SUMMARIES OF RECENT CASES
How v How
 TASSC 4 (17 February 2015)
1. Eileen How (dec. 1998) and Ronald How (dec. 2011) produced four children, Roger (dec. 2008), Jennifer (65), Stephen (60) and Brian (55). Ron’s estate was worth about $260,000.00. He left Jennifer a life estate in the house with the remainder to be distributed equally between his grandchildren. The residue was to be divided equally between the children, but because the estate was so small and the estate expenses large there was no residue for distribution.
2. Stephen made application, claiming the provision was of nothing was inadequate provision for his proper maintenance and support. He was a Contract Technician with Telstra working three days a week for approximately $55,000.00 gross, and his wife worked part time three days a week for approximately $24,000.00 gross; they had a net worth of about $1,102,000.00. Both were in reasonable physical health.
3. Jennifer was in poor health and unable to work until she turned 65 when she became entitled to an aged pension. The expectation was she would be on that for the remainder of her life; she had no savings, no investments, no superannuation, no house or land, an old car and some personal property. She lived with the testator from 2007 to 2011. Although he was relatively independent she lived with him to assist him, and was of significant importance to him as he was dying from prostate cancer in the months before his death. He was not easy to live with and was set in his ways, and medication affected his mood from time to time. She gave up opportunities for employment to care for him.
Stephen was not left without adequate provision for his proper support.
1. His financial circumstances.
2. The strength of Jennifer’s claim.
1. Stephen did not ask for the house to be sold and accepted that Jennifer needed it to live in during her life. However as compared to the grandchildren he argued he should have a share in the estate because it is when he is old that he will need that maintenance and support. Given that actuaries are now saying $1,200,000.00 for a superannuation fund is needed to provide a decent income in an aging population, is it proper to favour the grandchildren over this child?
2. Is that issue assisted by an appeal to the “right of testation”?
3. What if Stephen and his wife’s net worth was nil? Where is the line in the sand?
4. Stephen argued that his father gave his brother Brian a property at Mole Creek and then his sister a life estate while he got nothing, and so he should get something. Justice Pearce said that (para 37) the Court should refrain from weighing up what has been given to children during their lives and trying to create equality in the Will. How does this sit with the law that all relevant circumstances are to be taken into account, and that the requirement for “proper maintenance and support” imports value judgments such as equality?
5. If weight was given to the inter vivos gift to Brian, would this be “rewriting the Will”?
Rodgers v Tasmanian Perpetual Trustees Limited
 TASSC 73 (6 December 2013)
Decision of Holt AsJ
The testator was aged 77 years and had one child, the Applicant, and a brother and a sister in Hungary. The total value of the estate was approximately $465,000.00. He left his daughter a life interest in the entirety of the estate. The daughter was aged 50, was single, without children, in poor health, unable to work and receiving a disability pension. She lived in a one bedroom Housing Department unit at Glenorchy. She had no assets of substance, no savings, and suffered from chronic back, joint and neck pain, psoriasis, hypertension, asthma, anxiety, depression, and a stage 1 kidney disease. In addition to being disabled from work she had a restricted ability to perform household tasks. She was a spendthrift. The testator wanted her to have a better quality of life, but was concerned she would waste his estate, and he wanted his family in Europe to ultimately benefit as well. She wanted an absolute interest instead of a life interest, and the overseas family wanted to preserve their remainders.
1. The provision for her was not adequate for her proper maintenance and support.
2. Proper provision required that the daughter receive a capital sum of $50,000.00 to replace her 1978 motor vehicle, and provide herself with some modest luxuries such as holidays and have the comfort and security of a capital fund to cover unexpected and unbudgeted expenses (note that she was entitled to the income on the balance of the estate).
Koukias v Koukias
 TASSC 85 (12 December 2012)
Decision of Holt AsJ
1. The testatrix died leaving three children, Catherine (53), a middle child (unnamed in the judgment) (51) and the younger brother (unnamed in the judgment) (47). The estate had an approximate value of $140,000.00. At the date of death, Catherine seemingly had no employment, and no dependents, an entitlement for about $55,000.00 from her father’s estate, and a HECS debt of about $17,000.00. There were foreseeable possibilities of her suffering from ill health or being unemployed, and both had occurred at the time of hearing. She suffered from depression and her sole source of income was a disability pension. She lived in rental accommodation. She did not have a close relationship with the testatrix, and indeed the testatrix had received legal advice to obtain a Restraint Order against her. Catherine did not provide any financial support to the testatrix and gave her no affection.
2. The middle son suffered from schizophrenia for many years. Prior to the death of the testatrix she looked after him entirely. She resisted her husband’s efforts to have him institutionalised and had a close relationship with him. He lived on a disability pension. Following the death of the testatrix he was totally dependent on his younger brother for his day to day care. He also had an entitlement to about $55,000.00 out of his father’s estate.
3. After the death of the testatrix the younger brother received a carer’s payment. He had cash and chattels of about $20,000.00. He had a partner who was a freelance music teacher with an average income of about $800.00 a week. He too had an entitlement to $55,000.00 out of the father’s estate. He had provided much support for the testatrix and the middle brother. Shortly after he finished his studies in Sydney he abandoned his career in music and returned to Tasmania to provide support for the two of them.
Catherine had not been left without adequate provision for her proper maintenance and support.
1. The small size of the estate.
2. The strength of the claims by the other two sons.
3. The lack of a close relationship with the testatrix.
Turnbull-Ward v Michell and Haley
 TASSC 67 (16 October 2012)
1. The testatrix died a widow aged 81 years leaving three daughters. The Applicant eldest daughter was left nothing but two small bequests of $15,000.00 and $10,000.00 were left to her two children. The balance of the estate was left in equal proportions to the second and third daughters.
2. The Applicant was aged 59 years and was married. She had no dependent children or stepchildren. She and her husband had a combined net worth of about $700,000.00. They were each in employment earning between them more than $100,000.00 per annum. The value of the testatrix’s estate was $276,000.00 at the time of the hearing.
3. The relationship between the eldest daughter and the testatrix had broken down irretrievably. The judgment contains a sad and sorry saga of a failure to keep disagreements in perspective to the point where the Applicant was bitter and twisted and the testatrix pleaded with her by letter “in my last few remaining years leave me in peace and quiet. I want no more abuse to myself or the rest of my family” and there was hardly any contact between them for the last seven years of the testatrix’s life. The Applicant either made or attempted contact several times a year but the testatrix shut her out. She also shut her out of her Will, putting a statement of reasons in clause 8 of the Will and in a document executed by her at the same time and kept with the Will.
4. The middle daughter was aged 57 years and had been married for 38 years. Together with her husband their net worth was about $489,000.00, consisting mainly of their home worth approximately $400,000.00. She did not work but her husband earned approximately $70,000.00 per annum and was 61 years old. He expected he would have to work for at least another five years in order to make adequate provision for retirement.
5. The youngest daughter was aged about 48 years and had been in a relationship for several years. She and her partner had a net worth of about $493,000.00 and a joint income of about $80,000.00 per annum.
6. The testatrix died of cancer over about four years, and it involved painful chemotherapy treatment, lots of hospitalisation, sometimes for periods up to a month and then living and recuperating at the Devonport home of her middle daughter. She needed to be driven to medical appointments in Launceston and in Burnie, and in November 2008 the middle daughter gave up work to provide fulltime care for her.
7. The youngest daughter provided less assistance as she lived farther away but kept in close contact, frequently visited her and regularly took her to her home. On one occasion she accompanied her to Melbourne. The testatrix enjoyed much support and affection from these two daughters in the final years of her life.
1. Inadequate provision had been made for the proper maintenance and support of the Applicant.
2. Proper provision consisted of 20% of the net estate (including within that the bequests of $25,000.00 to her daughters), with the other two daughters getting 40% each of the net estate.
1) It is proper to take into account the possibility of the Applicant or her husband suffering ill health or losing employment. Remembering that this assessment is made as at the date of death, it was noted that the Applicant had in fact ceased employment because of ill health and was getting a disability pension, and the Applicant’s husband had lost his employment for a period of fifteen months, and just obtained fulltime employment for a contract period of six months.
It is instructive to note that the variation effected by the decision (taking into account that all parties had agreed that the bequests to the two daughters of the Applicant were to be taken from her share, was a movement of $30,200.00. The value of the estate had depreciated significantly because of change in values of housing and so on but was $276,000.00. The rough original provisions and provisions under the order work out as follows: