Bushby v Gayle Kristin Bushby as Executor of the Estate of Florence Born
[2024] WASC 54
•1 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BUSHBY -v- GAYLE KRISTIN BUSHBY as Executor of the Estate of FLORENCE BORN [2024] WASC 54
CORAM: SEAWARD J
HEARD: ON THE PAPERS
DELIVERED : 1 MARCH 2024
FILE NO/S: CIV 1438 of 2022
BETWEEN: GAYLE KRISTIN BUSHBY
Plaintiff
AND
GAYLE KRISTIN BUSHBY as Executor of the Estate of FLORENCE BORN
First Defendant
ST JOHN AMBULANCE (WESTERN AUSTRALIA)
Second Defendant
ROYAL FLYING DOCTOR SERVICE
Third Defendant
THE FRED HOLLOWS FOUNDATION
Fourth Defendant
CANCER COUNCIL OF WESTERN AUSTRALIA
Fifth Defendant
HEART FOUNDATION OF AUSTRALIA (WA DIVISION)
Sixth Defendant
THE AUSTRALIAN ANIMAL PROTECTIONS SOCIETY
Seventh Defendant
Catchwords:
Practice and procedure - Preliminary question of law - Standing
Family Provision Act1972 (WA) - Whether plaintiff is eligible person to make an application for further provision under s 6(1) - Whether plaintiff has standing pursuant to s 7(1)(eb) - Stepchildren - Statutory construction - Meaning of 'estate of a parent' - Whether 'estate of a parent' should be confined to 'deceased estate' - Whether 'estate of a parent' should include inter vivos gifts and joint property subject to survivorship
Legislation:
Family Provision Act1972 (WA) s 6, s 7(1)(eb)
Rules of the Supreme Court 1971 (WA) O 32
Result:
Preliminary question of law answered
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Jebb Legal |
| First Defendant | : | Alto Legal |
| Second Defendant | : | Lavan |
| Third Defendant | : | Lavan |
| Fourth Defendant | : | Lavan |
| Fifth Defendant | : | Lavan |
| Sixth Defendant | : | Lavan |
| Seventh Defendant | : | Lavan |
Cases referred to in decision:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Bail v Scott-McKenzie [2016] VSC 563
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Corin v Patton (1990) 169 CLR 540
Earl of Zetland v Lord Advocate (1878) LR 3 App Cas 505
Easterbrook v Young (1977) 136 CLR 308
Eastgate v Equity Trustees Executors & Agency Co Ltd (1964) 110 CLR 275
Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76
FGH v NOP [2023] WASCA 177
Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404
Popple v Rowe [1998] 1 VR 651
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Schaechtele v Otto Wilhelm Schaechtele as Executor of the will of Maria Regina Grundner-Schaechtele [2008] WASC 148
Stanford v Stanford [2021] NSWSC 1469
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wright v Gibbons (1949) 78 CLR 313
Young v Kestel [2003] WASCA 190
SEAWARD J:
Introduction
This application concerns the estate of the late Florence Born, who died on 11 April 2021, leaving a will dated 20 February 2018. The question which arises for my consideration is whether the plaintiff has standing to bring an action for further provision from Florence's estate pursuant to s 6 of the Family Provision Act 1972 (WA) (the Act).
Background
The plaintiff is the daughter of Audrey Born and Eric Edmund Born. Audrey Born died in 1986, and in 1991 Eric Born married Florence Born. The plaintiff is therefore the step-daughter of Florence.
The first defendant is the plaintiff in her capacity as the executor of Florence's estate.
The second - seventh defendants are various charities who have been left the residuary estate in Florence's will.
On 5 May 2022, the plaintiff filed an originating summons seeking further provision from Florence's estate pursuant to s 6 of the Act.
The second - seventh defendants dispute the standing of the plaintiff to bring a claim under s 6 of the Act. The second - seventh defendants' broad position is that the plaintiff does not fall into any of the categories of person who is eligible to bring a claim under s 6 of the Act, as specified in s 7 of the Act. The second - seventh defendants previously applied for summary judgment against the plaintiff on this basis. In refusing that application, Master Sanderson provided the following explanation:[1]
I am satisfied that the plaintiff's claim here is arguable. There's no authority in this state on this question, and to determine the issue on an interlocutory basis would, I think, be inappropriate. This is a matter which should be fully argued, and a determination made on all issues arising between the parties. Once that is done, if either party is dissatisfied with the decision, they can then take all matters to the Court of Appeal.
[1] ts 1 September 2022, 5.
The plaintiff then applied by way of chamber summons filed on 25 March 2023 for orders pursuant to O 32 of the Rules of the Supreme Court 1971 (WA) and the court's inherent jurisdiction that:
1.The trial of these proceedings shall be split with the standing of the plaintiff pursuant to section 7(1)(eb) of the Family Provision Act (1972) to be determined separately and before the hearing and determination of all other issues arising on the claim made by the Plaintiff in these proceedings.
2. The second to seventh defendants to pay the costs of this application to be fixed.
The second - seventh defendants neither consented nor opposed the plaintiff's application and did not file any affidavit or any additional submissions in relation to the application.
At the hearing of the special appointment on 12 May 2023, the first defendant indicated they did not oppose the application for a preliminary question of law, and has not played any substantive role in the application.[2]
[2] ts 12 May 2023, 21.
At the special appointment, after hearing from the parties in relation to the application, and reviewing the submissions and affidavit evidence filed, I made the following order:
1.The trial of these proceedings shall be split with the question of whether the plaintiff has standing pursuant to section 7(1)(eb) of the Family Provision Act (1972), to make an application under section 6 of the Family Provision Act 1972 to be determined [separately] and before the hearing and determination of all other issues arising on the claim made by the plaintiff in these proceedings.
I then made orders programming the filing of an agreed statement of facts and submissions. Those programming orders were not complied with, however, because in the interim the parties commenced settlement negotiations with a view to settling the matter.
On 15 August 2023, the parties filed a memorandum of consent orders whereby the parties requested the following orders be made by the court:
Upon the application of the plaintiff by Originating Summons 5 May 2022 and pursuant to the rules of the Supreme Court 1971 (WA) Order 43 Rule 16, the parties hereby agree that the distribution of the estate of the late Florence Born pursuant to the will dated 20 February 2018 was not such as to provide adequate provision for the plaintiff's proper maintenance, support, education and advancement in life and the parties hereby consent to orders that:
1.The last Will and Testament of the late Florence Born (deceased) 20 February 2018 (Will) be altered by deleting clause 5(4) of the Will and substituting the following new clauses 5(4) and 5(5)
4. I give the sum of $720,000 to be shared equally between the following 6 charities:
i. ST JOHN AMBULANCE WESTERN AUSTRALIA Ltd
ii. ROYAL FLYING DOCTOR SERVICE
iii. THE FRED HOLLOWS FOUNDATION
iv. CANCER COUNCIL OF WESTERN AUSTRALIA
v. HEART FOUNDATION OF AUSTRALIA (WA DIVISION)
vi. THE AUSTRALIAN ANIMAL PROTECTIONS SOCIETY
5. The remainder of my Residuary Estate is to be paid be paid [sic] to Gayle.
2. A certified copy of these orders be included in the Court's Probate file and the First Defendant do deliver up and produce to the Supreme Court the Grant of Probate for that purpose.
3. There be no order for costs including in respect to any reserved costs.
4. The proceedings be otherwise dismissed.
I declined to make the orders sought by the parties on the papers, and instead listed the matter for a directions hearing on 22 August 2023. At that directions hearing, I indicated that I was not prepared to make the orders sought at that stage. My reason for declining to do so was that the orders sought by the parties proposed that the court exercise its discretion under s 6 of the Act. I indicated to the parties that before I could make the orders sought, I would need to be satisfied of the following matters (at least):
(1)that the plaintiff had standing to invoke the jurisdiction of the court under s 6 of the Act; and
(2) that there was sufficient evidence before me for me to be satisfied of the matters necessary for an exercise of the court's jurisdiction, being that:
(a)the disposition of Florence's estate effected by her will was not such as to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the plaintiff; and
(b)(if the above question is answered in the plaintiff's favour) that the court considers that the amount agreed as between the parties falls within the bounds of a reasonable exercise of the discretion to make such provision as the court thinks fit for the proper maintenance, etc, of the plaintiff.
See also Schaechtele v Otto Wilhelm Schaechtele as Executor of the will of Maria Regina Grundner-Schaechtele.[3]
[3] Schaechtele v Otto Wilhelm Schaechtele as Executor of the will of Maria Regina Grundner-Schaechtele [2008] WASC 148.
I indicated to the parties that, given the matters raised in the submissions filed in the matter to date regarding the question of standing, it was not clear to me that the plaintiff did meet the statutory standing threshold (although at that point in time I had not formed a final view on this issue). I indicated that I considered it would be necessary for me to continue to deal with this question as a preliminary question of law as ordered on 12 May 2023. Further, I indicated that if I formed the view that the plaintiff did have standing, I was of the view that the affidavit evidence filed by the plaintiff to date did not appear to address all of the matters I would need to have regard to in considering the exercise of the court's jurisdiction under s 6 of the Act (even in the context of the consent orders). This is unsurprising, given one of the reasons advanced by the plaintiff in favour of a split trial was that it would avoid putting the plaintiff to the expense of preparing all necessary affidavit evidence if the outcome of the legal question was that the plaintiff was not an eligible applicant.[4]
[4] Plaintiff's submissions in support of an application under O 32 r 4 dated 26 April 2023 [20] - [22].
In those circumstances the plaintiff requested, and the defendants did not object, to the preliminary question of law being determined on the papers, relying on the written submissions filed by the parties to date, with the issue of the affidavit evidence to be considered separately. Accordingly, I made orders to this effect, and indicated that the second - seventh defendants were to advise my chambers which particular facts were agreed for that purpose.
Scope of the preliminary question of law
The scope of the preliminary question of law, as ordered on 12 May 2023, is limited to considering whether the plaintiff has standing pursuant to s 7(1)(eb) of the Act. This is consistent with the application for a split trial made by the plaintiff.
However, on 21 August 2023, the day prior to the directions hearing listed for 22 August 2023, the plaintiff filed an outline of submissions in support of the proposed consent orders. In those submissions, the plaintiff submits that the plaintiff also has standing pursuant to s 7(1)(ea) of the Act, which provides that an application for provision under the Act may be made by:
a stepchild of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased's death;
This is the first time (that I can discern) that this alternative basis for standing has been relied on by the plaintiff.[5]
[5] Par [2] of the plaintiff's affidavit sworn 4 May 2022 and filed in support of her originating summons refers to s 7(1)(eb) of the Act as being the basis of the plaintiff's eligibility to bring her claim and the other documents filed by the plaintiff to date also rely on s 7(1)(eb) of the Act. Whilst s 7(1)(ea) is cited in the 18 July 2022 submission, the subsection is not relied upon by the plaintiff as to the source of her eligibility.
I do not consider it is appropriate for me to consider this proposed expanded scope of the preliminary question of law for several reasons. First, it is outside the scope of the orders made on 12 May 2023; secondly, there is no application for leave to expand the scope of the preliminary question of law; thirdly, I have not received any legal submissions from the second - seventh defendants in relation to either any application for leave to expand the scope of the preliminary question or on the substantive merits of the new standing submission; and finally, it is not clear to me that this is an appropriate question for a preliminary question of law. The precise facts relied upon in relation to this new proposed basis for standing are not clearly articulated and there is no indication as to what facts are agreed (if any) by the second - seventh defendants for the purposes of deciding the question.
In these reasons I have therefore proceeded only to consider whether the plaintiff has standing pursuant to s 7(1)(eb) of the Act.
However, I make the preliminary observation that the plaintiff's case in relation to eligibility under s 7(1)(ea) of the Act appears to proceed on the somewhat unorthodox proposition that the words 'immediately before the deceased's death' in s 7(1)(ea) of the Act should not be given their plain and ordinary meaning.
Agreed facts
For the purposes of the preliminary question of law, the plaintiff and the second - seventh defendants have agreed the following facts:
(1)the plaintiff, Gayle Kristin Bushby, is the daughter of Eric Edmund Born and Audrey Born;
(2)Audrey Born died in 1986;
(3)Eric Born married Florence Born on 1 June 1991;
(4)the plaintiff is the step-daughter of Florence Born;
(5)Eric Born died on 31 March 2014;
(6)Florence Born received the following property from Eric Born:
Description
Total
Inter vivos Cash Transfers.
Four separate transfers in 2007, 2008, 2009 and 2010.
$174,001.90
Inter vivos Share Transfers.
Shares transferred from Eric Born into a joint account on 4 October 2012.
$363,207.02
Inter vivos Cash Transfer from Joint Account in the names of Eric Born and Florence Born to an account solely in Florence Born's name.
$105,816.86
Total inter vivos Transfers
$643,025.78
Transfer on Survivorship: comprising an investment portfolio with a value of $431,173.83 and real property with a value of $310,000.
$741,173.83
Distribution from Estate of Eric Born
$69,122.25
Total
$1,453,321.86
(7)Florence Born died on 11 April 2021, leaving a will dated 20 February 2018. That will (relevantly) provided that leaving aside specific gifts of jewellery and other personal property:
5. Subject to the provisions of clauses 3 and 4 my Trustee shall hold all my property ON TRUST:
(1)to pay my debts and testamentary and executorship expenses;
(2)to pay all Duties;
(3)to hold the remainder of my property (Residuary Estate) to divide it as follows:
(i)ONE HUNDRED THOUSAND DOLLARS ($100,000) for Gayle if she survives me;
(ii)TEN THOUSAND DOLLARS ($10,000) for Daryl if she survives me; and
(iii)FIFTY THOUSAND DOLLARS ($50,000) to be divided equally between my nephews, JIM LEE MAN THONG (Jim), LEE YAT THONG (Lee) and PHILIP LEE BENG CHUAN (Philip) as may survive me or all to the survivor of them;
(4)the remainder of my Residuary Estate to be divided equally between:
(i) THE ST JOHN AMBULANCE AUSTRALIA (WESTERN AUSTRALIA) INC to be applied towards the charity purposes of its Augusta Subcentre;
(ii) ROYAL FLYING DOCTOR SERVICE OF WESTERN AUSTRALIA (WESTERN OPERATIONS);
(iii) THE FRED HOLLOWS FOUNDATION for its general purposes;
(iv) CANCER COUNCIL OF WESTERN AUSTRALIA (INC);
(v) NATIONAL HEART FOUNDATION OF AUSTRALIA (WESTERN AUSTRALIA) for its general purposes; and
(vi) THE AUSTRALIAN ANIMAL PROTECTION SOCIETY.
For completeness, I note that at all times the parties have proceeded on the basis that any property jointly owned by Eric and Florence was owned as joint tenants, and not as tenants in common.
Legislative provisions
The long title to the Act provides that it is:
An Act to make provision for the maintenance and support of the family and dependants of deceased persons out of the assets of the deceased's estate, and for other purposes incidental thereto.
Section 6 of the Act is concerned with the court's power to order provision (or further provision) be made from a deceased's estate. Section 6(1) provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.
Section 7(1) of the Act identifies the persons who are able to make an application for further provision under s 6(1) of the Act. Relevant for present purposes is s 7(1)(eb) which provides:
(1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons —
…
(eb)a stepchild of the deceased, if —
(i) the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
(ii) the value of that property, at the time of the parent's death, is greater than the prescribed amount;
Regulation 3 of the Family Provision Regulations 2013 (WA) prescribes the value of that property referred to in s 7(1)(eb) of the Act. When the regulations were first made on 16 January 2013, reg 3 provided:
The amount prescribed for the purposes of section 7(1)(eb) of the Act is $460 000.
However, on 16 May 2015, reg 3 was amended and since that date has provided:
The amount prescribed for the purposes of section 7(1)(eb) of the Act is $517 000.
The term 'stepchild' is defined in s 4 of the Act as:
a person who was alive on the date on which the deceased married or entered into a de facto relationship with a parent of the person but who is not a child of the deceased;
The above provisions concerning stepchildren were introduced into the Act by the Inheritance (Family and Dependants Provision) Amendment Act 2011 (WA) (Amendment Act). The history of those amendments is that the Inheritance (Family and Dependants Provision) Amendment Bill 2011 (WA) (2011 Bill) was originally introduced into the Legislative Council on 10 August 2011, with the second reading speech occurring on the same day.[6] The 2011 Bill was introduced into the Legislative Assembly on 31 August 2011, with the second reading speech on the same day.[7] The 2011 Bill was, in due course, debated and passed by both Houses of Parliament. The Amendment Act received Royal Assent on 25 October 2011, however, the operative provisions did not commence until 16 January 2013.[8]
[6] Western Australia, Parliamentary Debates, Legislative Council, 10 August 2011, 5498 - 5499.
[7] Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 2011, 6481 - 6482.
[8] Western Australian Government Gazette, No 4, 15 January 2013, 79 - 80.
Prior to the operative provisions commencing, the government of the day identified some problems of interpretation in relation to s 7(1)(eb) and the definition of 'stepchild'. Accordingly, the Inheritance (Family and Dependants Provision) Amendment Bill 2012 (WA) (2012 Amendment Bill) was introduced into the Legislative Council on 15 May 2012, with the second reading speech occurring on the same day.[9] The 2012 Amendment Bill was introduced to the Legislative Assembly on 14 August 2012, and again the second reading speech occurred on the same day.[10] The 2012 Amendment Bill amended the Amendment Act by introducing the definition of stepchild and the wording of s 7(1)(eb) that exist today. The operative provisions of the Amendment Act (as amended by the 2012 Amendment Bill) commenced on 16 January 2013.
[9] Western Australia, Parliamentary Debates, Legislative Council, 16 May 2012, 2610 - 2611.
[10] Western Australia, Parliamentary Debates, Legislative Assembly, 14 August 2012, 4889 - 4891.
Overview of plaintiff's case
The plaintiff relies on her written submissions filed on 18 July 2022 and 21 August 2023.
The plaintiff submits that resolution of the preliminary question of law turns on the definition of 'estate of a parent' in s 7(1)(eb), and whether it should be read down to mean 'deceased estate' or whether it should (as the plaintiff submits) be taken to mean 'a living person's assets' and therefore include inter vivos gifts or transfers made by the parent to the stepparent, and property the stepparent became the sole owner of by right of survivorship.[11]
[11] Plaintiff's submissions 18 July 2022 [2]; Plaintiff's submissions 22 August 2023 [7] - [8], [24] - [29].
There is no dispute that the answer to the question is one of statutory construction. In support of her construction, the plaintiff relies on the Act being remedial in nature and therefore submits that the provisions should be construed so as to give the most complete remedy that the phraseology of the statutes permits. The plaintiff also relies on the legislative history of the Amendment Act, including the wording of the explanatory memorandum and the fact that the term 'estate' can have different meanings in different contexts.[12]
[12] Plaintiff's submissions 18 July 2022 [2] - [3], [19] - [27]; Plaintiff's submissions 22 August 2023 [18] ‑ [21].
Overview of the second - seventh defendants' case
The second - seventh defendants rely on their written submissions dated 6 July 2022 and 29 July 2022, filed in support of the earlier summary judgment application.
The second - seventh defendants submit that as a matter of statutory construction, the reference to 'estate of a parent' in s 7(1)(eb) of the Act is a reference to 'deceased estate'. The second - seventh defendants submit that this is the plain reading of the section and is consistent with the meaning of 'estate' used throughout the Act.[13] The second - seventh defendants also submit that their construction is consistent with the explanatory memorandum for the Amendment Act and with other definitions of 'estate' in this context in other legislation.[14] In so far as the Act is remedial in nature, the second - seventh defendants' position is that this does not alter the plain meaning of the text when considered in the context of the purpose of the legislation.[15]
[13] Second - seventh defendants' submissions 6 July 2022 [10].
[14] Second - seventh defendants' submissions 6 July 2022 [11] - [12].
[15] Second - seventh defendants' submissions 29 July 2022 [3] - [6].
The second - seventh defendants therefore submit that neither property the subject of a joint tenancy (which the surviving stepparent owns absolutely upon the death of the parent by virtue of survivorship) or property received by the stepparent from the parent during their lifetime, form part of the estate of the parent for the purposes of s 7(1)(eb) of the Act.[16]
[16] Second - seventh defendants' submissions 6 July 2022 [10], [15] - [27]; Second - seventh defendants' submissions 29 July 2022 [7] - [8].
Disposition
The preliminary question of law raises an issue regarding the construction of s 7(1)(eb) of the Act which has not, to date, been the subject of any judicial authority. The resolution of the preliminary question of law involves a question of statutory construction of the relevant provisions of the Act.
The general principles concerning the process of statutory construction are well known. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[17] The court may have regard to extrinsic material to confirm the ordinary and natural meaning of statutory provisions or in cases of ambiguity or uncertainty,[18] but extrinsic material cannot be used to negate the plain meaning of statutory provisions.[19]
Text
[17] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
[18] Interpretation Act 1984 (WA) s 19.
[19] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
Given its importance, it is helpful to repeat the operative part of s 7(1)(eb) of the Act again:
a stepchild of the deceased, if —
(i) the deceased received or was entitled to receive property from the estate of a parent of the stepchild, otherwise than as a creditor of that estate; and
(ii) the value of that property, at the time of the parent's death, is greater than the prescribed amount;
The first matter to note is that there is no definition of the words 'estate' or 'estate of a parent' in the Act. The plaintiff refers to the dictionary meaning of 'estate' and observes that it contains a number of meanings depending on the context in which it is used.[20] In a legal context, the Oxford English Dictionary relevantly defines the noun 'estate' as:
11.a.The interest which any one has in lands, tenements, or any other effects; often with qualifying words or phrases, as an estate upon condition, estate in fee, estate for life, estate of inheritance, estate tail, estate from year to year, estate at will, etc. personal estate noun an interest in movables; but the phrases are often regarded as signifying the respective kinds of property. See real estate n. 1 and also fee n.2, tail n.2, etc.
12.a.Property, possessions, fortune, capital.
12.b.Accounts. The collective assets and liabilities of a person (esp. of a deceased person, a bankrupt, a cestui que trust) viewed as an entity capable of owing or being entitled to money, of being solvent or insolvent. Phrase, to wind up an estate. (By accountants often used in somewhat wider sense: The 'affairs' of a client so far as the accountant is concerned with them.)
[20] Plaintiff's submissions 21 August 2023 [24] - [25].
The plaintiff submits that the term 'estate' can, accordingly, be used in a context of a deceased person's assets (and liabilities), but also in the context of a living person's assets (and liabilities).[21] The plaintiff relies on the Guardianship and Administration Act 1990 (WA) as an example of a piece of legislation using 'estate' in the context of a living person's assets.[22] The second - seventh defendants, on the other hand, refer to the definition of 'estate' contained in an earlier version of the Succession Act 2006 (NSW) and the reliance placed on that term by Hallen J when considering the current version of the legislation.[23]
[21] Plaintiff's submissions 21 August 2023 [28].
[22] Plaintiff's submissions 21 August 2023 [29].
[23] See Stanford v Stanford [2021] NSWSC 1469; Defendants' supplementary outline of submissions dated 29 July 2022 [9].
I do not consider much assistance is gained from the definition of the term 'estate' in other legislation. As the parties' submissions acknowledge, it is necessary to construe the meaning of s 7(1)(eb) of the Act, and have regard to the meaning of the terms contained in that section in their own statutory context.
I also observe that there is no equivalent provision to s 7(1)(eb) in the relevant family provision legislation of the other states and territories. In some jurisdictions the legislation includes 'stepchild' within the definition of child, and therefore a stepchild is able to make an application for provision in the same manner as a child of the deceased.[24] In other jurisdictions a similar provision to s 7(1)(ea) of the Act exists,[25] and in Victoria a stepchild is able to make a claim for provision, but there are conditions on the eligibility of the stepchild which are different to the conditions in s 7(1)(ea) or s 7(1)(eb) of the Act.[26] There is no express reference to stepchildren in the NSW legislation.[27]
[24] Succession Act 1981 (Qld) s 40 and s 40A; Testator's Family Maintenance Act 1912 (Tas) s 2(1).
[25] Inheritance (Family Provision) Act 1972 (SA) s 6(g); Family Provision Act 1970 (NT) s 7(1)(d) and s 7(2)(b); Family Provision Act 1969 (ACT) s 7(1)(d) and s 7(2).
[26] Administration and Probate Act 1958 (Vic) s 90.
[27] Succession Act 2006 (NSW).
Returning to the text of the provision, one textual factor in favour of the plaintiff's construction is that in s 7(1)(eb) of the Act the reference is not to 'the deceased estate of a parent', but rather is a reference to 'the estate of a parent'. The lack of a specific reference to the parent's estate being a 'deceased estate' may suggest that the section is referring to the assets (and liabilities) of a living person.
However, s 7(1)(eb) of the Act does not grant stepchildren the unconditional ability to bring an application for further provision. Rather, s 7(1)(eb) conditions the eligibility of a stepchild by reference to property being 'received' by the deceased from the estate of a parent which meets a prescribed value 'at the time of the parent's death'. These textual references to 'received' and 'at the time of the parent's death' are consistent with the reference to the 'estate of a parent' meaning the 'deceased estate of a parent'.
Conditioning the eligibility of an applicant by reference to property which is valued at the time of the parent's death is consistent with a construction whereby the only property intended to be captured is property received upon the death of the parent from the parent's deceased estate. The text does not include any mechanism for valuing property received during the lifetime of the parent, which is consistent with a construction which excludes property received other than from the parent's deceased estate.
Conditioning the eligibility by reference to property 'received' from the estate of a parent, or property the deceased was 'entitled to receive', is also consistent with a construction which excludes property that is not 'received' from the parent at all, but rather is property which the deceased already jointly owned, and the sole ownership of which arises by way of operation law in the form of survivorship.
Context and purpose
It is also necessary to consider s 7(1)(eb) in its statutory context. In that regard, it is appropriate to start with s 6(1) of the Act, which provides the court with the power to order that such provision as the court thinks fit be made out of the estate of a deceased for adequate provision for the proper maintenance, support, education or advancement in life of any of the persons mentioned in s 7 of the Act.
The text of s 6 reveals the following three requirements for exercising the power it confers:
(1) the application must be made by a person who is an eligible applicant under s 7;
(2) the court must form an opinion that the disposition of the deceased's estate effected by his or her will, or the law relating to intestacy, is not such as to make adequate provision for the proper maintenance, support, etc, of that person; and
(3) the court's power thus being enlivened, the court may then, in the exercise of its discretion, order such provision as the court thinks fit for the purpose of making adequate provision for the proper maintenance, support, etc, of the successful applicant out of the estate of the deceased.
Section 10 of the Act provides that every provision made by order shall, (subject to the Act):
operate and take effect either as if the same had been made by a codicil to the will of the deceased … or, in the case of intestacy, as a modification of the applicable rules of distribution.
Section 14(1) of the Act requires that every order in which provision is made shall specify the part or parts of the estate of the deceased out of which such provision shall be raised or paid. Section 14(2) provides that unless the court orders otherwise, the burden of any provision shall, as between the persons beneficially entitled to the estate of the deceased, be borne by those persons in proportion to the value of their respective interests in such estate. Section 14(4) provides that in every case where an order is made, the court shall direct that a certified copy of the order or alteration be made upon the probate of the will or the letters of administration of the estate of the deceased.
When read in context, it is clear that the references in all other sections of the Act to 'estate' are references to a deceased estate and not the estate of a person whilst living. This is unsurprising given the context and history of the Act.
In Barns v Barns,[28] Gleeson CJ explained the general scheme of legislation such as the Act as follows:
3The general scheme of the original legislation, which is replicated in the Act, but which has since been altered in later legislation in the United Kingdom, and some Australian jurisdictions, was relatively simple. It identified certain classes of person, typically a spouse, parent, child, or sibling, who might have a moral claim upon the bounty of a deceased. Where a deceased who was subject to such a moral claim failed to make adequate testamentary provision for the maintenance, education or advancement of such a person, then the court was empowered, in its discretion, to order that provision for such person be made out of the estate of the deceased.
4Such legislation was necessarily limited in its effect by the testamentary setting in which it operated. The capacity of a court to give effect to the moral claims of a person was limited by the extent of the deceased's estate, as well as by other competing claims on the deceased's bounty. The legislation had no practical effect in relation to property of which the deceased was not the beneficial owner at the time of death. Thus, a legally effective disposition of property prior to death placed such property beyond the reach of the legislation. This inherent limitation in the legislative scheme was emphasised by a statutory provision that an order made in favour of a successful claimant should take effect as a codicil to the deceased's will executed immediately before death.
5In recent years, in some jurisdictions, amendments have been made to the legislative scheme. In New South Wales, for example, the Family Provision Act1982 introduced a concept of a 'notional estate'. However, the Act with which we are concerned follows the original scheme.
…
7Three matters may be noted. First, provision may be made, and can only be made, out of a deceased's estate; that is to say, out of property which is beneficially owned by the deceased at the time of death and which passes to the deceased's legal personal representative. Secondly, contractual obligations undertaken by a deceased during his lifetime, which bind an estate, may affect the property available to meet an order under the Act. For example, if, during his lifetime, a testator contracted to sell Blackacre, and the contract remained on foot at the time of death, although full beneficial ownership of Blackacre had not passed to the purchaser at the time of death, Blackacre would not be an available asset for the purposes of an order for provision, although the purchase price payable under the contract would be. And, of course, if the contract were subsequently rescinded, the position would change. Thirdly, the estate out of which an order for provision may be made is the available estate after meeting the liabilities of the deceased. Obligations incurred by a deceased, and binding upon a legal personal representative, must be taken into account in determining the extent of the estate out of which provision may be made.
[28] Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 (footnotes omitted).
This general summary of the scheme of Australian family provision legislation is equally applicable to the Act. The long title and the provisions referred to in these reasons are consistent with the summary of Gleeson CJ.[29] The second reading speech for the Inheritance (Family and Dependants Provision) Bill 1972 (WA), also makes it clear that a similar scheme was proposed:[30]
As with the Testator's Family Maintenance Act, this new legislation does not-and I emphasise 'does not'-confer any right to share in an estate. The only right conferred is the right to make an application to the Supreme Court for an order for provision of adequate maintenance and support of the family and dependants of deceased persons out of the assets of deceased persons' estates. However, the class of persons entitled to apply and the estates against which orders may be obtained have been widened.
…
It is considered that society's attitude to the right of a man, or of a woman, for that matter, to dispose of his or her property as he or she thinks fit even beyond doubt has changed. There is now a feeling that a deceased is under some moral obligation to make provision for the maintenance, education, and advancement in life of persons who in the normal course of human affairs had a close personal relationship with the deceased. Unless provision is made there should be means to satisfy the court that some provision should be made.
[29] See also Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [4], [8] - [11] and [111].
[30] Western Australia, Parliamentary Debates, Legislative Assembly, 23 March 1972, 272 - 273 (T D Evans, Attorney- General).
An essential element of the Act is that provision can only be made by the court out of a deceased's estate, being property which is beneficially owned by the deceased at the time of death and which passes to the deceased's legal personal representative, either by reason of a grant of probate or letters of administration.[31] There is no provision in the Act to allow for 'notional estates' or permitting the court to make provision for an eligible applicant from property not forming part of the deceased's estate.[32] Specific consideration was given at the time of the Amendment Act to introducing provisions allowing for notional estates, however as explained in the 2011 Second Reading Speech for the Amendment Act, Parliament expressly declined to include such provisions:[33]
A review of family provision legislation was commenced in 1991 by the Standing Committee of Attorneys-General of Australia, which approved the development of uniform succession law for all Australian states and territories. At the time, there was little consistency between succession laws across the states and territories. The Queensland Law Reform Commission coordinated the project and a model Family Provision Bill for introduction in each jurisdiction was presented to SCAG in July 2004. To date, the model Family Provision Bill has been partially adopted in New South Wales and is under consideration in other states and territories.
In this state, a working group comprising experts in the area drawn from the Supreme Court of Western Australia, academia, the Public Trustee's office, the independent bar and the legal profession has reviewed the model Family Provision Bill. The working group did not support much of the model Family Provision Bill, as it regarded that the benefits contained in the present family provision legislation should not be forgone for the purposes of uniformity alone.
…
It did not recommend provisions allowing for notional estates; that is, property that can be notionally added back to the estate of the deceased so that the court can use the property for distribution to an eligible person under the family provision legislation.
[31] Easterbrook v Young (1977) 136 CLR 308, 318; Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [7]; Young v Kestel [2003] WASCA 190 [68].
[32] Compare Succession Act 2006 (NSW) s 73 - 90, and in particular the reference to property held as a joint tenant in s 76(2)(b). For completeness, I note that this does not mean that inter vivos gifts or transaction are irrelevant to the consideration by the court of whether adequate provision has been made for an applicant or the exercise of the discretion in s 6(1) of the Act. Rather, it means that the pool of assets from which any provision can be made by the court is limited to the assets forming part of the deceased's estate.
[33] Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 2011, 6481 (CC Porter, Attorney General) (emphasis added).
The question which arises is whether the reference to 'estate' in s 7(1)(eb) of the Act should be given a different meaning to the other references to 'estate' in Act, and should instead be taken as a reference to the estate of a person whilst living.
There are no other provisions in the Act which suggest (either expressly or by implication) that a different meaning to 'estate' was intended in s 7(1)(eb) than the other references to 'estate' in the Act.
The Explanatory Memorandum of the Amendment Act is also consistent with the reference to 'estate of a parent' being a reference to the 'deceased estate of a parent'.
The Explanatory Memorandum provides the following in relation to what became s 7(1)(eb) of the Act:
Western Australia is the only state or territory that does not provide for stepchildren claims at all. A stepchild can now claim in limited circumstances. A stepchild of the deceased who was being maintained wholly or partly or was entitled to be maintained wholly or partly by the deceased immediately before the deceased's death is entitled to make a claim. Also, a stepchild of the deceased if the deceased had received or was entitled to receive property above an amount (which will be prescribed by regulation) from the estate of a parent of the stepchild can make a claim for family provision. An example of a stepchild's claim is where a child's parent re-partners and, as is common, the partners leave all of their estate to each other. In these situations there may be an understanding that on the death of the survivor of the partners, the survivor's stepchild can expect to receive all, or a substantial part of the estate which came to the surviving partner from the child's parent. However, for various reasons these understandings may not be adhered to. (emphasis added)
This clause is also referenced in the 2011 Second Reading Speech.[34]
[34] Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 2011, 6481 (CC Porter, Attorney General).
The use of the term 'leave' in the underlined part of the Explanatory Memorandum suggests reference is being made in the proposed clause to property being left by one partner to another upon the death of the former. It does not suggest reference is being made to property being 'given to' or 'gifted' by one partner to another during the lifetime of the former. Further, the use of the word 'leave' is not consistent with property already jointly owned by the deceased, full ownership of which arises by operation of the principle of survivorship.
In the second reading debates in the Legislative Council, the following reference was made to the operation of the proposed clause:[35]
Other issues concern stepchildren. The definition in clause 5 of the bill refers to a child of the deceased's spouse or de facto partner—if the de facto partner is one in whose favour an order can be made under the act—who was living when the deceased entered that marriage–de facto relationship and who is not a child of the deceased. Clause 9 of the bill provides for stepchildren to claim in either of two situations. The first is if they were, or were entitled to be, partly or wholly maintained by the deceased immediately before the deceased's death. The second is if the deceased was the beneficiary of the estate of the stepchild's parent and that share was worth more than the prescribed amount, otherwise than as a creditor of the deceased parent's estate. The latter addresses the situation in which a step-parent, having benefitted from a child's parent's estate, leaves his or her own estate to only his or her natural children and cuts out the stepchildren. … However, I do note that this provision is limited in its operation and addresses only the worst cases. It will not apply if that prescribed amount is not reached, nor would it assist stepchildren with assets held by the child's parent and the deceased as joint tenants; for example, the matrimonial home, which could easily be the primary asset. This is because on the death of a joint tenant, the asset automatically goes to the survivor without forming part of the estate. This clause does not operate in that situation. I understand that the working group was unable to come up with a solution to this, partly because laws other than succession law apply also to joint tenants, and partly because of potential problems arising from inventing a notional estate; for example, if the actual value is less than the notional value. The best option therefore seems to be public education so that parents who repartner can make informed decisions about their property arrangements. For example, if they choose to own property together, they may opt for a tenancy in common arrangement rather than joint tenancy.
[35] Western Australia, Parliamentary Debates, Legislative Council, 30 August 2011, 6285 - 6286 (A Xamon) (emphasis added).
In the second reading debates in the Legislative Assembly, the following reference was made to the operation of the proposed clause:[36]
But this provision will allow for stepchildren in a blended family to make an application, especially in those circumstances in which the child's parent had died and left his or her estate to his or her spouse, as is often the case in marriages. If the husband predeceases the wife, he leaves his estate to the wife, and if she predeceases the husband—vice versa—she leaves the estate to the husband, but where does that leave the child of the first deceased; that is, the stepchild of the last of the two parents in the blended family to die? That was not included in the legislation, although the stepchild's mother or father in this blended relationship—their natural parent—might have had a considerable estate before marrying the step-parent. All of that estate then passes, on death, to the step-parent under the provisions of the will. Where does that leave the child in these blended family situations, which are very, very common in Australian society today?
[36] Western Australia, Parliamentary Debates, Legislative Assembly, 18 October 2011, 8209 (J R Quigley).
The above extracts confirm that the purpose of the amendments was to introduce the ability of stepchildren to be eligible applicants for the purposes of an application under s 6(1) of the Act. The extracts confirm that the purpose of the amendments was not to grant stepchildren the unconditional ability to make an application under s 6(1) of the Act. The extracts are also consistent with a construction of the term 'estate of the parent' as meaning the 'deceased estate of the parent', as revealed by an analysis of the text and context of s 7(1)(eb) of the Act.
Whilst the second reading debates are not the equivalent of the second reading speech or the explanatory memorandum, regard may be had to the debates in accordance with s 19(2)(h) of the Interpretation Act 1984 (WA). Further, I observe that no demurer was made in the second reading reply by the Parliamentary Secretary in the Legislative Council or by the Attorney-General in the Legislative Assembly to the above expressed understandings as to the operation of the proposed clause and the recommendations or findings of the working group. Rather, in reply, the Attorney-General said as follows:[37]
The question then became: how far do we allow acts of this Parliament to eat into that testamentary freedom, which, generally speaking, is a relatively broad freedom? We determined not to go as far as having anyone who is in a relationship of responsibility being able to apply under the Inheritance (Family and Dependants Provision) Act because we thought that was too great an impingement on testamentary freedom. However, the situation with stepchildren is qualitatively different. Most of us—there is bipartisan support for this legislation—would view the fact that, with a greater number of blended families, there should be some ability for a stepchild to make a claim in circumstances in which they have not been provided for. What we had to do was determine, if you like, where that line should be drawn, because, again, the view was taken that simply allowing stepchildren to make application when the deceased has not chosen to leave anything to the stepchildren in their will in any and all circumstances would be too great an inroad into testamentary freedom. The line was drawn in two areas.
…
The second area was when a stepchild of the deceased would be able to claim if the deceased had received, or was entitled to receive, property with a value greater than the prescribed amount from the estate of a parent or stepchild . In answer to the member for Mindarie's question, I understand that we will adopt a similar system to that which exists in other states; that is, that the point at which the person will be able to claim is if the amount that is left to the deceased is greater than the median house price, which at the moment is about $400 000 in Western Australia.
…
The rationale for that, as I understand it, is that to simply allow a stepchild to make a claim under the Inheritance (Family and Dependants Provision) Act 1972 in any circumstance in which their natural parent has left moneys upon their death to the step-parent, 'any moneys' would mean that there would be a very broad inroad into testamentary freedom. If, for instance, mum had died and had left a piece of jewellery of modest value to her husband, who is the stepfather of the mother's child in the relationship, the child's rights would be activated by virtue of a very modest amount being left by the woman to the man in the relationship. The question is: what is the right amount? There is probably no perfect answer to that, but what seems to have worked in the jurisdictions that have this system is dependent on the median house price. The idea is that it seems unfair if, for example, the woman died and left her house or something of similar value to her husband, and then the husband failed to make any kind of provision in his will upon his death to the natural child of the mother from whom he had inherited a sizeable asset, such as a house. And so it has been pegged to the median house price. That is the answer to that question.
[37] Western Australia, Parliamentary Debates, Legislative Assembly, 18 October 2011, 8210 - 8211 (CC Porter, Attorney General).
Again, the above extract is consistent with the term 'estate of the parent' meaning the 'deceased estate of the parent' as revealed by an analysis of the text and context of s 7(1)(eb) of the Act.
The plaintiff submits that the moral issue to which s 7(1)(eb) is directed is the perceived unfairness that arises where a deceased person fails to make adequate provision for a stepchild in circumstances where the deceased's estate was substantially enhanced by contributions made to it by the parent of the stepchild. The plaintiff submits that this unfairness is the same whether the property was received by the deceased inter vivos or on the death of the parent.[38] I observe that the task of statutory construction is to determine the objective meaning of the provisions in question. Section 7(1)(eb) of the Act does not grant stepchildren an unconditional right to bring an action for provision under s 6(1) of the Act. The questions of the fairness (or otherwise) of the eligibility criteria are matters for Parliament to consider.
Remedial legislation
[38] Plaintiff's submissions 18 July 2022 [27].
The plaintiff also draws in aid of her construction the remedial nature of the Act. As Gummow and Hayne JJ observed in Barns v Barns,[39] in respect of the like South Australian legislation, the Act is remedial in character and so to be construed so as to give the most complete remedy which its phraseology permits.
[39] Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [44]. See also, by way of example, Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119; Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494, 513; FGH v NOP [2023] WASCA 177 [34].
Whilst it is correct that the Act is remedial in character, that does not remove the requirement to construe s 7(1)(eb) of the Act by reference to the ordinary principles of statutory construction, namely having regard to the text, context and purpose. The remedial or beneficial nature of an act or a provision cannot result in a construction which is beyond the confines of 'the actual language employed' and what is 'fairly open' on the words used in the text.[40]
[40] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622, 638; IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 11.
It is also important not to fall into the constructional traps of articulating the remedial or beneficial nature of the legislation in question at too high a level of generality or commencing with the beneficial/remedial nature of the legislation. The remedial aspect of the Act is directed towards the power in s 6(1) of the Act to make provision for the proper maintenance etc of an applicant. As observed by the High Court in Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc,[41] it is inappropriate to read provisions conferring jurisdiction on or granting powers to a court by making implications or imposing limitations which are not found in the express words.[42] However, the remedial power in s 6(1) is, by its terms, conditional upon first establishing that an applicant is an eligible applicant falling within one of the subsections of s 7(1) of the Act. As both the text and the extrinsic material referred to above reveal, the eligibility of a stepchild under the Act is not unlimited or unconditional. Therefore, the beneficial or remedial nature of the Act lies in the power conferred in s 6(1) of the Act and not the eligibility criteria in s 7(1) of the Act.[43] Therefore, even making due allowance for the remedial or beneficial nature of the power contained in s 6(1) of the Act, I do not consider that the terms of s 7(1)(eb), when read in their context and having regard to the purpose of the amendments introducing the subsection, permit the construction advanced by the plaintiff.
Conclusion - construction
[41] Owners of 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404, 421.
[42] See also FGH v NOP [2023] WASCA 177 [35].
[43] See also Popple v Rowe [1998] 1 VR 651, 659 and Bail v Scott-McKenzie [2016] VSC 563 [72] ‑ [75].
Accordingly, having regard to the text, context and purpose of s 7(1)(eb) and the Act as a whole, I consider that, properly construed, the reference to the 'estate of a parent' means the 'deceased estate of a parent'. The extrinsic materials referred to above support this construction.
Survivorship and inter vivos transfers
Having regard to the proper construction of s 7(1)(eb) of the Act, the next question which arises is whether inter vivos transfers from Eric to Florence and the joint property 'transferred' to Florence by way of survivorship (both identified in [23] above) form part of the 'deceased estate of a parent' in the present case.
I am satisfied they do not.
It is well settled that inter vivos gifts or dispositions (being gifts or dispositions that take effect during the lifetime of the giver/donor) are not testamentary in nature and therefore do not form part of the estate of a deceased.[44] For completeness, I note that there is no submission or evidence before me challenging the validity of the inter vivos transfers or any submission or evidence that they were incomplete as at the date of Eric's death.
[44] Barns v Barns (2003) 214 CLR 169 [33] and [166]; Young v Kestel [2003] WASCA 190 [40].
In relation to the property 'transferred' by way of survivorship, it is also well established that a surviving joint tenant does not acquire an interest in the property on the death of the other joint tenant/s. The right of survivorship is not a 'right' in any legal sense. It does not involve a vesting by survivorship because there is no shift in ownership. When one joint tenant dies their interest ceases to exist, and it is not possible to dispose of that interest by testamentary disposition.[45] For completeness, I note that there is no submission or evidence before me that the joint tenancies were severed prior to Eric's death, or any submission or evidence that Eric and Florence held the legal estate in the jointly owned property for themselves as tenants in common in equity.
Prescribed amount
[45] Corin v Patton (1990) 169 CLR 540, 575 (Deane J). See also Earl of Zetland v Lord Advocate (1878) LR 3 App Cas 505, 516; Wright v Gibbons (1949) 78 CLR 313, 323 (Lathan CJ); Fadden v Deputy Federal Commissioner of Taxation(1943) 68 CLR 76, 84 (Williams J); Eastgate v Equity Trustees Executors & Agency Co Ltd (1964) 110 CLR 275, 282 - 284 (Kitto J) and 290 (Menzies J).
A final issue which arises in relation to the application of s 7(1)(eb) of the Act, is the appropriate prescribed figure. The submissions of the parties identify a possible issue in this regard, being whether the appropriate prescribed amount is that which was prescribed as at the date of the death of the parent or the time of the application by the stepchild under s 6(1) of the Act.
To illustrate the point, whilst the wording of s 7(1)(eb)(ii) is clear in so far as it provides that the value of the property in question must be assessed as at the time of the parent's death, the amount prescribed by the Regulations has changed over time. As at the time of Eric Born's death on 31 March 2014, the amount prescribed was $460,000, whereas as at the time of the plaintiff's originating summons on 5 May 2022 the amount prescribed was $517,000. The question arises as to which is applicable.
I do not consider it is necessary or appropriate to determine this question as part of determining the preliminary question of law, for two reasons. First, in the present case, the existence of the two different prescribed amounts is not material as unless either inter vivos transfers or the transfer on survivorship can be included in the calculation, Florence Born does not meet either prescribed amount. For the reasons I have outlined above, neither the inter vivos transfers nor the property 'transferred' by way of survivorship referred to in [23] can be included in the calculation. Secondly, I have not had the benefit of legal submissions (either written or oral) in relation to this issue.
Conclusion
For the above reasons, my conclusion in relation to the preliminary question of law is that the plaintiff is not a person to whom s 7(1)(eb) of the Act applies, because Florence Born did not receive, or was not entitled to receive, property from the estate of Eric Edmund Born (otherwise than as a creditor of that estate) which had a value at the time of Eric Born's death greater than the prescribed amount.
I will hear further from the parties as to the appropriate orders, the next steps in the proceedings and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
1 MARCH 2024
2
12
2