BETWEEN: FGH as executor and trustee of the estate of IJ
First Defendant
FGH beneficiary of the estate IJ
Second Defendant
NOP
Fourth Defendant
Catchwords:
Family provision and maintenance – Application made by daughter against estate of mother – Value of deceased's estate about $6 million – Whether entitlement on intestacy makes adequate provision for the proper maintenance and support of the fourth defendant – Where fourth defendant and deceased estranged – Impact of estrangement on application – Impact of potential or actual insolvency on application – Where brother has no special claim other than his relationship to the testator – Where the fourth defendant is in substantial debt – Failure on intestacy for sufficient provision for applicant – Provision made out of will of deceased – Creation of a discretionary trust where fourth defendant is the primary beneficiary and her issue are the class of general beneficiaries
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AB v FGH [2022] WASC 244
Case
[2022] WASC 244
Decision Date
CaseChat Overview and Summary
AB v FGH is a case in which the fourth defendant, a daughter of the deceased, applied to the court for further provision from her mother's estate under the Family Provision Act 1972 (WA). The court had to determine whether the deceased's estate, as disposed of by her will, made adequate provision for the proper maintenance, support, education, or advancement in life of the fourth defendant. The court had to consider the estrangement between the fourth defendant and the deceased, and the financial circumstances of the fourth defendant, who was in substantial debt. The court held that the disposition of the deceased's estate did not make adequate provision for the fourth defendant's maintenance, support, education, or advancement in life, and that the estrangement between the fourth defendant and the deceased did not preclude a finding that the deceased's will failed to make adequate provision for the fourth defendant. The court also held that the grant of provision through a discretionary trust would achieve the object of the Act without disturbing any entitlement of the fourth defendant's creditors. The court ordered that a sum of $850,000 should be set aside from the estate as provision for the fourth defendant's maintenance and support to be held on the terms of a discretionary trust in which the fourth defendant is the primary beneficiary, and her issue are the class of general beneficiaries. The trustees should include a professional person such as a lawyer or an accountant, preferably one that already had a professional relationship with the fourth defendant. Otherwise, the trust should enjoy the powers and operate in the manner proposed by the fourth defendant.