Butler v Britt Helena Butler as executrix of the estate of Colin Armitage Butler
[2025] WASC 181
•16 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BUTLER -v- BRITT HELENA BUTLER as executrix of the estate of COLIN ARMITAGE BUTLER [2025] WASC 181
CORAM: WHITBY J
HEARD: ON THE PAPERS
DELIVERED : 16 MAY 2025
FILE NO/S: CIV 1319 of 2025
BETWEEN: BRITT HELENA BUTLER
Plaintiff
AND
BRITT HELENA BUTLER as executrix of the estate of COLIN ARMITAGE BUTLER
First Defendant
DAMIEN ARMITAGE BUTLER
Second Defendant
SHARR SERVINA BUTLER
Third Defendant
JAYDEN ARMITAGE BUTLER
Fourth Defendant
Catchwords:
Family provisions and maintenance – Application by wife – Whether deceased made adequate provision for the proper maintenance of his wife by his will – Application under s 6(1) Family Provision Act 1972 (WA) – effect on the deceased’s estate of a mutual wills agreement – In-principle agreement reached between parties
Legislation:
Family Provision Act 1972 (WA)
Property Law Act 1969 (WA)
Result:
Orders made for further provision from the estate of the deceased to the plaintiff in terms of memorandum of consent orders filed on 2 April 2025
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Haynes Leeuwin |
| First Defendant | : | In Person |
| Second Defendant | : | David Stone Legal |
| Third Defendant | : | David Stone Legal |
| Fourth Defendant | : | David Stone Legal |
Case(s) referred to in decision(s):
Alexander v Jansson [2010] NSWCA 176
Barns v Barns [2003] HCA 9
Butler v Butler [2025] WASC 79
Collett and Anor v Knox and Anor [2010] QSC 132
Dean v Collins [No 2] [2015] WASCA 151
Gray v Gray [2023] WASC 70
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Luciano v Rosenblum (1985) 2 NSWLR 65
Paterson v Bunter [2000] WASC 83
Poole v Barrow [2014] VSC 576
Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148
WHITBY J:
Given the parties share the same surname, I will refer to them in these reasons by their first names, with no disrespect intended.
These proceedings were preceded by an application by Britt for leave pursuant to s 7 of the Family Provision Act 1972 (WA) (Act) to commence proceedings out time. On 13 May 2025, I made an order that Britt have leave pursuant to s 7(2) of the Act to make an application for provision out of the estate of the late Colin Armitage Butler (Deceased) pursuant to s 6(1) of the Act and within 14 days of the date of that order.[1]
[1] Butler v Butler [2025] WASC 79 (Reasons for Decision).
The factual background to proceedings is set out in the Reasons for Decision. I refer to them without repeating them. These reasons adopt the terms used in the Reasons for Decision.
On 26 March 2025, the plaintiff in this matter, Britt, filed an originating summons seeking further provision of the Deceased's estate under s 6 of the Act (the Application).
Britt relies on her affidavit sworn on 24 March 2025 (Britt Affidavit) in support of her application for further provision from the estate of the Deceased.
The parties have agreed, by an executed deed of settlement, [2] that further provision be made for Britt from the Deceased's estate in the terms of a memorandum of consent orders filed on 2 April 2025 (Consent Orders).[3] The Consent Orders are in the following terms:
[2] Britt Affidavit [88]; Annexure BHB-10.
[3] Memorandum of consent orders filed 2 April 2025, orders 4 - 8. I made orders 1 - 3 on 7 April 2025, which were programming orders for the application to be heard on the papers.
…
4.Pursuant to section 6 of the Family Provision Act 1972 (WA) (Act) provision be made for the Plaintiff's proper, maintenance, support and advancement in life of the Plaintiff from the estate of the late Colin Armitage Butler by way of alteration to the distribution of the estate such that it be distributed as if the Will of the late Colin Armitage Butler dated 12 January 2015 (Will) had been amended by codicil (in accordance with section 10 of the Act) to:
(a)delete clauses 5.2, 5.3 and 5.4 of the Will;
(b)insert a new clause 5.2 reading:
(i)I give to my son, Damien Armitage Butler ("Damien"), and my grandchildren, Sharr Servina Butler ("Sharr") and Jayden Armitage Butler ("Jayden"), in equal shares:
(ii)my BSA 3-wheeler motorcycle (unregistered);
(iii)all my sandblasting equipment owned by me at the date of my death; and
the sum of $58,500.
(c)insert a new clause 5A reading:
(i)I give my land at 60 Hunton Road, Kalgan, Western Australia described as Lot 17 on Plan 161291, Title Reference Volume 1188 Folio 100 (Land) as to:
(ii)a 55% share to my son, Damian, and my grandchildren, Sharr and Jayden, as tenants in common in equal shares; and
(iii)a 45% share to my wife, Britt, absolutely.
(d)insert a new clause 5B reading:
(i)I grant to my wife, Britt, an exclusive right to occupy and reside at the Land and all improvements on the Land with uninterrupted quiet enjoyment and possession for as long as Britt occupies the Land as her home at no cost to her other than the requirement that Britt must:
(A)pay all rates and taxes levied against the Land from time to time;
(B)pay all outgoings associated with the Plaintiff's residence at the Land;
(C)keep the Land and all improvements insured for market value at her cost;
(D)keep and maintain the Land and all improvements on it at her own expense;
(ii)None of Damien, Sharr or Jayden shall visit the property by themselves or by their agents at anytime, without express written invitation from Britt.
(iii)Britt is entitled to invite any person onto the Land and allow that person to temporarily reside at the Land as Britt's guest, provided that Britt:
(A)is liable for the costs of damage or destruction to the Land or its improvements caused by her or her invitee; and
(B)does not let or sub-let the Land or any part of it to any person or invitee.
(iv)If Britt:
(A)elects to sell the Land during her lifetime; or
(B)ceases to reside at the Land as her home; or
(C)fails to pay any rates and taxes levied against the Land,
(v)the Land is to be sold with vacant possession and:
(A)Britt and my son, Damien, are to appoint a real estate agent experienced in the sale of residential properties in Albany to sell the Land. In default of an agreement as to the real estate agent, they are to appoint one nominated by the President of the Real Estate Institute of Western Australia (Inc); and
(B)the real estate agent is authorised to sell the Land by whichever of the methods of private treaty, auction or tender that the real estate agent, acting reasonably advises Britt and Damian, will achieve the price reasonably obtainable and on such other terms as the real estate agent recommends;
(C)the Land be sold subject to the 2022 Law Society of Western Australia and Real Estate Institute of Western Australia Joint Form of General Conditions for the Sale of Land;
(D)if Britt and Damien cannot agree to the sale price for the Land, Britt and Damien agree to accept the real estate agent's advice as to the asking price, terms of sale and acceptance (or otherwise) of any offer to purchase the Land;
(E)Each of Britt, Damien, Sharr and Jayden are to pay to any real estate agent 25% of the estimated marketing costs requested by the real estate agent within seven (7) days of request by the real estate;
(F)Britt and Damien are to co-operate fully with the real estate agent in the sale process, and Britt is to make the Land available for inspection on not less than two (2) business days' notice;
(G)each of Britt and Damien must do all that is necessary on that party's behalf to effect the sale of the Land, including, but not limited to, signing all necessary documents for that purpose, including the Landgate transfer of land documents; and
(H)the net proceeds of sale of the Land after the payment of all selling costs will be paid:
(I)Britt as to 45%; and
(II)to Damien, Sharr and Jayden as to 55% in equal shares.
5.A certified copy of these orders be made upon the probate of the Will and that the First Defendant within 7 days from the date of these orders do produce the grant of probate to the Court for that purpose.
6.There be liberty to apply.
7.The proceedings are otherwise dismissed.
8.There be no order as to costs.
Legal principles
Although the MWA operates to hold Suzanne's assets on constructive trust for Damien, Sharr and Jayden, its existence does not preclude Britt from bringing a claim for further provision under the Act.[4]
[4] Barns v Barns [2003] HCA 9; (2003) 216 CLR 169, 85.
The court cannot make the Consent Orders unless it is satisfied that the jurisdiction conferred by s 6(1) of the Act is enlivened.[5]
[5] Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148 [7] (Le Miere J).
The principles outlining the operation of s 6(1) of the Act are uncontentious and have been considered by the Court of Appeal on numerous occasions. Recently, the principles were outlined by the Court of Appeal in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod.[6] I adopt those principles without repeating them.
[6] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [43] ‑ [50].
In summary, the court must engage in the following two‑stage process when considering a claim under s 6(1) of the Act:
(1)the first stage is to determine whether the claimant was left without adequate provision for his or her proper maintenance, support, education or advancement in life - this is referred to as the jurisdictional question; and
(2)the second stage only arises if the first stage is satisfied and involves the exercise of the court's discretion to make an order for such provision as the court thinks fit out of the deceased's estate for the proper maintenance, support, education or advancement in life of the claimant.
The first stage is determined at the date of death of the deceased and the second stage is determined at the date of the order made by the court.
In undertaking the first stage assessment, the court has regard to, amongst other things:
(1)the claimant's financial position;
(2)the size and nature of the estate;
(3)the totality of the relationship between the claimant and the deceased; and
(4)the relationship between the deceased and other persons who have legitimate claims on his bounty.[7]
[7] Dean v Collins[No 2] [2015] WASCA 151 [24].
In undertaking the second stage assessment, in relation to claims by a spouse (including a de facto spouse) there is a general rule (which is flexible depending upon the circumstances, nature and length of the relationship) that a spouse is entitled to have a home, income to enable them to live in the style to which they are accustomed, and to provide them with a fund to meet unforeseen contingencies.[8]
[8] Luciano v Rosenblum (1985) 2 NSWLR 65.
Disposition
Britt was born on 1 March 1959 and is currently 66 years of age. Britt was married to the Deceased from 2013 until his passing in 2023.
Prior to his relationship with Britt, the Deceased was married to Suzanne. Suzanne and the Deceased had one child, Damien, and two grandchildren, Sharr and Jayden.
The Deceased had no other children during his lifetime. Damian, Sharr and Jayden have not made any competing claims for further provision from the Deceased's estate pursuant to the Act. There are no other people with a statutory right to make a claim against the Deceased's estate pursuant to the Act.
The Deceased has sought to leave Britt the entire residue of his estate by his 2015 Will. However, the MWA precludes the Deceased from doing so to the extent that his estate is comprised of assets the subject of Suzanne's will.
Britt is currently unemployed and receiving Centrelink Newstart payments of $833.20 a fortnight. In 2012, the Deceased and Britt started a sales business called 'HopsWest' selling hops rhizomes (root cuttings from mature hop plants).
In 2011, Britt sold a property she owned in New South Wales and received net proceeds of $337,802. In 2012, Britt and the Deceased agreed to use a joint bank account. Britt converted her personal bank account into a joint bank account with the Deceased. Over the period 2012 to 2014, Britt transferred the funds from the sale of her NSW property (which funds were held in various term deposits) into their joint bank account. From January 2012 until the Deceased's death in April 2023, Britt and the Deceased pooled their funds in joint bank account.
The joint account was used for the daily living expenses of the Deceased and Britt, funding their Hopswest business, purchasing motorbikes and funding renovations of the Deceased's properties at 60 Hunton Road and 70 Hunton Road, Kalgan. Upon the sale of 70 Hunton Road, a large portion of the sale price was deposited into the joint account. Funds received through the HopWest business and the sale of motorbikes were also deposited into the joint bank account.
In 2014, the Deceased was diagnosed with a terminal lung condition and Britt had to cease her work as a nursing home carer to care for the Deceased.
At the time of the Deceased's death, Britt and Deceased lived together at 60 Hunton Road, Kalgan, Western Australia.
At the date of the Deceased's death, the pooled monthly income of the Deceased and Britt was $2,580. Their household monthly expenses were $2,337.65, leaving a small monthly surplus of $242.35.
As at the date of Britt's Affidavit, she was receiving a fortnightly net income of $833.20 from the Centrelink Newstart payment. Britt's taxable income for the 2023/2024 financial year was $21,663.20. Her savings were $271.99 and she held $6,000 worth of shares. Britt had $51,282 in superannuation. Her liabilities were $7,800. Britt has a monthly financial deficit of $1,983.74.
Having regard to the first stage of the process, I am satisfied that the 2015 Will (given that the effect of the MWA and the Deceased's 2010 Will is that 60 Hunton Road, Kalgan will pass to Damien, Sharr and Jayden) does not make adequate provision for Britt as at the date of the Deceased's death having regard to:
(1)the age and needs of Britt;
(2)the modest size of the Deceased's estate;
(3)the nature and length of the relationship between Britt and the Deceased; and
(4)the nature of the Damien, Sharr and Jayden's claims on the Deceased's bounty.
I now turn to the second stage of the process.
Britt had a total knee replacement operation on one knee in 2016 and the other knee in 2018. Britt has rotator cuff muscle damage, bursitis in her left shoulder and rheumatoid arthritis. She has carpal tunnel syndrome in her hands. Britt's health issues significantly impact her ability to work.
Britt only has a small amount of savings. In my view, the plaintiff does not have an adequate buffer for contingencies as she ages. The plaintiff is now 66 years old and her remaining working life is diminishing. Moreover, the disposition of the Deceased's estate as it stands does not provide her with a home to live in. Britt is currently relying on friends for financial support.
The Deceased's assets at the time of his death are valued at $959,970.51 – the property at 60 Kalgan Road comprises $650,000 of the total estate. For the reasons detailed in the Reasons for Decision, that property passes to Damien, Sharr and Jayden pursuant to the MWA and the Deceased's 2010 Will. This means that Britt is left without a place to live.
The Consent Orders provide Britt with a 45% share of 60 Kalgan Road and permit Britt her to live at 60 Kalgan Road for as long as she elects to do so and provide for the terms upon which she may do so.
The court has a broad discretion under the Act which permits it to make provision for Britt in terms of the Consent Orders, including a right of residence.[9]
[9] See Paterson v Bunter [2000] WASC 83; Poole v Barrow [2014] VSC 576; Alexander v Jansson [2010] NSWCA 176; Collett and Anor v Knox and Anor [2010] QSC 132.
I am satisfied that, in the exercise of my discretion, it is proper to make orders in the terms sought by the parties so as to make adequate provision for Britt's proper maintenance, support, education or advancement in life under s 6 of the Act. I am of the view that this provision will provide the plaintiff with a degree of financial security and will permit her to continue to live the lifestyle she and the Deceased had shared together during their marriage.
I am also satisfied that it is appropriate to make the orders sought in the Consent Orders referrable to the sale of 60 Kalgan Road on the basis that they are orders framed in accordance with those ordinarily made pursuant to s 126 of the Property Law Act 1969 (WA).[10]
[10] See for example Gray v Gray [2023] WASC 70.
Conclusion and orders
For the reasons above, I make orders in terms of the memorandum of consent orders dated 2 April 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
16 MAY 2025
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