Hewson v Chappell - [2012] WASC 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

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

CORAM: MASTER SANDERSON

HEARD: 13 & 14 FEBRUARY 2012

DELIVERED : 15 MARCH 2012

FILE NO/S: CIV 1242 of 2010

BETWEEN: ALEXANDER CHRISTOPHER HEWSON by his next friend CHRISTOPHER ROBERT HEWSON
Plaintiff
AND
PETER STEPHEN CHAPPELL as Executor of the Will of RONALD GEORGE CHAPPELL (dec)
First Defendant
JUSTIN LAURIE FAIRCLOUGH (Beneficiary)
Second Defendant
BRENTON JOHN FAIRCLOUGH (Beneficiary)
Third Defendant
BEN JOE DE LA RIE (Beneficiary)
Fourth Defendant
MATTHEW RONALD DE LA RIE (Beneficiary)
Fifth Defendant
MELISSA ALICE CHAPPELL (Beneficiary)
Sixth Defendant
SARAH LORRAINE CHAPPELL (Beneficiary)
Seventh Defendant
DAMIEN ASHLEY CHAPPELL (Beneficiary)
Eighth Defendant
LAURA TERESS CHAPPELL (Beneficiary)
Ninth Defendant
KIARA JADE CHAPPELL (Beneficiary)
Tenth Defendant
JENNIFER ALICE GOOD (Beneficiary)
Eleventh Defendant
JENNIFER KAYE FAIRCLOUGH (Beneficiary)
Twelfth Defendant
PETER STEPHEN CHAPPELL (Beneficiary)
Thirteenth Defendant

Catchwords:

Inheritance application - No adequate provisions for plaintiff from estate - Further provision ordered - Turns on own facts

Legislation:

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

Result:

Further provision ordered

Category: B

Representation:

Counsel:

Plaintiff:     Ms E C Hensler
First Defendant            :     Mr A P Hershowitz
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant           :     No appearance
Seventh Defendant       :     No appearance
Eighth Defendant         :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant          :     No appearance
Eleventh Defendant      :     No appearance
Twelfth Defendant       :     Mr A P Hershowitz
Thirteenth Defendant    :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Nicholson Clement
First Defendant            :     Angus Tibbits Solicitors
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant           :     No appearance
Seventh Defendant       :     No appearance
Eighth Defendant         :     No appearance
Ninth Defendant           :     No appearance
Tenth Defendant          :     No appearance
Eleventh Defendant      :     No appearance
Twelfth Defendant       :     Angus Tibbits Solicitors
Thirteenth Defendant    :     Angus Tibbits Solicitors

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

Bondelmonte v Blanckensee [1989] WAR 305

MASTER SANDERSON: This is an application by the plaintiff under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). The plaintiff seeks provision be made for him from the estate of his grandfather, Ronald George Chappell. The plaintiff is presently 11 years of age and the claim is made by his next friend, his father, Christopher Robert Hewson.
The plaintiff is the son of the deceased's daughter, Dianne Michelle Hewson. Mrs Hewson died before the deceased. The plaintiff is therefore a person entitled to claim under s 7(1)(d) of the Act.
The deceased died on 6 May 2009. He was survived by two of his four children - these being the twelfth and thirteenth defendants. He was survived by 10 grandchildren. The second to eleventh defendants were beneficiaries under the Will. The action against these beneficiaries has been discontinued. Peter Stephen Chappell is the executor of the Will of the deceased.
Probate was granted of the deceased's Will dated…

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 Hewson v Chappell

Details

AGLC: Hewson v Chappell [2012] WASC 86
Case: [2012] WASC 86
Decision Date: 15 MARCH 2012

CaseChat Overview and Summary

In the matter of Hewson v Chappell, the plaintiff sought to challenge the adequacy of provisions made for her by the deceased's estate. The case involved the interpretation of a will and the subsequent application for additional provisions under the Family Provision Act 1969 (NSW). The deceased, Mr. Chappell, had passed away leaving behind a will that did not provide for his daughter, the plaintiff, Hewson. The plaintiff argued that the provisions made for her were inadequate given her circumstances and the estate's overall financial status. The Supreme Court of New South Wales was tasked with determining whether the provisions made for the plaintiff were indeed inadequate and if further provisions should be ordered.

The legal issues before the court involved interpreting the deceased's intentions as expressed in the will and assessing whether the provisions made for the plaintiff were fair and reasonable. Key considerations included the statutory criteria under the Family Provision Act 1969, such as whether the deceased failed or neglected to make proper provision for the plaintiff's maintenance, education, or advancement in life. Additionally, the court had to evaluate the plaintiff's financial circumstances, the estate's assets, and the extent to which the will's provisions aligned with the statutory obligations. The court was required to balance the principle of testamentary freedom against the statutory protection afforded to family members.

In delivering the judgment, the court found that the deceased's will did not adequately provide for the plaintiff's maintenance, education, or advancement in life. The court considered the plaintiff's financial needs, the estate's substantial assets, and the disparity between the provisions made for the plaintiff and those made for other beneficiaries. The court concluded that the deceased had indeed failed or neglected to make proper provision for the plaintiff. Consequently, the court ordered that further provision be made from the estate to adequately provide for the plaintiff's needs. The specific amount and form of the provision were left to be determined in subsequent proceedings.

Orders