Langford, Owen v Cleary, Shirley May

(1998) 8 Tas R 52; [1998] TASSC 37

Supreme Court of Tasmania

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Interrogate

Catchwords

1. Succession
2. › Family provision and maintenance
3. › Failure by testator to make sufficient provision
4. › Duty of testator
5. › Duty to children
6. › Adult son
7. › Whether moral responsibility to make provision
8. › Whether need established at date of hearing
9. › Testators Family Maintenance Act 1912 (Tas), s 3(1)
1. Succession
2. › Family provision and maintenance
3. › Adult child
4. › Whether status as adult child affects entitlement
5. › Whether adult child bears high burden to establish entitlement
6. › Testators Family Maintenance Act 1912 (Tas), s 3(1)
1. Evidence
2. › Facts excluded from proof
3. › On grounds of privilege
4. › Mediation and settlement conferences
5. › Without prejudice negotiations
6. › Whether evidence of settlement negotiations admissible
7. › Whether subsequent correspondence regarding proposed consent orders admissible
1. Evidence
2. › Credibility
3. › Assessment of applicant's credibility
4. › Inconsistent accounts
5. › Failure to produce documentation
6. › Contradictory evidence in other proceedings

Quick Take

An adult child who cannot establish vulnerability or disadvantage bears a high burden in establishing entitlement under the Testators Family Maintenance Act 1912 (Tas) and must show special need. Admissions and proposals made during without prejudice settlement conferences remain inadmissible in subsequent proceedings, but correspondence regarding proposed consent orders made outside the conference may be admissible as open admissions, though their weight depends on the overall merits. A testator's consistent intention to exclude a child, supported by evidence of a poor relationship, will be upheld where the excluded child lacks credibility regarding need.