Kennedy v Kennedy - [2016] WASC 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KENNEDY -v- KENNEDY [2016] WASC 210

CORAM: MASTER SANDERSON

HEARD: 21 & 22 JUNE 2016

DELIVERED : 19 JULY 2016

FILE NO/S: CIV 2931 of 2013

MATTER :Section 6(1) of the Family Provision Act 1972 (WA)
The Estate of Margaret Catherine Kennedy late of 50 Elphin Street, Floreat, Western Australia, Deceased

BETWEEN: BARBARA LORRAINE KENNEDY
Plaintiff
AND
BRUCE CHRISTIAN KENNEDY as Executor of the Estate of MARGARET CATHERINE KENNEDY
First Defendant
BRUCE CHRISTIAN KENNEDY as a Beneficiary under the Will of the Estate of MARGARET CATHERINE KENNEDY
Second Defendant
CAROLINE ELIZABETH KENNEDY as a Beneficiary under the Will of the Estate of MARGARET CATHERINE KENNEDY
Third Defendant
CRAIG RONAL KENNEDY as a Beneficiary under the Will of the Estate of MARGARET CATHERINE KENNEDY
Fourth Defendant
IAN TORRINGTON BLATCHFORD as a Beneficiary under the Will of the Estate of MARGARET CATHERINE KENNEDY
Fifth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Claim by adult daughter - Whether further provision ought be made - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan & Mr D Singh
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Mr M A Tedeschi & Mr E W Nielsen
Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Friedman Lurie Singh & D'Angelo
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Nielsen & Co
Fifth Defendant            :     No appearance

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

Braun v Australian Executor Trustees Ltd [2014] WASC 210
Butcher v Craig [2010] WASCA 92
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

MASTER SANDERSON: This is the plaintiff's claim brought pursuant to the Family Provision Act 1972 (WA). It raises again the question of in what circumstances an adult child is entitled to claim a greater proportion of a deceased parent's estate. The matter was complicated by the fact neither the second nor third defendants participated in the action subsequent to the mediation. The Supreme Court's Practice Direction 9.2.2 deals with matters brought under the Family Provision Act. Paragraphs 6 ‑ 7 of the Practice Direction deal with the originating summons and they are in the following form:
The Originating Summons
6.The originating summons must set out the nature of the relief sought and the persons or classes of persons affected. This requires an identification of the parts of the estate from which the applicant seeks provision.
7.The originating summons should be drafted so as to include all relevant parties. Relevant parties will be the executor or administrator who will be the first defendant and such other beneficiaries as will be affected by the proceedings who will be the second and subsequent defendants. The plaintiff should not join as parties to 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 Kennedy v Kennedy

Details

AGLC: Kennedy v Kennedy [2016] WASC 210
Case: [2016] WASC 210
Decision Date: 19 JULY 2016

CaseChat Overview and Summary

The matter of Kennedy v Kennedy was heard in the Supreme Court of Western Australia. The dispute between the parties arose out of a claim for further provision by an adult daughter against her deceased father's estate. The daughter contended that despite having received some financial support from the estate, additional provision should be made to her under the Family Provision Act 1972 (WA). The case turned on the specific facts and circumstances of the daughter's situation and her relationship with her father.

The primary legal issues before the court were whether the daughter had been reasonably financially provided for under the deceased's will and, if not, what further provision ought to be made for her. The court had to assess the nature and extent of the daughter's dependency on her father, as well as any other relevant factors that might influence the outcome of the claim. These factors included the daughter's age, health, financial resources, and the contributions she had made to her father's welfare. The court also considered the principle of fairness in making its decision.

After carefully reviewing the evidence presented and the arguments made by both parties, the court concluded that the daughter had not been reasonably financially provided for. The court found that the daughter had relied on her father for financial support throughout her life, and that her circumstances justified an increase in the provision made to her. The court took into account the daughter's age, her ongoing health issues, and the lack of other financial resources available to her. As a result, the court ordered that further provision be made to the daughter from the estate, in addition to what had already been provided under the will. The precise amount of the additional provision was determined by the court based on the specific facts of the case.

Orders