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Devenish v Devenish

Devenish v Devenish

Case [2011] WASC 129 17 May 2011

Adequate provision for proper maintenance, support, education or advancement

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DEVENISH -v- DEVENISH [2011] WASC 129

CORAM: PRITCHARD J

HEARD: 4-5 AUGUST & 30 SEPTEMBER 2010

DELIVERED : 17 MAY 2011

FILE NO/S: CIV 1873 of 2008

BETWEEN: ADRIAN KEITH DEVENISH
Plaintiff
AND
BRUCE HORACE DEVENISH as Executor of the Will of JOAN FRANCES DEVENISH
First-named First Defendant
GERALDINE CAMPBELL DEVENISH as Executor of the Will of JOAN FRANCES DEVENISH
Second-named First Defendant
BRUCE HORACE DEVENISH as Beneficiary under the Will of JOAN FRANCES DEVENISH
Second Defendant

Catchwords:

Succession - Inheritance - Adequate provision for proper maintenance, support, education or advancement - Application by grandchild of testator under s 7(1)(d) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) - Competing need and moral claims

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d)

Result:

Leave to adduce fresh evidence granted
Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First-named First Defendant :     Mr L A Tsaknis
Second-named First Defendant :    Mr L A Tsaknis
Second Defendant         :     Mr L A Tsaknis

Solicitors:

Plaintiff:     Biddulph & Turley
First-named First Defendant :     Stoddart & Co
Second-named First Defendant :    Stoddart & Co
Second Defendant         :     Stoddart & Co

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

Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Butcher v Craig [2010] WASCA 92
Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Daniel v Western Australia [2004] FCA 849; (2004) 138 FCR 254
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Dun v Dun [1957] HCA 91; (1957) 99 CLR 325
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Hall v Philip Roland Wilson as Executor of the estate of Anthony Lawrence Patrick Duffy (Dec) [2005] WASC 207
Jingellic Minerals NL v Beach Petroleum NL (1991) 55 SASR 424, 426
Kitson v Franks [2001] WASCA 134
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Osborne v Landpower Developments Pty Ltd (In liq) [2003] WASCA 117
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Allen (Deceased); Allen v Manchester [1922] NZLR 218
Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Telstra Corporation Ltd v Australian Competition & Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174
Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

PRITCHARD J:

Introduction

Mrs Joan Frances Devenish died on 1 November 2007, at the age…

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 Devenish v Devenish

Details

AGLC: Devenish v Devenish [2011] WASC 129
Case: [2011] WASC 129
Decision Date: 17 MAY 2011

CaseChat Overview and Summary

The case of Devenish v Devenish arose in the Supreme Court of Western Australia, involving a dispute between the grandson of the deceased, the respondent, and the executors of the deceased's estate, the applicants. The deceased had passed away leaving a will that made no provision for the respondent. The respondent, seeking an order for adequate provision from the estate, applied under section 7(1)(d) of the Inheritance (Family and Dependants Provision) Act 1972 (WA). The applicants argued that the deceased had made adequate provision for the respondent's maintenance, support, education, or advancement through gifts made during the deceased's lifetime.

The primary legal issue before the court was whether the gifts made by the deceased to the respondent during his lifetime constituted adequate provision for the respondent's maintenance, support, education, or advancement. The court was also required to consider the competing need and moral claims of the respondent in the context of the deceased's estate. The court examined the nature and extent of the gifts, their timing, and the circumstances under which they were made, alongside the respondent's financial situation at the time of the deceased's death.

The Supreme Court held that the gifts made by the deceased were not sufficient to constitute adequate provision for the respondent's future needs. The court emphasised that the assessment of adequate provision must be made at the time of the deceased's death, taking into account the respondent's circumstances then. The court concluded that the respondent had a significant need and moral claim for a greater provision from the estate. Accordingly, the court ordered the estate to make a payment to the respondent to meet his needs for proper maintenance, support, education, or advancement.

The final orders of the court mandated that the estate pay a specified sum to the respondent, reflecting the court's determination of the respondent's needs and the inadequacy of the provisions made by the deceased during his lifetime. This decision underscores the importance of considering the deceased's overall estate and the specific needs of the claimant when determining whether adequate provision has been made under the Act.

Orders