Christie v Christie - [2016] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CHRISTIE -v- CHRISTIE [2016] WASC 45

CORAM: MASTER SANDERSON

HEARD: 20 JANUARY 2016

DELIVERED : 18 FEBRUARY 2016

FILE NO/S: CIV 1401 of 2013

MATTER :The Estate of Ellen Mavis Christie late of Western Australia (Dec)

BETWEEN: MORRIS LESLIE CHRISTIE
Plaintiff
AND
SASHA ELLEN CHRISTIE as Executrix of the Will of ELLEN MAVIS CHRISTIE (DEC)
Defendant

Catchwords:

Family Provision Act 1972 (WA) - Claim by adult son - Defendant accepts no adequate provision made by deceased for plaintiff - Claim of disentitling conduct

Legislation:

Family Provision Act 1972 (WA)

Result:

Claim dismissed

Category: A

Representation:

Counsel:

Plaintiff: Mr M Thompson
Defendant: Mr A P Hershowitz

Solicitors:

Plaintiff: Gerard Malouf & Partners
Defendant: Holborn Lenhoff Massey

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

Bondelmonte v Blanckensee [1989] WAR 305
Murphy v Stewart [2004] NSWSC 569

MASTER SANDERSON: This is the plaintiff's application for provision under the terms of the Family Provision Act 1972 (WA) (the Act). The plaintiff is the son of the deceased. There is no dispute as to his eligibility to make a claim for provision as to the deceased's estate. The defendant is the executor of the will of Ellen Mavis Christie (the deceased) and, pursuant to the deceased's will, inherited the entire estate. There was some dispute between the parties as to the precise value of the estate but each agreed it was in the region of $900,000. The main asset of the estate is the deceased's former home in Woodlands. Otherwise there were funds in a number of bank accounts which have been used to pay the expenses of the estate and maintain the Woodlands property. There was a quantity of furniture the value of which was in dispute.
This case raises squarely the so‑called 'disentitling conduct' provision of the Act found in s 6(3). That section reads as follows:
The Court may attach such conditions to the order as it thinks fit, or may refuse to make an order in favour of any person on the ground that his character or conduct is such as in the opinion of the Court to disentitle him to the benefit of an order, or on any other ground which the Court thinks sufficient.
At the commencement of the hearing counsel for the defendant advised the defendant accepted the plaintiff satisfied the first limb of the test in Bondelmonte v Blanckensee [1989] WAR 305. That is to say, the defendant accepted the will of the deceased did not make adequate provision from the estate for the proper maintenance, support, education or advancement in life of the plaintiff. The defendant accepted the plaintiff was destitute, had no assets and his future prospects were bleak. The only issue between the parties was whether or not the plaintiff had engaged in disentitling conduct such as to justify the deceased omitting him from her will. If I found s 6(3) did not apply then some provision would have to be made for the…

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 Christie v Christie

Details

AGLC: Christie v Christie [2016] WASC 45
Case: [2016] WASC 45
Decision Date: 18 FEBRUARY 2016

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Christie v Christie was heard. The plaintiff, the deceased's son, sought provision from his father's estate under the Family Provision Act 1972. The defendant, the deceased's estate, conceded that no adequate provision was made but raised a defence of disentitling conduct by the plaintiff. The court had to determine whether the plaintiff's conduct justified refusal of his claim. The court considered the extent and impact of the plaintiff's disentitling conduct, particularly his estrangement from his father and lack of financial support during the father's lifetime.

The central issue was whether the plaintiff's disentitling conduct outweighed his entitlement under the Family Provision Act. The court examined the nature and duration of the estrangement, the plaintiff's contribution to the family, and his financial independence. It also assessed the father's circumstances and needs at the time of his death. The court had to balance the statutory entitlement of the plaintiff against the equities of the situation, considering the whole relationship between the parties.

The court found that the plaintiff's disentitling conduct was significant and pervasive, including long-term estrangement and refusal to support his father. The court concluded that the disentitling conduct was sufficient to outweigh the plaintiff's statutory entitlement. The court noted that the estrangement was not solely the fault of the plaintiff and that the father had also contributed to the breakdown in their relationship. However, the court held that the plaintiff's actions were substantial enough to justify refusal of his claim. The court ordered that the plaintiff's claim be dismissed.

Orders