In Tasmania s3 of the Testator’s Family Maintenance Act 1912 (the Act), the first issue to be determined by the Court is whether the Will left the applicant without adequate provision for their proper maintenance and support (the jurisdictional question) to be made at the time of the deceased’s death: Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494. If the answer to that question is yes, the court, in exercising its discretion to provide what it believes is appropriate, must consider the pertinent facts as they stand when the order is issued: Coates v National Trustees Executors & Agency Co Ltd.
If the applicant fails on the jurisdictional question, the inquiry ends there. However, suppose the applicant establishes that the deceased estate left them without adequate provision. In that case, the Court then exercises its discretion to decide what, if any, provision to make from the estate.
In assessing the jurisdictional question, the Court applies the following principles:
(a) The assessment is made from the perspective of a wise and just testator.
(b) The Court assumes the testator was aware of all relevant circumstances at the time of their death, including foreseeable future events.
(c) All relevant factors must be considered, particularly:
- the size and nature of the estate,
- the applicant’s financial position,
- the relationship between the applicant and the testatrix, and
- the testatrix’s relationships with others who have legitimate claims on her estate.
(d) The jurisdictional question is purely factual but requires value judgments.
(e) The Court must interpret the statutory language in line with contemporary community standards, using concepts like moral claim and moral duty as guidance.
If the Court finds that the Will left the applicant without adequate provision, the following principles apply in determining the appropriate provision:
(a) Adequate provision refers to the amount necessary to make the provision proper
(b) Proper maintenance and support consider the applicant’s standard of living, their needs, the competing claims of others, and the testatrix’s ability to meet those claims.
(c) Maintenance suggests continuity of a prior standard of living but may also include provision beyond mere sufficiency. Support can extend beyond basic needs.
(d) The assessment of the applicant’s need for maintenance should not be overly narrow.
(e) If the Court’s discretion is engaged, similar considerations to those in the jurisdictional question will influence its exercise.
Jones v Public Trustee as Executor of Estate of Mavis Pauline Jones and Jones [2025] TASSC 1
Daly AsJ approved a request made by Michael Jones (the applicant) under s 3 of the Testator’s Family Maintenance Act 1912 (the Act) to seek financial provision from the estate of his deceased mother, Mavis Pauline Jones (the testatrix). The testatrix passed away in Hobart on May 12, 2022, at the age of 82. In a Will executed on January 14, 2000, the testatrix allocated the remaining assets of her estate to her son, Shane Jones. She made no provision for the applicant.
Size and Nature of the estate
The deceased estate’s total value is $538,138.83, while the net estate value is $460,000. This primarily consists of the property located at 2 Havelock Avenue in Goodwood, which is appraised at $530,000. The executor, the Public Trustee, assesses the estate’s liabilities to be $63,035.77, indicating that it may be necessary to sell the house to cover these liabilities.
The primary creditor of the estate is the executor, who has estimated their commission, charges, and legal costs to total $42,500. Although it may be challenging to align this with the testatrix’s seemingly intended wishes, Daly AsJ must presume that she was aware – or could reasonably anticipate – that the executor’s fees, expenses, and charges could necessitate the sale of the house to settle those liabilities.
At the deceased’s death, the property’s value was $750,000, with a mortgage debt of approximately $95,000. By 6 March 2024, the property’s value had declined to $675,000, and at the hearing date, an outstanding mortgage of $73,000 remained.
Applicant’s financial position
At the time of the deceased’s death, the applicant was 59 years old and was 62 at the date of the hearing. He has been married for 38 years and has three adult children. He jointly owns a home at 167 New Town Road with his wife, Sharon Jones.
The applicant is employed full-time, earning a gross annual salary of $65,000 with a net income of $60,000. As of 10 March 2023, he had $8,000 in savings and approximately $10,000 in his superannuation account. His weekly expenses have fluctuated between $950 and $1,050 since his mother’s death, and he claims that his expenses slightly exceed his income.
In an affidavit sworn on 10 March 2023, he disclosed personal assets valued at $59,000. He omitted some additional assets revealed during the hearing, three rifles worth around $6,000 and a low-value Hyundai motor vehicle. His overall asset position at the hearing date remained mainly unchanged from when his mother passed.
The applicant’s earning capacity has been negatively affected by ongoing health issues. Since 2011, he has suffered from atrial fibrillation and acute coronary syndrome, receiving outpatient treatment in 2020 and 2021. Around May 2022, close to his mother’s passing, he stopped working due to his heart condition and did not resume employment until August 2023.
During his unemployment, the applicant exhausted his superannuation balance of approximately $65,000 and relied on savings and government benefits. Both he and his wife received $600 each per fortnight. Together, they withdrew their entire superannuation savings, totalling around $140,000, and spent it within about a year.
A letter from the applicant’s general practitioner dated 25 May 2023 indicated that the applicant should avoid heavy manual labour but could work 16 to 20 hours per week in light to medium duties. However, the applicant did not submit the doctor’s instructions as evidence.
Applicant’s Family
Sharon Jones did not give evidence, and the applicant submitted minimal details about her financial situation at the deceased’s death. The applicant submitted that she stopped working in 2021 due to serious health issues and withdrew all her superannuation in 2022; the Court was left with an incomplete picture of the couple’s financial situation, including no supporting evidence concerning her superannuation balance.
The Court could not determine Mrs. Jones’s income, current superannuation (if any), or asset ownership. Additionally, bank statements revealed a high volume of unexplained gambling transactions and frequent deposits into Mrs. Jones account from Hamish Jones and Sportsbet, along with occasional unexplained JobSeeker deposits into her account.
The Court rejected the applicant’s legal counsel’s submission that Hamish Jones, the applicant’s 31-year-old son, who is single and employed full-time, is partially dependent on the applicant due to a lack of supporting evidence. Hamish earns a net annual salary of $60,000 and lives with the applicant and his wife but does not contribute to household expenses aside from occasionally assisting with groceries. He does not pay the mortgage or utility bills. While he owns a Ford XR6 Turbo, he primarily drives his parent’s Hyundai i30. The applicant claimed the Hyundai was unregistered and in poor condition, but Hamish’s evidence contradicted this, and the Court preferred Hamish’s account.
Bank statements for Sharon Jones indicated frequent financial transactions with Hamish Jones, likely related to online gambling via Sportsbet, with over $23,000 in gambling-related transactions over 12 months; Hamish Jones did not explain these transactions.
Applicant’s disclosure
The applicant failed to fully and frankly disclose details of his and his wife’s financial situation, particularly concerning Mrs. Jones’ superannuation. The disclosure explained why Hamish Jones lived rent-free while the applicant struggled to cover his expenses. The applicant did not provide information about Mrs. Jones’s superannuation because Shane Jones did not request it. Additionally, the applicant was obligated to clarify the nature of the significant gambling transactions between Sharon and Hamish Jones, which he failed to do.
Despite these deficiencies in disclosure, the applicant’s omissions were not severe enough to entirely undermine his credibility as a witness or to warrant outright dismissal of his claim. Daly AsJ did not draw adverse inferences concerning the gambling transactions, except insofar as they demonstrated the applicant’s failure to meet his disclosure obligations.
Testatrix relationship with Applicant
Considering what the testatrix would have reasonably known at the time of her death concerning the applicant’s financial circumstances, the applicant did not convince the Court that the testatrix could have foreseen that the applicant and his wife would withdraw and spend all their superannuation savings.
The evidence suggests that the applicant and the testatrix had a positive and conflict-free relationship until approximately the last year of her life. His efforts in maintaining her home indicate the strength of this good relationship. However, the applicant did not visit her during her final 16 to 18 months, claiming he wanted to avoid exposing her to conflicts between her sons. There is no evidence that he made any effort to maintain contact with her in any way during this period.
The Court considered that the applicant could have found a way to stay in touch without involving himself in family disputes. The applicant also stated that Shane did not inform him of their mother’s nursing home placement during bathroom renovations. However, there is no evidence that the applicant attempted to ask Shane where she was.
The Relationship Between the Testatrix and Shane Jones
When the testatrix executed her will, she effectively left her entire estate to her son Shane, who had recently moved in with her under an arrangement accepted by the Court that he would care for her for the rest of her life.
Shane Jones, the testatrix’s son, was 54 at the time of her death. He has been receiving a disability support pension due to type 2 diabetes, chronic heart disease, and severe back problems caused by a workplace injury. He also has severe heart conditions and, in 2022, was assessed as having a high risk of a cardiac event.
Daly AsJ accepted Shane’s evidence that around 1998 or 1999, when he was about 32 years old, the testatrix asked him to move in with her to help maintain her property and provide care as she began needing assistance. At the same time, Shane needed a place to live following his divorce. The testatrix made her Will shortly after, on 14 January 2000, and this arrangement remained in place for the next 24 years. During this time, Shane lived with his mother and provided her with social, emotional, domestic, and medical support until her death on 12 May 2022.
Daly AsJ acknowledged that Shane also carried out substantial renovations and maintenance on the testatrix’s home and noted that the applicant had contributed to maintaining the property. Overall, the testatrix and Shane had a very close relationship, and he provided extensive care and support across all aspects of her life. At the end of her life, the testatrix temporarily moved into a nursing home while she undertook renovations at 2 Havelock Avenue to improve the safety of the house.
Daly AsJ found that Shane was financially dependent on the testatrix due to their long-standing arrangement, which was a key factor in the strength of his claim to the estate.
Applicant Left Without Adequate Provision?
The issue before the Court was whether the estate left the applicant with adequate financial support for his maintenance and needs. The testatrix’s Will, dated 14 January 2000, suggests that when she made it, she intended for Shane to inherit her primary asset, which would provide him with financial security and stable accommodation. This arrangement remained unchanged for 22 years until she died in 2022.
When the testatrix made her will, the applicant was financially self-sufficient and likely to remain so. However, by the time of her death, his circumstances had changed. Given the significant decline in the applicant’s health and its impact on his ability to work and earn an income, his wife’s poor health and reduced financial capacity, Daly AsJ determined that the testatrix left the applicant without adequate provision for his proper maintenance and support.
The Court’s Discretion
At the discretionary stage, the Court’s primary duty was to uphold the testatrix’s wishes as much as possible while only intervening to the extent necessary to fulfil her moral obligations. In exercising discretion, Daly AsJ considered the financial circumstances of the deceased and the applicant, the size of the estate, and Shane’s competing claim. The applicant was not required to prove his financial need was more significant than Shane’s, although Shane’s claim remained an essential factor.
The applicant is a joint tenant of a home valued at over $675,000, with a mortgage balance of approximately $73,000; his other assets, including superannuation, total around $50,000. While he can work, his health limits his working hours. He currently earns $60,000 per year, and his health is deteriorating. Although the evidence was not entirely clear, at the time of his mother’s death, he had about $10,000 in superannuation, growing by approximately $143.75 per week since his return to work in August 2023. The Court also noted difficulties in obtaining a complete picture of the broader financial circumstances of the applicant’s family, which complicated the assessment of an appropriate amount for provision.
Shane Jones’ competing claim was strong. His capacity to work is severely limited, and he has been receiving a disability support pension since 2003. His financial assets include approximately $67,000 in superannuation and $5,500 in savings, with no other significant assets.
Daly AsJ acknowledged that the law does not aim to achieve a fair redistribution of assets among family members but that the estate makes adequate provision where necessary. This principle applies even in cases where a residuary beneficiary, like Shane, was relatively well-off, although, in this case, Shane was not financially secure.
The Courts Decision
After considering all relevant factors, the Court determined that $100,000 would constitute adequate provision for the applicant; Daly AsJ ordered accordingly.
Implementation of the Order
The provision for the applicant will take effect as a codicil to the testatrix will, ensuring that:
- The estate will first cover the testatrix’s debts, funeral, and testamentary expenses.
- The applicant will receive $100,000.
- Distribution of the remaining estate to Shane Desmond Jones.
Daly AsJ requested that the parties try to agree on orders that will implement the provision made and address the subsequent additional matters.
A certified version of this order must be created when the will is probated, and the probate grant should be presented in court for this reason: s 9(2) of the Act.
Daly AsJ encouraged the parties to reach a consensus on the orders to resolve the cost issue. Should they disagree on suitable orders, each party can present its proposed orders and ask for a reconsideration of the matter.
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