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Butcher v Craig

Butcher v Craig

Case [2009] WASC 164 15 June 2009

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Claim by adult son

Turns on own facts

Succession Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BUTCHER -v- CRAIG [2009] WASC 164

CORAM: MASTER SANDERSON

HEARD: 24 JUNE 2008 & 17 FEBRUARY 2009

DELIVERED : 15 JUNE 2009

FILE NO/S: CIV 1886 of 2006

BETWEEN: RONALD JAMES BUTCHER
Plaintiff
AND
DELYS JOAN CRAIG as beneficiary of the estate of ELSJA HENRIETTA CHARLOTTE BUTCHER
First Defendant
DELYS JOAN CRAIG
Second Defendant
TRIGG ALEXANDER CRAIG as beneficiary of the estate of ELSJA HENRIETTA CHARLOTTE BUTCHER
Third Defendant
ELSJA ELIZABETH CRAIG as beneficiary of the estate of ELSJA HENRIETTA CHARLOTTE BUTCHER
Fourth Defendant
MANSON BASIL CRAIG as beneficiary of the estate of ELSJA HENRIETTA CHARLOTTE BUTCHER
Fifth Defendant

Catchwords:

Inheritance (Family and Dependants Provision) Act 1972 (WA) - Claim by adult son - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr L A Tsaknis
First Defendant              :     No appearance
Second Defendant         :     Mr A Metaxas
Third Defendant            :     Mr A Metaxas
Fourth Defendant           :     Mr A Metaxas
Fifth Defendant              :     Mr A Metaxas

Solicitors:

Plaintiff:     Minter Ellison
First Defendant              :     No appearance
Second Defendant         :     Metaxas & Hager
Third Defendant            :     Metaxas & Hager
Fourth Defendant           :     Metaxas & Hager
Fifth Defendant              :     Metaxas & Hager

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

Christie v Manera [2006] WASC 287
Curran v Duncan [2006] WASC 9
Goodman v Windeyer (1980) 144 CLR 490
Hall v Wilson [2005] WASC 207
Kitson v Franks [2001] WASCA 134
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Martin v Public Trustee [2005] NSWSC 177
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Vigolo v Wanda Mary Bostin and Leopoldo Vigolo (as Executors of the Will of Lino Vigolo (Dec)) [2001] WASC 335
Walton v Lehmann [2005] NSWSC 251

MASTER SANDERSON: This is the plaintiff's application brought under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). The plaintiff is the son of the late Elsja Henrietta Charlotte Butcher (the deceased). The deceased died on 15 December 2005 aged 93. Her last will was made on 6 May 2003. The second defendant is the daughter of the deceased. The third, fourth and fifth defendants are all children of the second defendant.
By her will the deceased left a net estate of approximately $1,261,818.32. The principal asset of her estate was, and is, a house at Busselton. According to the statement of assets and liabilities sworn 4 October 2006, at the date of the deceased's death this house was valued at $1.2 million. All parties accepted that, for the purposes of this application, the value put on the house in the statement of assets and liabilities was to be taken as the value of the house as at the date of death of the deceased.
The statement of assets and liabilities showed that in addition to the house the deceased had moveable property totalling $61,818.32.…

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 Butcher v Craig

Details

AGLC: Butcher v Craig [2009] WASC 164
Case: [2009] WASC 164
Decision Date: 15 JUNE 2009

CaseChat Overview and Summary

In the case of Butcher v Craig, the plaintiff, a son, brought an action against the executor of his mother's estate, seeking a share of the estate under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The son claimed that he was a dependant of the deceased mother, relying on the provisions of the Act to assert his entitlement to an inheritance. The court was tasked with determining whether the son met the criteria for being considered a dependant under the Act.

The central legal issue was whether the son satisfied the definition of a dependant under the Act, which includes considerations of financial dependency, the nature of the relationship, and the circumstances of the deceased. The court had to assess the factual circumstances surrounding the son's dependency on his mother, including any financial support received and the degree of emotional and practical reliance on her. The son argued that despite his adult age, he was still reliant on his mother for financial and emotional support, thus qualifying him as a dependant.

The court examined the evidence presented, focusing on the son's financial situation, his relationship with his mother, and the extent to which he depended on her. It was noted that while the son was an adult, the court must consider the unique facts of the case. The court concluded that the son did indeed meet the criteria for a dependant under the Act, primarily due to his ongoing financial and emotional reliance on his mother. Consequently, the son was entitled to a share of the estate.

The court ordered that the executor of the estate must account for and distribute a portion of the estate to the son, recognising his status as a dependant under the Act. The exact amount was to be determined based on the court's further findings, ensuring that the son's entitlement was fairly assessed according to the statutory provisions.

Orders