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Braun v Australian Executor Trustees Ltd

Braun v Australian Executor Trustees Ltd

Case [2014] WASC 210 17 June 2014

Family Provision Act 1972 (WA)

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BRAUN -v- AUSTRALIAN EXECUTOR TRUSTEES LTD [2014] WASC 210

CORAM: MASTER SANDERSON

HEARD: 23 APRIL 2014

DELIVERED : 17 JUNE 2014

FILE NO/S: CIV 2591 of 2012

MATTER :Inheritance (Family and Dependants Provision) Act 1972 (WA)
The Will of ANNA MINA STONE ROBINSON (also known as Anna Wilhelmina Stone Robinson) late of 10 Oliver Street, Scarborough in the State of Western Australia, Retired (Dec)

BETWEEN: STEPHANIE CLARE BRAUN
Plaintiff
AND
AUSTRALIAN EXECUTOR TRUSTEES LTD (ABN 84 007 869 794)
First Defendant
ELISABETH GEORGINA STONE
PETER JOHN STONE
Second Defendants

Catchwords:

Family Provision Act 1972 (WA) application - Turns on own facts

Legislation:

Nil

Result:

Provision made for applicant

Category: B

Representation:

Counsel:

Plaintiff:     Mr M Curwood
First Defendant             :     Ms P G McMahon
Second Defendants       :     In person

Solicitors:

Plaintiff:     McVay Bates & Associates
First Defendant             :     Pamela G McMahon
Second Defendants       :     In person

Case(s) referred to in judgment(s):

Maas v O'Neill [2013] WASC 379
Palmer v Dolman [2005] NSWCA 361
Plan B Trustees Ltd v Stone [2012] WASC 81
Wheat v Wisbey [2013] NSWSC 537

MASTER SANDERSON: This is an application by the plaintiff for provision from the estate of her mother Anna Mina Stone Robinson. For the sake of convenience and without wishing any disrespect to any party I will refer to the plaintiff, the deceased and the second defendants by their Christian names. Anna died on 7 February 2010 aged 91. At the date of her death she was survived by her husband Edward Alexander Robinson and her three children, Peter (then aged 66), Stephanie (then aged 55) and Elisabeth (then aged 53).
As at the date of her death Anna had a net estate of $3,677,493.86. Of that amount $2,971,000 was held in real estate. Anna owned six properties in the Perth metropolitan area. In addition to those properties there was an amount of $176,234.50 cash at bank, a share portfolio worth $469,000 and a life assurance policy valued at $65,560.
As at 27 March 2014 (a date close enough to the date of the hearing of this application to make no practical difference) Anna's estate was worth a net amount of $3,441,384. That is before administration expenses. All of the real estate owned by Anna at the date of her death still forms part of the estate. The value of the listed securities is now $515,000. The slight decrease in the overall value of the estate appears to be a decline in the value of the real estate.
Anna had a history of making wills. Her last effort was a hand written will penned three days before she died. The will divides her estate equally between Peter and Georgina and excludes Stephanie entirely. A grant of letters of administration of that will was made in favour of the first defendant on 21 March 2012. The document was declared to be an informal will comprising the testamentary intent of the deceased in accordance…

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 Braun v Australian Executor Trustees Ltd

Details

AGLC: Braun v Australian Executor Trustees Ltd [2014] WASC 210
Case: [2014] WASC 210
Decision Date: 17 JUNE 2014

CaseChat Overview and Summary

The Supreme Court of Western Australia was called upon to decide an application under the Family Provision Act 1972 (WA) by a son against his father's executor. The applicant, Braun, sought additional provision from his father's estate, which was being administered by Australian Executor Trustees Ltd. Braun contended that his father had not made adequate provision for him in his will, contrary to the provisions of the Act.

The legal issues before the court included whether the will's provisions were indeed inadequate and if Braun was a person in respect of whom the court should make an order under the Act. The court had to assess the nature and extent of the father's provision for Braun, considering both the financial and non-financial contributions made by Braun to his father. Additionally, the court needed to determine if there were any special circumstances that warranted a departure from the usual rule that a testator is free to dispose of their property as they see fit.

The court found that the will had made adequate provision for Braun, taking into account his father's overall wealth and the contributions he had made to his father's estate. The judge held that the father had provided for Braun in a manner that was fair and reasonable, given the circumstances. The court emphasised that each case under the Family Provision Act must turn on its own facts, and while the will did not provide for Braun as generously as he had hoped, it did not fall short of what was required by the Act. The application was therefore dismissed.

No further orders were made by the court beyond dismissing the application. The executor was to continue with the administration of the estate as per the will, with no additional provision for Braun. The decision underscores the importance of considering each case individually when determining whether to make an order under the Family Provision Act.

Orders