Jones v Jones [2026] TASFC 4

"It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant's financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court.

Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission."

1. In other cases cited by the appellant's counsel, the court has accepted that notwithstanding deficiency in the information provided by the applicant, there was sufficient information available to enable satisfaction as to a broad outline of the financial circumstances of the applicant, sufficient to enable the Court to make the evaluative judgment and exercise the discretion required by the legislation. See, for example, Cringle v Cringle; Toppi v Toppi (above). I refer also, by way of example, to the Tasmanian single judge decision of Pearce J in Muhl v Bailey [2025] TASSC 24. His Honour was dealing with a claim under s 3, and was faced with a submission that the applicant had not proved that she was left without adequate provision because she did not make full and frank disclosure of her financial circumstances. His Honour said that although some information "did not emerge until she was cross-examined", he was "satisfied that her affidavits gave a sufficient picture of her overall financial position". His Honour accepted her evidence about these matters and ultimately awarded to her provision from the estate.
2. It is important to exercise care in applying the New South Wales cases to the Tasmanian legislation. Most, if not all of these cases were determined under the relevant provisions of the Succession Act 2006 (NSW). That Act sets out a lengthy and detailed list of matters to which the court may have regard when making the relevant determinations in respect of family provision. Those matters include the financial circumstances of the applicant and any person with whom the applicant is cohabiting. See ss 60(1)(b) and 60(2). Such a list is not contained in the Tasmanian legislation. However, with this caveat, I accept that in general terms, it is self-evident that a court determining a claim under s 3 of the Act must do so on the basis of evidence, and hence must have sufficient evidence presented to it to enable it to lawfully evaluate the jurisdictional question and, if necessary, exercise its discretion with respect to the provision which it is proper to make from the estate. Such evidence obviously includes that concerning the financial circumstances of the applicant and any person financially related to him. In most cases, this will require enough evidence to enable the court to form, at the least, a broad outline of those circumstances. It is stating the obvious, I think, to say that the onus of presenting this evidence and having it accepted as truthful and reliable, including by providing corroboration, if necessary, falls on the party who has made the application and therefore has the onus of proof. In my view, the cases to which we have been referred say nothing more than this. This approach would seem to be consistent with that accepted by the Western Australian Court of Appeal in McGeough v Ian Torrington Blatchford as Administrator of the Estate of Margaret Mary McGeough [2021] WASCA 169 in respect of this issue:

"The appellant referred to New South Wales authorities which hold that it is incumbent on an applicant for relief under family provision legislation in that State to disclose to the court, as fully and frankly as possible, the whole of his or her financial situation at the relevant time. It may be accepted that the absence of satisfactory evidence as to significant aspects of an applicant's financial circumstances at the date of the deceased's death might, depending on the circumstances, preclude a finding that the jurisdictional question is satisfied. However, in the present case, Rory McGeough's evidence did describe the whole of his financial situation. The appellant's central complaint is not as to the completeness of the picture painted by Rory McGeough's evidence, but the absence of documentary evidence supporting aspects of that evidence. That complaint is made in a context where Rory McGeough's evidence was not entirely lacking in documentary support and the appellant does not point to any particular evidence in the primary proceedings which is inconsistent with Rory McGeough's evidence

In all the circumstances of the present case, her Honour was not precluded from holding that Rory McGeough had satisfied the jurisdictional question because his oral evidence concerning his financial position as at the date of the Deceased's death was not corroborated or supported by documentary evidence. Her Honour was entitled to conclude that the Will did not make adequate provision for Rory McGeough's proper maintenance, support or advancement in life within s 6(1) of the Act, as at the date of the Deceased's death, having regard to her Honour's findings as to the relevant facts and circumstances that existed at the date of death (whether the Deceased knew of them or not) and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts."

1. In this case, it is implicit in the primary judge's reasons that notwithstanding the concerns expressed by his Honour concerning the failure of the first respondent "to discharge his obligation to disclose to the Court as fully and as frankly as possible all details of his and his wife's financial material circumstances", his Honour considered that he had sufficient information as to the first respondent's circumstances, including those of his wife, to enable him to be satisfied of the jurisdictional fact and to exercise the discretion as he did. His Honour said that despite his concerns, the "applicant's failures are not so significant as to totally undermine his credibility as a witness or to justify refusal of the application for that reason alone".
2. His Honour's conclusion in that regard, and the implication that he was satisfied that there was sufficient information to make the requisite determinations, was justified on the evidence. This was not a case where there was any real suggestion that the first respondent or his wife had the benefit of a significant asset or financial resource not disclosed to the Court. There was no dispute that the first respondent and his wife were suffering health issues from before the testatrix's death, which continued after her death and, in fact, required both of them to give up work as he testified. The first respondent's evidence concerning the withdrawal and use of his superannuation was consistent with financial documents placed in evidence. For example, bank statements of the joint account of the first respondent and his wife show a balance as at June 2021 of $48,501.43. This is consistent with his evidence that he withdrew and was living on his superannuation at that time. The transactions which follow are consistent with a working account from which expenses and small cash withdrawals appear to be debited on a regular basis. Significantly, the funds in that account had been completely dissipated by 2024. Again, this is broadly consistent with the evidence of the first respondent. There are no transactions which appear to be related to gambling shown in the statements for that account.
3. The concern expressed by the primary judge concerning the first respondent's failure to disclose, seems to be mainly related to the financial circumstances of his wife and to a lesser extent those of Hamish. The primary areas of concern are the gambling activity shown in the wife's bank statements, which seems to involve Hamish, the disposition of the wife's superannuation and the fact that Hamish was living with the first respondent and his wife "rent free". With respect to the latter, Hamish gave evidence and readily admitted that he was earning a salary, did not pay board or rent and had been assisted by his parents with respect to his gambling problem. He was made available for cross-examination and this took place. It is, with respect, difficult to understand how the first respondent could be fairly criticised for not making adequate disclosure about this aspect of his circumstances. In respect of the first respondent's wife's superannuation, it is true that she was not called to give evidence and there was no documentary evidence corroborating her withdrawal of that money. However, the first respondent gave clear and largely unchallenged evidence concerning the ill-health of his wife and the withdrawal and expenditure of her superannuation. There was no serious challenge to his evidence about this in cross-examination except to raise a query concerning why he had not presented documentary evidence to corroborate the withdrawal. As the primary judge noted, his response to this question was that he had not been asked to produce those documents. In any event, the discussion was about a modest amount of superannuation by a woman who had been employed for many years in what could reasonably be inferred to be low paying occupations before becoming ill in 2021 and having to stop work in 2022. As already discussed, the evidence established that she had not recommenced employment. It is, with respect, somewhat fanciful to suggest that she had retained a significant amount of money and that this was the subject of what was asserted to be deliberate nondisclosure by the first respondent. There was more than enough evidence for the primary judge to form a broad overview of the financial position of the first respondent's wife insofar as the disposition of her superannuation was concerned.
4. I now turn to the gambling issue. The primary judge's specific concern about this arose from bank statements presented to the Court by the first respondent. In respect of this his Honour said:

"Sharon Jones' bank account statements disclose that Hamish Jones makes frequent deposits into - and receives frequent transfers from - her bank account, which appear to have something to do with online gambling via Sportsbet. The nature and rationale for these arrangements was not explained by anyone. The turnover in relation to these transactions amounted to over $23,000 within a period of about 12 months."

1. The bank statements referred to in this passage are of an account in the wife's name. As the primary judge noted, these showed transactions which appeared to be related to gambling. As already discussed, Hamish disclosed in evidence that he had had a gambling problem "about four or five years ago" and that his parents had assisted him by provision of "about six or seven grand" to help him repay debts which he had acquired as a result of gambling. However, the bank statements of the said account seem to show numerous and regular transactions whereby small sums of money were withdrawn from the account in favour of betting agencies and deposits made from time to time in an apparent attempt to cover those withdrawals. The deposits are largely, if not exclusively, made by Hamish. This pattern of activity continues until 2024, well beyond the timeframe stated by Hamish as to his gambling problem. Neither the first respondent nor Hamish were questioned about this.
2. It is apparent that the account in question is different to the joint account used to fund living expenses. It is solely in the name of the first respondent's wife. The bank statements commence on 31 December 2021 with an opening balance of $13,709.73 and continue through to 30 June 2024 when the balance is negligible. The majority of transactions, although not all, seem to be related to gambling. Clearly, there was expenditure of some funds on gambling either by the first respondent's wife or Hamish or both of them during this period. However, apart from the initial capital injection which can be assumed to be from the first respondent's wife, the majority of money deposited thereafter is from Hamish, presumably in repayment of money withdrawn by him for the purpose of gambling. There are some deposits that are from Jobseeker or otherwise unexplained, but these are relatively modest. All of this is apparent from the bank statements. The disclosure in respect of the gambling issue was not as detailed as it might have been, but it was clearly apparent from the bank statements and the existence of a gambling problem was admitted by Hamish. There does not seem to have been any deliberate effort to cover up any of this, and the witnesses could have been questioned about this documentation at the hearing at first instance by the appellant's counsel, but were not.
3. Despite the deficiency in the evidence concerning the gambling issue, I am satisfied that the primary judge correctly determined that the overall evidence was sufficient to enable his Honour to make the evaluative assessment required by the first stage of the determination and to properly exercise his discretion in respect of the second stage. At worst, the gambling involved a relatively modest amount of money, and had, in any event, been disclosed to some extent. It was not so significant that it materially altered the broad outline of the first respondent's financial position established by the evidence and accepted by the primary judge. In my view, the appellant has not made out the specific error alleged in grounds 1, 2 and 3(a).

Was the primary judge's exercise of discretion unreasonable or plainly unjust?

1. As already noted, the argument in relation to ground 3(b) relies on the inference of error from a decision which was unreasonable or plainly unjust. In Karimalis v Kapodistrias, Porter AJ noted that within the context of the exercise of discretion under s 3, what needs to be shown is, as stated in Singer v Berghouse, that the provision made by the primary judge was "an entirely erroneous estimate of what, in the circumstances, was an adequate provision...".
2. While the appellant's argument was presented through the prism of his submissions concerning the sufficiency of material and adequacy of disclosure, the argument also referred more broadly to relevant considerations arising from the general circumstances. In particular, the appellant's counsel emphasised the strong moral claim of the appellant, his financial dependence on the testatrix, in particular with respect to his lengthy residence in the home and the respect to be accorded to the testatrix's judgment about this question. It was submitted that given the modest size of the estate, the provision ordered by the primary judge would necessarily result in the sale of the house. It was argued that if no provision was made, there was a strong probability that the appellant could avoid sale of the house, notwithstanding the fees due to the Public Trustee. In this regard, it was noted that the appellant would be able to access his superannuation to meet that cost.
3. The argument was that, by comparison, the first respondent, although in a much-reduced financial position due to illness, was still in employment and importantly he and his wife own their house, with only modest debt. Even with the limitations on disclosure, it was still clear that the first respondent's wife was able to engage in gambling in an undisclosed amount. In those circumstances the result, which would necessarily involve the sale of the testatrix's house, and leave the appellant without a home, constituted an exercise of discretion which was unreasonable or plainly unjust.
4. In my view, the primary judge's decision does not permit an inference of error. The evidence clearly supported his Honour's finding that both the appellant and the first respondent had a moral claim to provision from the testatrix's estate. Both were at a relatively advanced age with health difficulties that impacted their respective ability to support themselves in the future. The critical limitation on the testatrix's capacity to make adequate provision for the proper maintenance and support of both was the size of the estate. It was, in my view, entirely reasonable for the primary judge to determine that as at the date of the testatrix's death, "a wise and just testatrix would have given close consideration to the fact that the applicant's health had worsened over the years and at that date had a significant impact on his present and future capacity to work and earn money". His Honour also noted the relevance of the first respondent's wife's poor health. It was a reasonable decision and well within his Honour's discretion to respond to those circumstances by making provision. The fact that the house would have to be sold was relevant but not determinative. On the evidence, provision in any sum would be likely to have that consequence. Further the appellant's claim of dependence was tenuous. He had certainly lived with his mother in the house for a long time and had provided her with significant assistance. This of course was the basis of his moral claim. However, it could not fairly be said that he was dependent on her. He had his own income and the evidence established that he was capable of supporting himself and from time to time performing some physical work. Provision in the sum of $100,000, represented less than a quarter of the overall value of the estate. In my view, this was well within the bounds of a reasonable exercise of discretion by the primary judge.
5. Ground 3(b) is without merit.

1. Ground 4, as drafted, linked the complaint about lack of reasons to the arguments which underpinned the other grounds. In particular, the complaint was that the primary judge had failed to explain how the sum of $100,000 was calculated, "in the face of both of the non-disclosure of financial circumstances and the competing claim of the appellant". However, as the ground was argued on the hearing of the appeal, the submission is simply that the primary judge has failed to give any or any adequate explanation of how he arrived at the amount of $100,000 as proper provision from the estate.
2. There is no controversy that a material failure to provide reasons for a decision constitutes an error of law. However, it is also clear from the authorities that the adequacy of reasons must depend upon the circumstances of each case. Further, the adequacy of reasons must be assessed having regard to the context of the whole decision and the issue to be determined.
3. In this case, it is plainly apparent that the exercise of discretion did not and could not require a mathematical calculation. This approach to the exercise of discretion in cases involving family provision has been recognised in numerous cases. In Karimalis, Porter AJ said "a mathematical approach must yield to one of impression and broad judgment". In the decision of the Victorian Court of Appeal in Blair v Blair [2004] VSCA 149, Chernov JA, with whom the other members of the court agreed, rejected an argument based on the trial judge's lack of reasons for an award of testators family maintenance. His Honour noted that the trial judge's "determination ... involved the application of an instinctive synthesis, a process that has been approved by this Court in like cases where an arithmetic calculation was not possible." See Grey v Harrison [1996] VSC 74; [1997] 2 VR 359 at 366-367 per Callaway, JA; Madden v. Singvongsa [2003] VSCA 62 at [16] per Warren AJA. The Full Court of the Supreme Court of South Australia adopted a similar approach in Tiburzi v Butler [2017] SASCFC 89:

"In challenging the adequacy of the trial judge's reasons, the defendant commenced by noting the general obligation of a judge to give adequate reasons for a decision, and in particular to articulate the essential ground or grounds upon which the decision rests. The defendant acknowledged that in the context of the second stage of an application for further provision, it has been held that reasons for an appropriate provision need not be 'fully articulated', and that the amount of the provision need not be 'calculated in an arithmetic sense'. However, the basis for the amount provided should at least be stated in 'broad terms'."

1. In my view, the primary judge adequately explained his assessment of the proper provision. He weighed important considerations including the moral claim and need of the appellant, as well as assessing in broad overview the financial position and need of the first respondent. His Honour acknowledged the weight due to the testamentary wishes of the testatrix. Having analysed the financial and circumstantial position of both parties, he then engaged in what can only have been a process of instinctive synthesis. As already determined, the resulting assessment was well within his Honour's discretion. In my view, there was nothing more that needed to be or could be explained. There is no merit in ground 4.
2. It follows that the appeal must be dismissed. I would make that order.

THE PUBLIC TRUSTEE AS EXECUTOR OF THE ESTATE OF MAVIS JONES