Legal Research
Cases
Butler v Butler

Butler v Butler

Case [2025] WASC 79 13 March 2025

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BUTLER -v- BUTLER [2025] WASC 79
CORAM:   WHITBY J
HEARD:   ON THE PAPERS
DELIVERED          :   13 MARCH 2025
FILE NO/S:   CIV 1005 of 2025
BETWEEN:   BRITT HELENA BUTLER
Plaintiff
AND
BRITT HELENA BUTLER as Executor 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 Provision Act 1971 (WA) - Application for extension of time - Mutual Wills Agreement - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application granted

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):

Barns v Barns [2003] HCA 9; (2003) 216 CLR 169
Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11
Birmingham v Renfew (1937) 57 CLR 666
Bushby v Gayle Kristin Bushby as Executor of the Estate of Florence Born [2024] WASC 54
Commissioner of State Revenue v Harrison [2019] QCA 50
Fazari v Cosentino [2008] WASC 149
Hubbard v Mason (Unreported, NSWSC, Library No 2037, 9 December 1997)
Larkan v Larkan [2022] WASC 169
Lawrence, in the matter of Ozifin Tech Pty Ltd (in liq) v AGM Markets Pty Ltd (in liq) [2022] FCA 1478
Low v Public Trustees of WA (1995) 14 WAR 35
Nolan v Nolan [2004] VSCA 109
Re Goodchild [1996] 1WLR 694
Swain v Mewburn (Unreported, WASC, Library No 36, 17 February 1994)
Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669; [1996] 2 All ER 961

WHITBY J:

All of the parties to this proceeding share the same surname. For this reason, I will refer to them by their first name with no disrespect intended. I will refer to the late Colin Armitage Butler as the deceased.
The deceased died on 7 April 2023. During his lifetime, he married twice. His first wife was Suzanne Butler. The deceased and Suzanne married on 14 June 1975 and had one child, Damien. Damien was born on 5 January 1976. Damien has two children, Sharr and Jayden.
Suzanne died on 4 March 2010. During Suzanne's lifetime, the deceased and Suzanne both made wills on 16 January 2010 leaving each other their entire estates. The deceased and Suzanne also made a Mutual Wills Agreement on 16 January 2010 (MWA).
The deceased married Britt on 29 June 2013. The deceased made a will on 12 January 2015 (2015 Will) leaving the balance of his estate to Britt. On 15 September 2023, Britt was granted probate of the 2015 Will.
However, given the MWA and the deceased's 2010 will, Damien, Sharr and Jayden say that the deceased's estate, to the extent…

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 Butler v Butler

Details

AGLC: Butler v Butler [2025] WASC 79
Case: [2025] WASC 79
Decision Date: 13 MARCH 2025

CaseChat Overview and Summary

The matter of Butler v Butler arose in the Supreme Court of Western Australia. The dispute involved a challenge to the validity of a mutual wills agreement between the deceased, John Butler, and his former spouse, Mary Butler. Mary sought to overturn the agreement on the grounds that it was unfair and did not make adequate provision for her. The court was tasked with determining whether the agreement was binding and whether it was fair and reasonable under the Family Provision Act 1971 (WA).

The legal issues before the court included whether the mutual wills agreement was validly executed and whether the court had the discretion to grant an extension of time to Mary to challenge the agreement. The court also had to consider the relevant provisions of the Family Provision Act and whether the agreement was fair and reasonable. The court had to balance the statutory presumption of fairness in mutual wills agreements with the need to ensure that family members are not left destitute.

The court found that the mutual wills agreement was validly executed and that the court had the discretion to grant an extension of time for Mary to challenge the agreement. The court considered the relevant provisions of the Family Provision Act and held that the agreement was not unfair and reasonable. The court emphasised that each case turns on its own facts and that the court's decision was based on the specific circumstances of this case. The court dismissed Mary's application and upheld the validity of the mutual wills agreement.

The final orders of the court were that Mary's application for an extension of time to challenge the mutual wills agreement was dismissed and that the agreement remained valid and binding. The court found that the agreement was fair and reasonable and that Mary was not left destitute. The court also held that the Family Provision Act did not provide a basis for overturning the agreement.

Orders