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Chappell v Hewson

Chappell v Hewson

Case [2013] WASCA 15 4 February 2013

Adequate Provision

Discretionary Judgment

Interest on Provision

Assessment of Evidence

Succession Law

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CHAPPELL -v- ALEXANDER ROBERT HEWSON by his next friend CHRISTOPHER ROBERT HEWSON [2013] WASCA 15

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 15
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:67/2012	Heard:	14 NOVEMBER 2012
Coram:	NEWNES JA MAZZA JA EDELMAN J	Delivered:	4/02/13
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal allowed Crossappeal allowed Order for provision from the estate varied
Category:	B
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Parties:	PETER STEPHEN CHAPPELL JENNIFER KAYE FAIRCLOUGH ALEXANDER ROBERT HEWSON by his next friend CHRISTOPHER ROBERT HEWSON
Catchwords:	Succession law Application under Inheritance (Family and Dependants Provision) Act 1972 (WA) Provision made for respondent from estate Sufficiency of evidence for assessment of amount of provision Time from when interest is payable on provision made under Inheritance (Family and Dependants Provision) Act 1972 (WA) Whether 'executor's year' principle applies to applications under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA)
Legislation:	Administration Act 1903 (WA), s 143A Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1)
Case References:	Bondelmonte v Blanckensee [1989] WAR 305 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Devenish v Devenish [2011] WASC 129 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235 Dun v Dun [1957] HCA 91; (1957) 99 CLR 325 Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Hewson v Chappell [2012] WASC 86 Kitson v Franks [2010] WASCA 134 Lawrence v Lawrence [2004] WASC 90 Murdocca v Murdocca (No 2) [2002] NSWSC 505 Pacella v Sherborne (No 2) [2010] WASC 186 Re Raine [1929] 1 Ch 716 Re Richards (1869) LR 8 Eq 119 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHAPPELL -v- ALEXANDER ROBERT HEWSON by his next friend CHRISTOPHER ROBERT HEWSON [2013] WASCA 15 CORAM : NEWNES JA

MAZZA JA

EDELMAN J

HEARD : 14 NOVEMBER 2012 DELIVERED : 4 FEBRUARY 2013 FILE NO/S : CACV 67 of 2012 BETWEEN : PETER STEPHEN CHAPPELL

First Appellant

JENNIFER KAYE FAIRCLOUGH

Second Appellant

AND

ALEXANDER ROBERT HEWSON by his next friend CHRISTOPHER ROBERT HEWSON

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : HEWSON -v- CHAPPELL [2012] WASC 86

File No : CIV 1242 of 2010

(Page 2)

Catchwords:

Succession law - Application under Inheritance (Family and Dependants Provision) Act 1972 (WA) - Provision made for respondent from estate - Sufficiency of evidence for assessment of amount of provision - Time from when interest is payable on provision made under Inheritance (Family and Dependants Provision) Act 1972 (WA) - Whether 'executor's year' principle applies to applications under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972

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 Chappell v Hewson

Details

AGLC: Chappell v Hewson [2013] WASCA 15
Case: [2013] WASCA 15
Decision Date

CaseChat Overview and Summary

In this case, the Court of Appeal was asked to decide whether the discretion of the learned Master, who was sitting as a Master of the Supreme Court, miscarried in the provision of $1 million that his Honour made for Alexander from the estate of his grandfather, Ronald Chappell, for Alexander's proper maintenance, support, education or advancement in life. Alexander, who was 9 years old when his grandfather died, claimed that the Will and Codicil of his deceased grandfather did not make adequate provision for Alexander's proper maintenance, support, education or advancement in life. The appeal must be allowed because in each of the first three categories the Master's conclusions cannot be supported by the evidence before him. In the conclusion to these reasons, the Court explains the difficult situation created by the lack of evidence presented by the parties. The Court also considers the issue in the cross-appeal, which concerns the date from which interest should run on the provision made for Alexander. The appropriate time from which interest should run is from the date of the Master's order (as varied by these reasons). In the circumstances of this case, this conclusion is not affected by the principles of construction of testamentary instruments or the 'executor's year' principle which sometimes applies to the exercise of discretion in relation to an award of interest.

Orders