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Abbott v Abbott

Abbott v Abbott

Case [2025] WASC 30 6 February 2025

Mutual Will Agreement

Family Provision Act 1972 (WA)

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ABBOTT -v- ABBOTT [2025] WASC 30
CORAM:   HOWARD J
HEARD:   11, 12, 16 and 18 DECEMBER 2024
DELIVERED          :   6 FEBRUARY 2025
FILE NO/S:   CIV 1567 of 2023
BETWEEN:   NORELLE ANITA ABBOTT
Plaintiff
AND
SHARI LEE ABBOTT as executor of the will of KENNETH CHARLES ABBOTT
First Defendant
SHARI LEE ABBOTT
Second Defendant
LUANA ELISE ABBOTT
Third Defendant
BRYCE DESMOND ABBOTT
Fourth Defendant
MATTHEW DANIEL ABBOTT
Fifth Defendant

Catchwords:

Succession - Wills and Estates - Applications under s 6 of the Family Provision Act 1972 (WA) for further and better provision from the testator's estate by two daughters of the deceased - Mutual Will Agreement between deceased and surviving spouse - Whether the will made adequate provision for the proper maintenance, support, education or advancement in life for the applicants - Application granted in respect of one applicant - Deficiencies in case presented for the other applicant

Legislation:

Family Provision Act 1972 (WA), s 6

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P G McGowan
First Defendant	:	Mr C Breheny
Second Defendant	:	Mr C Breheny
Third Defendant	:	Mr P G McGowan
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Macdonald Rudder
First Defendant	:	Hopgoodganim Lawyers (Perth)
Second Defendant	:	Hopgoodganim Lawyers (Perth)
Third Defendant	:	Haynes Leeuwin
Fourth Defendant	:	In Person
Fifth Defendant	:	In Person

Cases referred to in decision:

AB v FGH [2022] WASC 244
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Blendell v Byrne [2019] NSWSC 583
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd (1938) 38 SR (NSW) 176
Boscolo v Australian Unity Trustees Ltd [2023] WASC 391
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
FGH v NOP [2023] WASCA 177
FGH v NOP [2024] HCASL 95
Grant v Roberts [2019] NSWSC 843
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Lloyd-Williams v Mayfield (2005) 63 NSWLR 1
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGeough v Blatchford [2019] WASC 454
McGrath v Eves [2005] NSWSC 1006
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Salmon v Osmond [2015] NSWCA 42; (2015) 14 ASTLR 442
Smith v Smith [1986] HCA 36; (1986) 161 CLR 217
Stone v Braun [2015] WASCA 103
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wheat v Wisbey [2013] NSWSC 537
Zitman v Zitman [2023] WASC 135

HOWARD J

Grounds of appeal

[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.

Continue reading Abbott v Abbott

Details

AGLC: Abbott v Abbott [2025] WASC 30
Case: [2025] WASC 30
Decision Date: 6 FEBRUARY 2025

CaseChat Overview and Summary

The case involved two daughters, who were the applicants, seeking additional provision from their father's estate under section 6 of the Family Provision Act 1972 (WA). The deceased had entered into a mutual will agreement with the surviving spouse, which was executed shortly before his death. The applicants contended that the will did not provide adequate provision for their proper maintenance, support, education, or advancement in life. The court was required to determine whether the provisions made in the will were sufficient and whether there was a need for further provision for the applicants.

The central legal issue was whether the will made adequate provision for the applicants' proper maintenance, support, education, or advancement in life. The court examined the mutual will agreement and the terms of the will, considering the circumstances of the deceased at the time of making the will and the financial position of the estate. The applicants had to demonstrate that they were not adequately provided for under the will. The court also had to determine whether the applicants' claims were consistent with the mutual will agreement and whether any deficiencies in their case should result in their applications being dismissed.

The court found that the will made adequate provision for the proper maintenance, support, education, and advancement in life for one of the applicants, and thus dismissed her application. However, in respect of the other applicant, the court found deficiencies in the case presented. The court held that the will did not make adequate provision for her proper maintenance, support, education, or advancement in life. Consequently, the court granted the application of the second applicant. The court considered various factors, including the applicants' financial circumstances, their needs, and the provisions made by the deceased in the will.

The final orders of the court were that the application of the first applicant was dismissed, while the application of the second applicant was granted. The court directed that further and better provision be made for the second applicant from the estate of the deceased. The specific amount of provision was to be determined by further orders of the court.

Orders