partner.