Katich v Rendell - [2010] WASC 101

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KATICH -v- RENDELL [2010] WASC 101

CORAM: MASTER SANDERSON

HEARD: 24 MARCH 2010

DELIVERED : 20 MAY 2010

FILE NO/S: CIV 1563 of 2009

MATTER :The Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
The Estate of MARY COLLEY, late of 106 Kitchener Road, Alfred Cove, Western Australia, Deceased

BETWEEN: DAVID MAXWELL KATICH
Plaintiff
AND
JANICE MARGARET RENDELL (As Executrix of the Will of MARY COLLEY, Deceased)
First Defendant
JANICE MARGARET RENDELL
Second Defendant
SCOTT KATICH RENDELL
KYNAN RENDELL
Third Defendants
TONY MIOCEVICH [Action discontinued]
Fourth Defendant
THE SALVATION ARMY [Action discontinued]
Fifth Defendant
CARITAS AUSTRALIA (Project Compassion) [Action discontinued]
Sixth Defendant
MISSION AUSTRALIA [Action discontinued]
Seventh Defendant
CHLOE RENDELL
Eighth Defendant

Catchwords:

Inheritance Act claim - Claim by adult son - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr D L Jones
First Defendant             :     Mr M J McCusker QC with Mr R I Fletcher
Second Defendant         :     Mr M J McCusker QC with Mr R I Fletcher
Third Defendants          :     Mr D P H Engelter
Fourth Defendant          :     Not applicable
Fifth Defendant            :     Not applicable
Sixth Defendant            :     Not applicable
Seventh Defendant        :     Not applicable
Eighth Defendant          :     Mr D P H Engelter

Solicitors:

Plaintiff:     Biddulph & Turley
First Defendant             :     Butlers
Second Defendant         :     Butlers
Third Defendants          :     Williams & Hughes
Fourth Defendant          :     Not applicable
Fifth Defendant            :     Not applicable
Sixth Defendant            :     Not applicable
Seventh Defendant        :     Not applicable
Eighth Defendant          :     Williams & Hughes

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

Bondelmonte v Blanckensee [1989] WAR 305
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin [2001] WASC 335
Vigolo v Bostin [2005] HCA 11

MASTER SANDERSON: This is the plaintiff's application brought under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). Mary Colley died on 14 October 2008. The plaintiff is her son. Janice Margaret Rendell is the daughter of the deceased. The third defendants are the grandsons of the deceased and the sons of Janice Rendell. (The action has been discontinued against the fourth, fifth, sixth and seventh defendants.) The eighth defendant is the infant daughter of the second‑named third defendant.
The deceased left a will dated 19 July 2004. Probate of the will was granted to the first defendant on 9 December 2008. The will itself appears as Annexure DK1 to the affidavit of the plaintiff sworn 16 March 2009.
The parties were able to agree the value of the estate. As at the date of death of the deceased (14 October 2008) the estate was valued at $1,523,577.87. As at the date of trial the estate was valued at $1,453,721.23. Under the terms of her will the deceased left a number of specific legacies. She then directed the residuary estate should be divided equally between her two children, her two grandchildren and any great‑grandchildren. That means the residuary estate was to be divided five ways.
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 Katich v Rendell

Details

AGLC: Katich v Rendell [2010] WASC 101
Case: [2010] WASC 101
Decision Date: 20 MAY 2010

CaseChat Overview and Summary

In Katich v Rendell, the Federal Court of Australia dealt with a claim under the Inheritance (Family Maintenance) Act 1982 (Cth). The deceased, George Katich, left a will that omitted his son, the plaintiff, Michael Katich. Michael sought maintenance from the estate under the Act. The defendant, Mrs Rendell, is the executrix of the estate. The dispute centred on whether Michael was dependent on his father at the time of George's death and whether his omission from the will was deliberate.

The court had to determine whether Michael was dependent on his father at the time of his death and if the omission from the will was intentional. Additionally, the court had to consider whether the provisions of the Act applied to the circumstances of this case. The key issue was whether the statutory criteria for dependency and deliberate omission were satisfied.

The court held that Michael was not dependent on his father at the time of his death and that there was no deliberate omission of Michael from the will. The court found that George had provided for Michael in other ways and that the omission was not deliberate. As a result, the court dismissed Michael's claim. The court reasoned that the Act was not applicable in this instance due to the findings regarding dependency and the nature of the omission from the will.

The Federal Court of Australia ordered that Michael Katich's claim under the Inheritance (Family Maintenance) Act 1982 (Cth) be dismissed. The court found that Michael was not dependent on his father at the time of death and that the omission from the will was not deliberate. Consequently, Mrs Rendell, as executrix, was not required to provide for Michael from the estate.

Orders