Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod - [2024] WASCA 12

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2024] WASCA 12
CORAM:   QUINLAN CJ
VANDONGEN JA
SEAWARD J

HEARD:   18 SEPTEMBER 2023
DELIVERED          :   8 FEBRUARY 2024
FILE NO/S:   CACV 67 of 2022
BETWEEN:   NICOLINA KEREMESTEVSKI
Appellant
AND
SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD
First Respondent
SHAUN MCLEOD as beneficiary of the estate of MARK ADRIAN MCLEOD
Second Respondent
LEAH MCLEOD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2022] WASC 216
File Number            :   CIV 1625 of 2020

Catchwords:

Wills and estates - Application under s 6(1) of the Family Provision Act 1972 (WA) - Whether parties were in a de facto relationship - Whether parties in 'marriage-like' relationship - Whether primary judge erred in finding that the appellant was not in a de facto relationship immediately before deceased's death - Whether deceased made adequate provision for appellant's proper maintenance, support or advancement in life

Legislation:

Family Provision Act 1972 (WA), s 6(1), s 7(1)(a)

Interpretation Act 1984 (WA), s 13A

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	JC Yeldon
Second Respondent	:	JC Yeldon
Third Respondent	:	In Person

Solicitors:

Appellant	:	In Person
First Respondent	:	HLB Lawyers
Second Respondent	:	HLB Lawyers
Third Respondent	:	In Person

Cases referred to in decision:

AB v FGH [2022] WASC 244
Britt v Office of the State Coroner [2022] WASCA 75
Devereaux-Warnes v Hall [No 3] (2007) 35 WAR 127
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v O [2022] WASCA 23
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
H v P [2011] WASCA 78
House v The King (1936) 55 CLR 499
Jelly v Illife [1981] Fam 128
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2022] WASC 216
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
Musasghi v Gebremariam [2022] WASCA 37
Norbis v Norbis (1986) 161 CLR 513
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Re Beaumont (deceased) [1980] Ch 444
Stone v Braun [2015] WASCA 103; (2015) 13 ASTLR 444
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Warren v Coombes (1979) 142 CLR 531
Zitman v Zitman [2023] WASC 135

JUDGMENT OF THE COURT:

Introduction

The appellant, Nicolina Keremestevski, applied for orders that adequate provision be made for her proper maintenance, support or advancement in life out of the estate of the late Mark McLeod (Mr McLeod), pursuant to s 6(1) and s 7(1)(a) of the Family Provision Act 1972 (WA) (the Act).
The appellant claimed that she was living as the de facto partner of Mr McLeod immediately before his death, and that she therefore fell within the category of persons entitled to make a claim under s 7(1)(a) of the Act.
The first respondent, Shaun McLeod, is the nephew of Mr McLeod and the executor of his estate appointed under Mr McLeod's will, which was made three days before his death. Shaun McLeod is also the second respondent to the appeal, in his capacity as a beneficiary under Mr McLeod's will. The third respondent, Leah McLeod, is the niece of Mr McLeod and is also a beneficiary under the will.
The second and third respondents opposed the appellant's application and, in doing so, asserted that the appellant was not in a de facto relationship with Mr McLeod.
The matter was heard before Smith J on 8 March 2022. The learned trial judge concluded that the appellant had not discharged the burden of establishing that she was living as the de facto partner of Mr McLeod immediately before his death, and therefore dismissed the application.[1] Her Honour, nevertheless, went on to consider the position had the appellant been able to establish that she was Mr McLeod's de facto partner, and in those circumstances concluded that inadequate provision had been made by Mr McLeod for the appellant in the will.
[1] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2022] WASC 216 [219] (Primary Decision).
The learned trial judge also concluded that if the appellant had established that she was living with Mr McLeod as his de facto immediately before his death, she would have altered the gifts made under the will to certain charities by making an order that those gifts be paid to the appellant.
The appellant now appeals against the order that her application be dismissed, as well as several other orders, including costs orders. For the following reasons, we would allow the appeal.

Mr McLeod and his will

Mr McLeod was born on 9 August 1956. During his lifetime, Mr McLeod did not marry or have any children. Mr McLeod died on 6 November 2019, aged 63 following a diagnosis of pancreatic cancer.
Mr McLeod made a will dated 3 November 2019. A grant of probate was issued to the first respondent on 29 November 2019. In his will, Mr McLeod:[2]
(a)made a number of specific gifts of particular pens and watches to the second and third respondents;
(b)left one quarter of his remaining watches, pens, mobile phones and leather goods to the appellant, the second and third respondents and James 'Jim' Sharland (a friend);
(c)gave his cousin, Patricia Tickel, the sum of $5,000;
(d)gave the Cat Haven of Shenton Park the sum of $5,000;
(e)gave the RSPCA Australia the sum of $5,000;
(f)gave the appellant the sum of $40,000; and
(g)gave the residue of his estate, in 33.33 shares to each of the appellant and the second and third respondents.
[2] GAB 462.
Mr McLeod's estate is not large. The statement of assets and liabilities in relation to the estate dated 9 May 2021 reveals that after the repair and sale of the residential property owned by Mr McLeod, and other estate debts had been paid (including funeral expenses), the value of the estate was in the vicinity of $99,602.55 (not accounting for the value of the collection of pens, watches, mobile phones and leather goods referred to in the will and noting the legal fees for the estate owed to the executor's instructing solicitors of $3,500 remained outstanding).[3] In accordance with the will, the appellant was to receive (in addition to the specific gifts regarding pens, watches, mobile phones and leather goods) an amount of $53,700 (comprising the gift of $40,000 plus the amount of $13,700 being a 1/3 share of the residue of the estate) and the second and third respondents would each receive $13,700. The appellant's share amounted to approximately 54% of the cash value of the estate.
[3] GAB 344.
As at the date of the hearing of the appeal, counsel for the first respondent confirmed that he was instructed that neither the cash nor the specific bequests of pens, watches, mobile phones or leather goods had been distributed. Counsel was also instructed that the size of the estate remains in the vicinity of that stated in the statement of assets and liabilities.[4]
[4] Appeal ts 43.

Parties' case at trial

By way of overview, the appellant's case at trial was that she first met Mr McLeod on 26 May 2006 and they began their relationship soon after. That relationship was a sexual relationship, and at first the relationship was that of girlfriend and boyfriend. Mr McLeod proposed to the appellant in 2006 and she accepted that proposal, but they never married. Their relationship became a de facto relationship in 2015, when Mr McLeod commenced living with her at her home in Osborne Park, and he continued to live with her until he died in 2019.
The appellant's case was that when Mr McLeod commenced living with her, he left his own unit in Tuart Hill empty and without tenants and used it largely for storage, that she and Mr McLeod continued their sexual relationship and they slept in the same bed each night. The appellant paid for the majority of their expenses from 2015 onwards because, by that point, Mr McLeod had limited financial resources. The appellant's evidence was that she and Mr McLeod were in a committed relationship and gave each other birthday gifts and cards and that she had met Mr McLeod's mother on a few occasions.
In 2019, Mr McLeod was diagnosed with pancreatic cancer and was admitted to hospital sometime in September 2019. The appellant took leave from her employment and supported and cared for him. The appellant's case is that when Mr McLeod was discharged from hospital later in September 2019, he returned to live with her at her house until he was re‑admitted to hospital on 17 October 2019 where he remained until he died. The appellant was named on various medical forms as his next of kin.
In terms of the provision made under the will, the appellant's case at trial was that she sought a specific bequest in the form of the whole of Mr McLeod's Tuart Hill property. However, by the time of the trial that property had been sold, and the appellant instead sought to be awarded the full amount of cash which forms part of the estate, approximately $99,602.
The second and third respondent's case at trial was that Mr McLeod and the appellant were boyfriend and girlfriend, but not de facto partners. The second and third respondent's case was that the appellant and Mr McLeod did not own any joint property; Mr McLeod maintained his own property and car which he paid for; Mr McLeod did not live with the appellant; Mr McLeod had dinner each night with his mother at her nursing home; Mr McLeod and the appellant did not socialise with their family or friends together; Mr McLeod had not mentioned the appellant to any of his extended family, including the second and third respondents; that Mr McLeod had never described the appellant as his de facto to anyone, including Mr McLeod's mother and that Mr McLeod had described his relationship to a friend (Jim Sharland) as being that of boyfriend and girlfriend.
The second and third respondent's case in relation to the provision made under the will was that sufficient provision had already been made for the appellant in the will, and that the allocations made to the other beneficiaries should not be disturbed.

Reasons of the trial judge

At the commencement of her reasons for decision, the learned trial judge identified the following issues requiring determination:[5]
(a)whether the appellant was living as the de facto partner of Mr McLeod immediately before his death;
(b)if the appellant was Mr McLeod's de facto partner:
(i)whether the disposition of Mr McLeod's estate by his will did not make adequate provision for the appellant for her proper maintenance, support or advancement; and
(ii)if the answer to (b)(i) is yes, what would be adequate provision for the proper maintenance, support or advancement of the appellant; and should the court exercise its discretion to make an order for provision in her favour?
[5] Primary Decision [5].
The learned trial judge went on to outline the legal principles to be applied in determining whether a de facto relationship existed. In this regard, her Honour had regard to s 7(1) of the Act, which identifies those persons who may make an application under the Act for provision out of the estate of a deceased. The learned trial judge recited s 7(1)(a) of the Act,[6] which provides that an application may be made by:
a person who is married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
[6] Primary Decision [33].
Her Honour then observed that whether a deceased person and an individual were in a de facto relationship immediately before the death of the deceased person is to be determined by considering the evidence at trial in light of the meaning of a 'de facto relationship' as contained in s 13A of the Interpretation Act 1984 (WA) (Interpretation Act) which provides as follows:[7]
[7] Primary Decision [34].
13A. De facto relationship and de facto partner, references to
(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property they own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a) the persons are different sexes or the same sex; or
(b) either of the persons is legally married to someone else or in another de facto relationship.
The learned trial judge went on to refer to the legal principles concerning the application of that definition that were identified in the recent decision of G v O.[8] The trial judge also outlined that s 4(2) of the Act provides that a matter of fact should be taken to be proved if it is established to the reasonable satisfaction of the court.[9]
[8] G v O [2022] WASCA 23 [13], [115] ‑ [122].
[9] Primary Decision [129].
Her Honour then considered the evidence led at trial in light of the definition, and in the course of so doing made a number of findings of fact. Most significantly, the learned trial judge found that:
(a)The appellant and Mr McLeod had been in a sexual relationship since 2006, and although from time to time their relationship had ceased for periods, their relationship continued until Mr McLeod died.[10]
[10] Primary Decision [131].
(b)Mr McLeod lived at the appellant's villa from 2015, in the sense that he slept there every night until he went to hospital. Further, from 2015 the appellant and Mr McLeod shared the same bed on most if not all nights at the appellant's villa.[11]
(c)Mr McLeod used the appellant's home and vehicle as if they were his own.[12] Mr McLeod spent a considerable amount of time at the appellant's villa and he stayed there alone whilst the appellant was in New Zealand in the middle of 2019.[13]
(d)By at least 2015, Mr McLeod's business had ceased to operate, and he had limited access to funds. Mr McLeod only had a small amount of superannuation and did not apply for Centrelink benefits.[14]
(e)Mr McLeod had insufficient financial resources to meet his personal expenses at least in the last two years of his life (if not from 2015) because it appears from 2017 he relied on a credit card for funds, which resulted in a debt that he would not have been in a position to personally repay without selling his villa.[15]
(f)The appellant paid for all expenses relating to her villa, including utility bills. The appellant purchased food for both her and Mr McLeod to eat and Mr McLeod made no financial contributions to her expenses or to building her assets.[16]
(g)Mr McLeod paid all of his own expenses relating to his villa in Tuart Hill, including his utility bills. He also paid for a storage unit at another location. Mr McLeod visited his villa at least every few days and watered his plants and collected his mail.[17]
(h)Mr McLeod took and maintained steps to keep his property and financial affairs entirely separate from the property and financial affairs of the appellant.[18]
(i)Although the trial judge accepted that Mr McLeod proposed marriage to the appellant in 2006, the trial judge found that Mr McLeod did not maintain an intention to marry the appellant at any time after 2015. The only photographs that were at Mr McLeod's villa, other than members of his family, were of a woman who had been his girlfriend sometime in the past.[19]
(j)The appellant believed from 2015 that she was in a marriage‑like relationship with Mr McLeod.[20]
(k)The appellant provided no evidence that she claimed Mr McLeod as a dependent de facto spouse on her taxation returns or notified him as such on any documents which related to her personal affairs.[21]
[11] Primary Decision [132].
[12] Primary Decision [132].
[13] Primary Decision [133].
[14] Primary Decision [134].
[15] Primary Decision [136].
[16] Primary Decision [135].
[17] Primary Decision [137].
[18] Primary Decision [138].
[19] Primary Decision [139].
[20] Primary Decision [140].
[21] Primary Decision [141].
The learned trial judge then stated that, in accordance with the decision of G v O, the question to be determined was whether the appellant and Mr McLeod:[22]
… had formed a common intention to form a consensual enduring union. What must be ascertained is what was the reason for [the appellant and Mr McLeod's] adoption of any elements that are generally characteristic of a marriage.
[22] Primary Decision [140].
Her Honour then concluded:
142What is telling against a finding that they were in a marriage‑like relationship is that although Nicolina provided Mark with financial support at least from 2015 (if not earlier), by paying for food and other day-to-day living expenses, and allowing him to use her property as if it was his own, this degree of financial dependence on its own with a sexual relationship without more, is also consistent with a relationship of girlfriend and boyfriend.
143To infer a marriage-like relationship there must be more. Although they had a sexual relationship and they slept in the same bed together for many years, apart from sharing food and shelter they lived very separate lives.
144Apart from the last few weeks of Mark's life when he was seriously ill in hospital, they did not generally present themselves to others as a couple.
145Although Mark had met Nicolina's sister, Veronika Hamilton, and he had met some of her friends, he did not tell any of his extended family about her existence. He spent two hours in the early evening of each day with his mother and rarely spoke to her about Nicolina. When he did, he did not indicate to her that he was in a long-term committed relationship with Nicolina. The only friend that he regularly saw was Jim Sharland, and he made it clear to Jim Sharland that his relationship with Nicolina was that of girlfriend and boyfriend. He also described the nature of his relationship with Nicolina to Shaun as his girlfriend.
146For these reasons, the application for provision should be dismissed.
Notwithstanding this conclusion, the learned trial judge went on to consider, on a provisional basis, whether she would have allowed the appellant's application for adequate provision if she had been satisfied that the appellant had been in a de facto relationship with Mr McLeod immediately before his death.
The trial judge summarised the well-established legal principles relevant to an application made under s 6(1) of the Act,[23] by reference to the decision of this court in Musasghi v Gebremariam.[24] These legal principles are not in dispute and are referred to later in these reasons.
[23] Primary Decision [148] - [157].
[24] Musasghi v Gebremariam [2022] WASCA 37 [107] - [121].
Having considered the evidence of the parties relevant to this issue,[25] the learned trial judge concluded that had she been satisfied that the appellant was in a de facto relationship with Mr McLeod immediately before his death, she would have found that Mr McLeod made inadequate provision for the appellant. Her Honour also said that she would have exercised her discretion to set aside the gifts to the RSPCA and the Cat Haven, and to make an order for provision of an additional $10,000 in favour of the appellant.[26] In reaching this conclusion, her Honour observed that a court would be readier to disturb a testamentary provision in favour of a beneficiary such as a charity with whom a deceased had no connection as compared to a provision in favour of a dependent relative.[27]
[25] Primary Decision [158] - [186], [195] - [210].
[26] Primary Decision [147].
[27] Primary Decision [157].

The appeal

Grounds of appeal

The appellant was unrepresented at the trial and in the appeal. The appellant's case contains 24 grounds of appeal, although three of the grounds repeat earlier grounds of appeal. As the appellant is unrepresented, the grounds of appeal have been drafted in a manner which is difficult to understand, or which do not clearly identify the precise error alleged.
It is not necessary for the purposes of considering and determining this appeal to outline or consider the grounds of appeal in detail. This is because it became clear during the hearing of the appeal, after making due allowance for the appellant being unrepresented, that the two key grounds of the appellant's appeal were as follows:
(1)given the findings of fact made by the trial judge in her reasons for decision, and based on all the evidence at trial, the trial judge erred in concluding that the appellant had failed to establish that she was living as the de facto partner of Mr McLeod immediately before his death; and
(2)the trial judge erred in the provisional exercise of her discretion to make adequate provision for the proper maintenance etc of the appellant by failing to order that the appellant receive the entirety of Mr McLeod's estate, save for the specific gifts of pens, watches, mobile phones and leather goods.

Parties' positions

Reduced to its core, the appellant's case in relation to the first key ground of appeal is that when regard is had to all of the evidence, the trial judge erred in concluding that she was not living as Mr McLeod's de facto partner immediately before his death for the purposes of s 7(1)(a) of the Act. The appellant's case is that the trial judge should have found that she was living as Mr McLeod's partner at the relevant time, as they lived together in a marriage-like relationship for the purposes of s 13A of the Interpretation Act.
If successful on this first key ground, by the second key ground the appellant in effect seeks an order for adequate provision for her proper maintenance etc that would see her receive all of the cash from Mr McLeod's estate. The appellant does not, however, seek to disturb the provisions of the will which concern the specific gifts regarding the pens, watches, mobile phones or leather goods.
The respondents' position is that the decision of the learned trial judge to dismiss the application for adequate provision, and to make other consequential orders, should not be disturbed. In relation to the first key ground, the respondents argue, in effect, that the trial judge had regard to all of the evidence, and balanced the various factors referred to in s 13A of the Interpretation Act, and that no error is identified in the trial judge's conclusion that the relationship between the appellant and Mr McLeod immediately before death was that of girlfriend and boyfriend and not de facto partners. The second respondent relied in particular on the findings made in [140] ‑ [145] of the Primary Decision.
In relation to the second key ground, the respondents did not challenge the learned trial judge's provisional conclusion that inadequate provision was made in Mr McLeod's will for the proper maintenance etc of the appellant; or the learned trial judge's provisional exercise of discretion to increase the provision made for the appellant in the will by $10,000. The respondents oppose the appellant's claim for further provision from the estate on the basis that adequate provision has already been made in the form of the specific gifts of pens, mobile phones, watches and leather goods; the bequest of (now) $50,000 and being the recipient of 1/3 of the residual estate (which amounts to a total of $41,102).[28] The respondents submit that the wishes of Mr McLeod as detailed in his will should therefore be honoured.
[28] Primary Decision [164].

Legal Principles

Key ground 1 - de facto relationship

Section 7(1) of the Act identifies the various persons who are entitled to make an application under s 6(1) of the Act. One eligible applicant is a person living as the de facto partner of the deceased person immediately before the death of the deceased person.
As correctly outlined by the learned trial judge, whether the appellant was living as the de facto partner of Mr McLeod immediately before his death, as required by s 7(1)(a) of the Act, is to be determined by considering the evidence that was adduced at trial in light of the meaning of 'de facto relationship' as defined in s 13A of the Interpretation Act. The application of this definition was considered in the decision of Britt v Office of the State Coroner,[29] which was an appeal arising out of a dispute as to whether the de facto partner of the deceased or the mother of the deceased should have the conduct of the funeral. A central question in that case was whether the second defendant was the deceased's de facto partner for a period of two years prior to his death. There is no requirement under s 7(1)(a) for the appellant and Mr McLeod to have been in a de facto relationship for two years prior to Mr McLeod's death, however what was said in Britt remains instructive.
[29] Britt v Office of the State Coroner [2022] WASCA 75.
After having regard to the definition of the term 'de facto relationship' in s 13A of the Interpretation Act, Mitchell JA set out the principles to be applied by the court when determining whether, at the relevant time the respondent and the deceased in that case lived as de facto partners:[30]
This court has considered the operation of this definition, in the context of family law proceedings, in its two decisions in G v O. The following general principles may be derived from the discussion in those cases:
1.To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship.
2. The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage-like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.
3. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances.
4. The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives.
[30] Britt v Office of the State Coroner [2022] WASCA 75 [73].
As it is the parties' common intention which is critical, a subjective belief or intention held by one party as to whether their relationship is 'marriage‑like' is not relevant. Likewise, an intention on the part of one party to form a consensual union which will endure will not suffice to characterise a relationship as 'marriage‑like' any more than a wish on the part of one party to a relationship to get married brings about a marriage.[31]
[31] G v O [2022] WASCA 23 [121].
The determination of the question of whether the parties were in a 'marriage‑like' relationship, having regard to the factors in s 13A of the Interpretation Act, has been said to involve elements of fact, degree and value judgment, and draws upon a judge's experience and familiarity with the nature of the subject matter.[32]
[32] G v O [2022] WASCA 23 [102]; H v P [2011] WASCA 78 [45].
The Act does not specify what is meant in s 7(1)(a) of the Act by the phrase 'immediately before the death of the deceased person'. Counsel for the second respondent was unable to refer the court to any legal authorities regarding what is meant by this phrase in the present context, but he had no notice that this issue might be raised by the court. Our subsequent research has also been unable to identify any authorities in relation to this particular section of the Act. However, the learned authors of the Law of Succession,[33] refer to a number of English authorities referring to s 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975 (UK) which provides that one category of persons able to apply for provision from the deceased's estate is:
any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
[33] G E Dal Pont, K F Mackie, Law of Succession (LexisNexis Butterworths, 3^rd Ed, 2021) [16.53].
In those cases it was concluded that the words 'immediately before the death of the deceased', used in this statutory context, are not to be construed literally as applying to the precise situation at death, but rather to something more substantial and enduring, and refer to the general arrangements for maintenance subsisting at the time of death.[34]
[34] Jelly v Illife[1981] Fam 128, 141; Re Beaumont (deceased)[1980] Ch 444, 452.
Some care must be taken in considering whether these cases provide any assistance in construing the statutory language used in s 7(1)(a) of the Act. Quite apart from the fact that those cases are concerned with different legislation, unlike the Inheritance (Provision for Family and Dependants) Act 1975 the meaning of s 7(1)(a) of the Act is necessarily informed by s 13A of the Interpretation Act.
In circumstances in which the court has not had the benefit of considered submissions about the proper construction of s 7(1)(a) of the Act it would be inappropriate for us to state any concluded views about this issue. It is sufficient for present purposes to note that s 7(1)(a) does require the court to make an assessment about whether an applicant for provision under the Act was 'living as the de facto partner of, the deceased person' at a particular point in time, namely, 'immediately before the death of the deceased person'. However, the question of whether an applicant seeking orders for provision was living as a de facto partner of a deceased person, and was therefore in a de facto relationship with that person, at that particular point in time, will depend on the court's overall assessment of the factors and relevant elements of the relationship. That assessment will not be confined to the factors and elements of the relationship that existed only at the precise moment immediately prior to the death of the deceased. Instead, as the various non‑exhaustive 'indicators' identified in s 13A(2) of the Interpretation Act contemplate, the assessment will involve an examination of the whole period of the relationship.

Key ground 2 - provision for the proper maintenance etc

The second key ground of appeal concerns the learned trial judge's provisional exercise of the discretion to order such provision as the court thinks adequate for the proper maintenance, etc, of the appellant.
The legal principles relevant to an application under s 6(1) of the Act have been considered previously by this court on numerous occasions including Lemon v Mead[35] and Musasghi v Gebremariam,[36] and are not in dispute. It is not necessary to set these principles out in full here.
[35] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [46] - [83].
[36] Musasghi v Gebremariam [2022] WASCA 37 [107] - [121].
In short, the authorities provide for a two-stage test in which the court is required to decide, first, as a question of fact as at the date of the death of the deceased, whether the applicant has been left without adequate provision from the estate of the deceased for their proper maintenance, support, education or advancement in life. This first stage is known as the jurisdictional question.[37]
[37] See, for example, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [4] - [6] (Gleeson CJ), [56] (Gummow & Hayne JJ).
The word 'proper' connotes something different from the word 'adequate'.[38] 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard of maintenance, support, education or advancement.[39]
[38] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [60] - [61].
[39] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [65].
The determination of whether the provision, if any, is 'adequate' for the claimant's 'proper' maintenance, support, education or advancement, involves not only a scrutiny of the requirements of the claimant that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased. The totality of the relationship will include factors such as any sacrifices made or services given by the claimant to or for the benefit of the deceased; any contributions by the claimant to building up the deceased's estate; and the conduct of the claimant towards the deceased and of the deceased towards the claimant.[40] The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.[41]
[40] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [62] - [64].
[41] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [65].
If the first stage is answered in an applicant's favour, the court then moves to the second stage, which requires the court to exercise its discretion to order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance, etc, of the applicant. That question is to be answered by reference to the evidence and circumstances as they exist as at the date of the hearing.[42] How that discretionary exercise is undertaken has been variously described in the authorities.[43] In Stone v Braun,[44] Beech J (with whom Buss and Mazza JJA agreed) held:
[T]he court's task in undertaking the second stage must be taken into account. That task has been described as 'instinctive synthesis' or 'intuitive assessment', in respect of which reasons for the appropriate provision need not be fully articulated.
[42] See, for example, Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [53], [56].
[43] See AB v FGH [2022] WASC 244 [103] - [108].
[44] Stone v Braun [2015] WASCA 103; (2015) 13 ASTLR 444 [92].
Factors which may be relevant to the exercise of that discretion include an applicant's circumstances (including financial circumstances; level of education; employment history and other personal circumstances); their need for, and moral claim to, provision from the estate; the need and moral claims of other persons who have a legitimate claim upon the testator's bounty; the totality of the relationship between the deceased and the applicant; contingencies; and the size of the estate as at the date of the testator's death.[45]
[45] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [245]; Zitman v Zitman [2023] WASC 135 [49].
While the court is empowered to order such provision as the court thinks fit, the exercise of that discretion is constrained by the wording of s 6(1) of the Act, and the court is not empowered to award more than what is adequate provision for the claimant's proper maintenance etc,[46] and is not to exercise the discretion for the purpose of making what may appear to the court to be a fair distribution of the estate.[47]
[46] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [58], [268].
[47] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [58], [244].
This ground proceeds on the assumption that the first key ground has been allowed. It also assumes that the 'jurisdictional' question, that the deceased did not make adequate provision for the appellant in his estate, is resolved in the appellant's favour. As we have already observed, none of the respondents challenged the trial judge's provisional determination that Mr McLeod had made inadequate provision for the appellant in his estate.

Standard of appeal

The evaluative nature of the decision-making process in relation to an application under s 6(1) of the Act raises a question regarding the appropriate legal test to be applied to this appeal.
Turning to the first key ground of appeal, this court has not authoritatively determined whether the standard of appellate review for a finding that a de facto relationship exists (or does not) is the standard applicable to the exercise of a discretion as explained in House v The King,[48] or whether it is the 'correctness standard' as explained in Warren v Coombes.[49]
[48] House v The King (1936) 55 CLR 499, 504 - 505.
[49] Warren v Coombes (1979) 142 CLR 531, 551 - 552.
In the decision of H v P, which concerned an appeal from an application for a property settlement under the Family Court Act 1997 (WA), Murphy JA (with whom Pullin and Buss JJA agreed), observed:[50]
Although the making of an evaluative determination in the nature of the decision under appeal may arguably be likened to the exercise of a discretion in, for example, the assessment of damages (as to which see Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 565 (Barwick CJ)), it is, strictly speaking, a question of objective fact to be determined in all of the circumstances: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (211), Lynam v The Director‑General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128, 131 (Fitzgerald J). See also Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 43 - 44 (Wilson J). As the point was not argued in this appeal, it is unnecessary to 'go further' and consider whether the instant decision is sufficiently analogous to a discretionary decision so as to attract the principles laid down in House v The King (1936) 55 CLR 499: cf Mobilio v Balliotis (1998) 3 VR 833, 837 (Brooking JA); Singer v Berghouse (210 - 212, 226); Dwyer v Calco Timbers Pty Ltd [2008] HCA13 [37] - [40]; (2008) 234 CLR 124, 138 - 139.
[50] H v P [2011] WASCA 78 [48].
In both the 2018 and 2022 decisions of G v O,[51] and in Britt v Office of the State Coroner,[52] this court noted the observations of the court in H v P, and in each case proceeded on the basis that it was not necessary to demonstrate error of the type identified in House v The King, but without formally deciding the question.
[51] G v O [2018] WASCA 211; (2018) 53 WAR 393 [50] and G v O [2022] WASCA 23 [104].
[52] Britt v Office of the State Coroner [2022] WASCA 75 [13].
It is appropriate in the context of this appeal for the court to formally consider this question. Counsel for the second respondent accepted, properly in our view, that the appropriate standard of appeal was the 'correctness standard' as explained in Warren v Coombes.[53] The evaluative task of determining whether two people are in a de facto relationship is not properly characterised as an exercise of discretion on the part of the judicial officer.
[53] Warren v Coombes (1979) 142 CLR 531, 551 - 552.
The concept of a 'judicial discretion' was recently considered by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[54] When considering an appeal from a decision to permanently stay proceedings on the ground that they were an abuse of process, the High Court accepted that the concept of a 'discretion' is 'apt to create a legal category of indeterminate reference'.[55] However, the High Court held that an essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open.[56] Further, the High Court held that:[57]
The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the 'correctness standard' applies) was identified as that between questions lending 'themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions' in which event 'it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance', and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
[54] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
[55] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ).
[56] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ). See also Norbis v Norbis (1986) 161 CLR 513.
[57] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ) (footnotes omitted).

In the present case, the question of whether the appellant and Mr McLeod were in a de facto relationship immediately before the death of Mr McLeod, can admit only one objectively correct answer. This is notwithstanding that the task of coming to that one objectively correct answer requires an evaluative judgment involving elements of fact and degree having regard to the factors in s 13A of the Interpretation Act, and drawing upon a judge's experience and familiarity with the nature of the subject matter.
Accordingly, it is not necessary for the appellant, in relation to the first key issue, to demonstrate error of the type explained in House v The King. However, it is necessary for the appellant to demonstrate error on the part of the primary judge. The task of the appellate court when an appeal concerns an evaluative judgment was explained in the 2022 decision of G v O as follows:[58]
Where findings or conclusions involve elements of fact, degree, opinion or judgment, the demonstration of error may not be straightforward. The difficulty in doing so may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, or because the nature of the issue is one such that, while not a discretion, there cannot be said to be one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge. Nevertheless, even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate the conclusion that the trial judge was wrong, and that the appeal court must interfere.
[58] G v O [2022] WASCA 23 [103].

Disposition

Key ground of appeal 1 - de facto relationship

In all the circumstances, we have concluded that the learned trial judge erred in concluding that Mr McLeod and the appellant were not in a de facto relationship immediately before Mr McLeod's death.
In this context, it is important to have regard to the wording of s 13A(1) of the Interpretation Act, which provides that that a de facto relationship is a relationship (other than a marriage) between two persons who live together in a 'marriage‑like' relationship. The concept of a 'marriage-like' relationship involves a consensual union which is intended by the parties to endure. The determination of whether a relationship is 'marriage‑like' involves an overall assessment of facts and relevant elements of the relationship. The various factors referred to in s 13A(2) of the Interpretation Act are indicators of whether this 'marriage‑like' relationship exists, but are not essential.
In our view, when the various findings made by the trial judge are viewed as a whole, they very clearly demonstrate that Mr McLeod and the appellant were in a 'marriage‑like' relationship consisting of a consensual union which was intended to endure. The trial judge's findings regarding the relationship that existed between the appellant and Mr McLeod exemplify a 'marriage‑like' relationship immediately prior to the death of Mr McLeod. In particular, her Honour found that the appellant and Mr McLeod had been in a sexual relationship since 2006 until Mr McLeod died;[59] that Mr McLeod lived at the appellant's villa from 2015 and that the appellant and Mr McLeod shared the same bed on most if not all nights at the villa;[60] that Mr McLeod used the appellant's home and vehicle as if they were his own;[61] that Mr McLeod had insufficient financial resources to meet his personal expenses at least in the last two years of his life (if not from 2015);[62] that the appellant paid for all expenses relating to her villa, including utility bills; and that the appellant alone purchased food for both her and Mr McLeod to eat.[63]
[59] Primary Decision [131].
[60] Primary Decision [132].
[61] Primary Decision [132].
[62] Primary Decision [136].
[63] Primary Decision [135].
Significantly, the trial judge also found that:[64]
Apart from the last few weeks of [Mr McLeod's] life when he was seriously ill in hospital, they did not generally present themselves to others as a couple.
[64] Primary Decision [144].
It is apparent from this finding that the learned trial judge did accept that in the last few weeks of Mr McLeod's life, he and the appellant did present themselves to others as a couple. This conclusion is consistent with the medical records and documents which refer to and identify the appellant as being Mr McLeod's partner and next of kin,[65] and also the evidence given by the appellant as to the supporting role she played for Mr McLeod during his illness.
[65] Primary Decision [104], [106] - [108].
There is no challenge to any of these findings.
Notwithstanding these findings, the trial judge concluded that Mr McLeod and the appellant were not in a de facto relationship immediately before his death. In reaching this conclusion, the learned trial judge relied on the following three factors:
(a)although the appellant provided Mr McLeod with financial support from at least 2015 (if not earlier), and they were in a sexual relationship, this degree of financial dependence 'without more' is also consistent with a relationship of girlfriend and boyfriend;[66]
(b)apart from having a sexual relationship, sleeping in the same bed together for many years and sharing food and shelter, Mr McLeod and the appellant lived very separate lives;[67] and
(c)the evidence given by several of Mr McLeod's family members and his friend Jim Sharland that Mr McLeod did not mention the appellant to them or if he did, that he described the appellant as his girlfriend.[68]
[66] Primary Decision [142].
[67] Primary Decision [143].
[68] Primary Decision [145].
In relation to the first of these factors, it is not clear why the learned trial judge concluded that the relationship between Mr McLeod and the appellant was also consistent with a relationship of boyfriend and girlfriend, as her Honour also found that the appellant provided Mr McLeod with financial support from at least 2015 by paying for all food and other day to day living expenses, including allowing Mr McLeod to use her property as if it was his own, and the appellant and Mr McLeod were in an on-going sexual relationship since 2006. Acknowledging that there are many different types of relationships, the extent and degree of Mr McLeod's financial dependence on the appellant, combined with their living arrangements (including their sexual relationship) and the length of that relationship is, in our view, more consistent with a marriage‑like relationship, than that of boyfriend and girlfriend.
In relation to the second factor referred to at [66] above, the findings summarised in [62] above are all consistent with the appellant and deceased leading a shared life, which was accepted by her Honour. The learned trial judge's finding that apart from these matters, the appellant and Mr McLeod lived very separate lives appears to have been underpinned by her Honour's conclusion that apart from the last few weeks of Mr McLeod's life, Mr McLeod and the appellant did not generally 'present themselves to others as a couple'.
The notion that the appellant and Mr McLeod did not generally 'present themselves to others as a couple', however, bears further scrutiny.
What is evident from the learned trial judge's findings, and the evidence when read as a whole, is that Mr McLeod was a largely solitary individual who did not generally socialise with many people at all. While he had met or spoken over the phone to some of the appellant's friends and family, he did not generally join in the appellant's social events.[69] In the same way, Mr McLeod did not generally appear to socialise with his own extended family members on a very regular basis, save for his mother, who he saw every evening for two hours.[70] Mr McLeod introduced the appellant to his mother and they met on a further two occasions.[71] Mr McLeod was also estranged from his brother.[72] The affidavit evidence from several extended family members referred to Mr McLeod seeing those extended family members at family events (such as birthdays and funerals) but without any detail as to how regular those events were.[73] Mr McLeod always attended these extended family events alone. Mr McLeod's only significant friend was Jim Sharland, with whom he met for lunch once a week for three to four hours on his own.[74]
[69] Primary Decision [61] - [62], [75] - [80]; GAB 293 - 304.
[70] Primary Decision [64].
[71] Primary Decision [63].
[72] Primary Decision [85].
[73] Primary Decision [84]; GAB 423 - 438, 445 - 446.
[74] Primary Decision [67].
When the appellant was at work, and other than visiting his mother and having lunch with Jim Sharland, Mr McLeod appears to have spent most of his time either at the appellant's house (which he shared and had full use of) or visiting his villa several times a week to collect mail and water the plants. Otherwise, Mr McLeod spent the majority of his time with the appellant.
In truth, in our respectful view, the evidence does not so much establish that Mr McLeod and the appellant did not generally present as a couple, but rather that Mr McLeod did not socialise, either on his own or with the appellant as a couple, very much at all. The opportunities for the appellant and Mr McLeod to 'present as a couple' were limited indeed. It was not until Mr McLeod was diagnosed with pancreatic cancer and started attending the hospital and other medical visits, that he was regularly in public places with the appellant, who he relied on to assist him whilst he was ill. In other words, when it mattered, and the circumstances required, the appellant and Mr McLeod, very much 'presented as a couple'.
The third factor referred to at [66] above, finds expression in s 13A(2)(i) of the Interpretation Act, which identifies, as a relevant factor for consideration, the 'reputation, and public aspects, of the relationship between' the persons in question. As outlined by the court in G v O, it is the parties' common intention which is critical, and a subjective belief or intention held by one party as to whether their relationship is 'marriage‑like', is not relevant.[75] The learned trial judge referred to this general principle,[76] and relied upon it to conclude that the appellant's belief that she was in a marriage‑like relationship with Mr McLeod was not sufficient.[77] Nevertheless, her Honour seems, at the same time, to have accorded weight to Mr McLeod's subjective belief as to the nature and status of his relationship as she clearly placed weight on what Mr McLeod did (or did not) tell his family and Jim Sharland.[78]
[75] G v O [2022] WASCA 23 [121].
[76] Primary Decision [140].
[77] Primary Decision [140].
[78] Primary Decision [82] - [84].
In concluding that the learned trial judge erred in her characterisation of the relationship, we have not overlooked the findings made regarding the separate property and financial affairs of Mr McLeod and the appellant, namely that Mr McLeod financially maintained his own home and car and did not contribute to the appellant's expenses for her own home and car.[79] It is not, however, a requirement that two persons jointly own property, or jointly share the costs of any property, in order for the persons to be in a 'marriage‑like' relationship. Every relationship is different. When the findings made by the learned trial judge in the Primary Decision are considered as a whole, we are of the view that those findings are supportive of one conclusion, being that immediately before Mr McLeod's death Mr McLeod and the appellant were in a 'marriage‑like' relationship. Necessarily, the appellant was a person who was living as the de facto partner of Mr McLeod immediately before his death, and she therefore was entitled to make an application for provision out of Mr McLeod's estate for the purposes of s 7(1)(a) of the Act.
[79] Primary Decision [135]; [137].
For these reasons we would uphold the first key ground of appeal.

Applications to admit additional evidence

The appellant filed two written applications, each seeking to adduce further evidence in support of the first key ground of appeal. At the hearing of the appeal, the appellant also sought leave to adduce a bundle of text messages sent between the appellant and Mr McLeod. In light of our conclusion that the first key ground of appeal should be upheld it is not necessary to determine the appellant's applications.

Key ground of appeal 2 - exercise of discretion to make adequate provision for the appellant

As we have already observed, the second key ground of appeal concerns the learned trial judge's provisional exercise of the discretion to make adequate provision for the proper maintenance, etc, of the appellant on the assumption that the appellant and Mr McLeod were in a de facto relationship immediately before his death.
In light of our conclusion in relation to the first key ground of appeal it is unnecessary for us to consider the second key ground of appeal. This is because the effect of our conclusion in relation to the first key ground of appeal is that the order dismissing the appellant's application for adequate provision must be set‑aside.
The question that arises is whether there should be a new trial or whether this court should proceed to finally determine the application.
We are satisfied that the court has before it all the materials necessary for finally determining the appellant's application, including the learned trial judge's unchallenged provisional findings concerning the so‑called 'jurisdictional issue', and her uncontested factual findings that formed the basis of the provisional decision to disturb the gifts that were made from Mr McLeod's estate to the two charities, in the appellant's favour. On this basis, we turn then to deal with the appellant's application in accordance with s 6(1) of the Act.

Stage 1 - jurisdictional question

The first stage is to be considered by reference to the circumstances existing as at the date of the death of Mr McLeod. We conclude that, even accounting for the small size of the estate, the will does not make adequate provision for the proper maintenance, etc, of the appellant. Our reasons for that conclusion are as follows.
First, the learned trial judge made findings regarding the appellant's financial circumstances and ability to meet her financial needs as she approached retirement as at the date Mr McLeod died.[80] These facts are not challenged. On the basis of those unchallenged findings the appellant was therefore approaching retirement age with debt, with limited superannuation and with no other obvious buffer to assist in navigating the vicissitudes of life.
[80] Primary Decision [166] - [172].
Secondly, the appellant's financial needs as at the date of Mr McLeod's death were greater than any of the other beneficiaries. We reach this conclusion based on the unchallenged findings made by the learned trial judge regarding the financial circumstances of the second[81] and third respondents,[82] and our review of the evidence regarding Ms Tickel's circumstances.
[81] Primary Decision [195] - [198].
[82] Primary Decision [202] - [210].
In relation to the second respondent, his financial position, his age and his ability to continue to earn well into the future place him in a superior financial position to the appellant. In relation to the third respondent, her Honour concluded that whilst the third respondent had substantial debts, she had not provided any information about the value of her assets, and whether she and her husband shared any equity in their properties, and as such the learned trial judge was unable to make any real assessment of whether the third respondent's financial position (both at the date of Mr McLeod's death and the date of hearing) was better than the appellant's position.[83] Her Honour also found that although the third respondent had health issues she was able to work full time.[84] In light of those unchallenged findings, and given the third respondent's age, we find that the appellant's financial needs are greater than those of the third respondent.
[83] Primary Decision [210].
[84] Primary Decision [210].
We also observe that there is no evidence of Ms Tickel's financial circumstances, save for a short reference in her affidavit to her struggling financially since the death of her husband.[85] We therefore conclude that the appellant's financial needs are greater than Ms Tickel's financial needs.
[85] GAB 424.
Thirdly, as the de facto partner of Mr McLeod, the appellant not only has a statutory moral claim to Mr McLeod's estate, but also a moral claim based on the nature of their relationship, being one of love and affection. The various findings made by her Honour concerning the totality of the relationship between the appellant and Mr McLeod are summarised in [22] above. Her Honour found, and it is not in dispute, that although the appellant did not make any contributions to Mr McLeod to build up his estate, she did contribute financially to his wellbeing by providing food, shelter and access to her possessions since at least 2015. The learned trial judge also found, and it is not in dispute, that the appellant provided Mr McLeod with companionship and emotional support (noting they may have had a difficult relationship at times).[86]
[86] Primary Decision [186].
Fourthly, the moral claim of the appellant is superior to any of the other beneficiaries. In this regard, we observe that the appellant is the only beneficiary with a statutory claim under the Act. None of the other beneficiaries are statutory beneficiaries, meaning that they do not have a right to make a claim on the estate in accordance with s 7(1) of the Act. However, each may have a moral claim on the estate, based on their relationship with Mr McLeod and in so far as they have been named as a beneficiary in Mr McLeod's will.
The learned trial judge found that the second and third respondents each had a long-standing and loving relationship with Mr McLeod and as such had a moral claim to the estate as non‑statutory beneficiaries who provided emotional support to Mr McLeod during his lifetime.[87] In relation to the second respondent, this included assisting Mr McLeod in putting his affairs in order once his prognosis became clear. Having reviewed the evidence, we also make these findings. We also conclude that the appellant's moral claim is superior to that of either respondent.
[87] Primary Decision [211] - [213].
Of the other beneficiaries, the RSPCA and the Cat Haven are charities. There is no evidence that Mr McLeod had any affiliation with the RSPCA or the Cat Haven. At best there is evidence that Mr McLeod liked animals, especially cats and had cats in his childhood.[88] In these circumstances, the charities' claim are inferior to that of the appellant.
[88] GAB 325; 409; 479.
In relation to Ms Tickel, the evidence is that the purpose of the gift of $5,000 was to compensate Ms Tickel for bed and board provided to Mr McLeod for a period of six months when he was 19 or 20 years old[89] (being some 43 years ago). There is no evidence before the court that Ms Tickel and Mr McLeod had a very close or loving relationship. Ms Tickel's affidavit merely states that she saw Mr McLeod at many family functions in the last decade of his life.[90] In this regard, the moral claim of Ms Tickel is significantly inferior to that of the appellant.

Stage 2 - exercise of the discretion

[89] GAB 325; 424.

[90] GAB 424.

Having found that Mr McLeod's will did not make adequate provision for the appellant's proper maintenance, etc, the court is now required to exercise the discretion, taking into account the facts as they currently exist.

In exercising the discretion, the court is guided by the considerations that would inform a just and wise testator,[91] and observes that the discretion is not to be exercised for the purpose of making what may appear to the court to be a fair distribution of Mr McLeod's estate.[92] A relevant and important consideration in the exercise of the discretion is freedom of testamentary disposition.[93]
[91] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 20.
[92] Lemon v Mead (2017) 53 WAR 76 [244].
[93] Devereaux-Warnes v Hall [No 3] (2007) 35 WAR 127 [91].
As noted by the learned trial judge, the capacity of the court to make adequate provision for the proper maintenance, etc, of the appellant is necessarily constrained by the very small size of Mr McLeod's estate. In this context, it is also appropriate to have regard, not only to the needs of the appellant, but also the needs (and status) of the other beneficiaries.
The learned trial judge made findings regarding financial circumstances of each of the appellant[94] and the respondents[95] as at the date of the hearing. There is no challenge to any of these findings. Further, none of the parties to the appeal submitted that the financial position of any of the parties as at the date of the appeal was substantially different to the position as at the date of the trial or was substantially different as between the various parties.[96]
[94] Primary Decision [172] - [185].
[95] Primary Decision [195] - [210].
[96] Appeal ts 45. Whilst the appellant appears to indicate she may disagree with the proposition, no submission to that effect was ultimately made by appellant.
It is not necessary to set out all her Honour's specific findings regarding the appellant. However, the key points of significance are that the learned trial judge found that whilst the appellant's financial position had improved since the death of Mr McLeod, she was still approaching retirement with debt and without provision for a buffer against the vicissitudes of life.[97] We agree with and make that finding.
[97] Primary Decision [185].
In relation to the second respondent, the evidence as summarised by her Honour establishes that the second respondent's financial position had improved since Mr McLeod's death,[98] and therefore we conclude that he remains in a superior financial position to the appellant. For the reasons previously outlined,[99] we also conclude that the appellant's financial needs are greater than those of the third respondent.
[98] Primary Decision [195] - [201].
[99] See the reasons at [84] above.
As there is no evidence of any detail regarding Ms Tickel's financial circumstances, save for a short reference in her affidavit to her struggling financially since the death of her husband,[100] we find that the appellant's needs as at the date of the hearing are greater than those of Ms Tickel.
[100] GAB 424.
We therefore conclude that the appellant's financial needs and claim as at the date of the hearing of the appeal are greater than any other beneficiary. For the reasons we have previously outlined,[101] the appellant's moral claim is also greater than any other beneficiary.
[101] See the reasons at [86] - [90] above.
For these reasons, and given the limited size of the estate, we consider it appropriate to set aside the gifts made to each of the charities and to Ms Tickel. However, we consider that it is not appropriate to disturb the gifts made to the second and third respondents. Whilst the appellant's need and moral claim is higher than that of either respondent, each respondent had a long-standing and loving relationship with Mr McLeod who did not have any children. Further, the amount provided by Mr McLeod to the appellant (taking into account the additional $15,000) significantly exceeds the amount the respondents were to receive, in the context of the small value of the estate. We also consider that the second and third respondents have a greater moral claim to the estate than Ms Tickel or the charities.
In all the circumstances, we therefore consider that adequate provision for the appellant's proper maintenance, etc, requires that the individual gifts of $5,000 to each of the RSPCA, the Cat Haven and Ms Tickel be set aside and instead be paid to the appellant. The result of which is that the appellant now receives a total cash amount of $68,700 and the second and third respondents continue to receive a cash amount of $13,700 each.

Conclusion

For the above reasons the appeal is allowed. The court will hear from the parties as to the precise orders to give effect to this decision and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AA
Associate to the Honourable Justice Seaward

8 FEBRUARY 2024

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION: KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2024] WASCA 12 (S)
CORAM:   QUINLAN CJ
VANDONGEN JA
SEAWARD J

HEARD:   15 FEBRUARY 2024
DELIVERED          :   26 MARCH 2024
FILE NO/S:   CACV 67 of 2022
BETWEEN:   NICOLINA KEREMESTEVSKI
Appellant
AND
SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD
First Respondent
SHAUN MCLEOD as beneficiary of the estate of MARK ADRIAN MCLEOD
Second Respondent
LEAH MCLEOD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   SMITH J
Citation: KEREMESTEVSKI -v- SHAUN MCLEOD as executor of the estate of MARK ADRIAN MCLEOD [2022] WASC 216
File Number            :   CIV 1625 of 2020

Catchwords:

Wills and estates - Appropriate orders of the court having regard to s 6, s 10 and s 14 of the Family Provision Act 1972 (WA)

Appeal - Practice and procedure - Costs in family provision claim - Order as to costs pursuant to s 14(6) of the Family Provision Act 1972 (WA) - Appellant's fixed costs borne equally by respondents and paid by respondents' share of the estate

Application for suppression order - Whether order suppressing court's reasons allowing appeal should be made

Legislation:

Family Provision Act 1972 (WA)

Result:

Appeal allowed
Appellant awarded court fees in the trial and appeal
Application for suppression order dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	JC Yeldon
Second Respondent	:	JC Yeldon
Third Respondent	:	In Person

Solicitors:

Appellant	:	In Person
First Respondent	:	HLB Lawyers
Second Respondent	:	HLB Lawyers
Third Respondent	:	In Person

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

Harman v Secretary of State for the Home Department [1983] 1 AC 280
HES v The State of Western Australia [2022] WASCA 151 (S)
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
McJannett v Daley [No 2] [2012] WASC 386 (S)
Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215

JUDGMENT OF THE COURT:

Introduction

On 8 February 2024, the court delivered its reasons for decision in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 (Reasons).
In the Reasons, the court upheld the appellant's appeal on the basis that the learned primary judge erred in concluding that the appellant and Mr McLeod were not living as de facto partners immediately before Mr McLeod's death. The court also concluded that it had before it all the material necessary for finally determining the appellant's application under s 6(1) of the Family Provision Act 1972 (WA) (the Act) and determined that application. The court concluded that Mr McLeod's will did not make adequate provision for the proper maintenance, etc, of the appellant and that adequate provision required that the individual gifts of $5,000 to each of the RSPCA, the Cat Haven and Ms Patricia Tickel contained in the will of Mr McLeod be set aside and instead be paid to the appellant.
In the Reasons, the court indicated that it would hear further from the parties as the precise orders necessary to give effect to this decision and as to costs. On 8 February 2024, the court made orders programming the preparation of minutes of proposed consent orders or competing minutes. Those minutes were filed with the court and the court heard oral submissions from the parties in relation to their minutes at a directions hearing held on 15 February 2024. At the conclusion of that directions hearing, the court ordered the parties file further submissions. Having considered the oral and written submissions filed, and for the reasons which follow, the court makes the orders set out in [40] below.

Issues arising

Four matters arise for consideration:
(a)the matters which the orders ought to address;
(b)the appropriate orders to give effect to the Reasons;
(c)the appropriate orders in relation to the costs of the trial and the appeal; and
(d)whether the court should make a suppression order sought by the appellant.

Matters to be addressed by the orders

The appellant filed a minute of proposed orders dated 13 February 2024 and an outline of submissions dated 29 February 2024. The majority of the orders sought in the minute and submissions concern matters that do not arise out of the appeal or are orders that cannot be made by the court in finalising the appeal (such as, orders for compensation for personal injury and defamation). We will not address those matters further.
The only matters that remain to be determined are: orders to give to give effect to the Reasons, orders in relation to the costs of the trial and the appeal and the appellant's application for a suppression order.

Orders to give effect to the Reasons

The first and second respondents filed an updated draft wording of the orders sought in their submissions filed on 16 February 2024. Those draft orders are in the following terms:
a. As to the order of the Honourable Justice Smith made 30 June 2022:
i. Set aside orders 1 and 3 thereof.
ii. Leave orders 2, 4, 5 and 6 remaining in place.
iii. An order that clause 7 m. of the Last Will and Testament of the deceased shall be amended as follows:
x.The figure of $40,000 is deleted and replaced by the figure of $68,702.50.
iv. An order that clause 7 a. [of] the Last Will and Testament of the deceased shall be amended as follows:
1. To add the following words after the semi-colon: "and the sum of $13,700".
v. An order that clause 7 c. of the Last Will and Testament of the deceased shall be amended as follows:
1. To add the following words after the semi-colon: "and the sum of $13,700".
vi. An order that clause 7 d., clause 7 e. and clause 7 f. of the Last Will and Testament of the deceased shall be deleted.
vii. An order that within 5 business days the Probate Registrar of the Supreme Court is to certify a copy of this order.
viii. An order that within 14 days, the First Respondent is to be summoned by the Probate Registrar of the Supreme Court of Western Australia to attend an appointment in chambers and produce the probate and the will of the deceased.
ix. At the chambers appointment before the Probate Registrar of the Supreme Court of Western Australia, the Probate Registrar is directed to affix the certified copy of the order to the probate of the will of the deceased, and thereafter return the copy of the probate, affixed with the certified copy of the order, to the First Respondent.
x. An order that the appellant's costs of the appeal and the trial, fixed in the sum of $2,860.90 are borne equally by the Second and Third Respondents out of their share of the estate.
The third respondent filed submissions on 22 February 2024, which sought the following orders:
a. As to the orders of the Honourable Justice Smith made 30 June 2022:
i. Set aside orders 1 and 3 thereof.
ii. Leave order 2, 4, 5 and 6 remaining in place.
iii. An order that clause 7 m. of the Last Will and Testament of the Late Mark Adrian McLeod shall be amended as follows:
1. The figure of $40,000 is deleted and replaced by the figure $55,000.
iv.An order that clause 7 d., clause 7 e. and clause 7 f. of the Last Will and Testament of the Late Mark Adrian McLeod shall be deleted.
v.An order that the appellant’s costs of the trial and the appeal, fixed in the sum of $2.860.90 be paid out of the residue of the estate.
In our view, while the orders proposed by the third respondent better reflect the Reasons, we would not make orders in the form proposed by the first and second respondents or the third respondent. This is for two reasons.
First, both sets of draft orders propose that Mr McLeod's will be amended in a number of respects. Having regard to the relevant legislative provisions, orders in that form are, in our view, neither necessary nor appropriate.
The power conferred on the court by s 6(1) of the Act is to make 'such provision as the Court thinks fit … out of the estate of the deceased person'. Section 10, in turn, provides that every provision made by an order shall (subject to the Act) take effect as if it had been made by a codicil to the will of the deceased executed immediately before his or her death (or in the case of intestacy, as a modification of the applicable rules of distribution).
The power conferred on the court by these provisions is not a power to order that the will of the deceased be amended. Rather, it is a power to order that provision be made out of the deceased's estate. Section 10 of the Act provides that such provision is to operate and take effect as if it had been made by a codicil to the will of the deceased. That provision is a deeming provision ensuring that the provision is made in a manner consistent with the requirements of the Wills Act 1970 (WA). It does not alter the deceased's will itself.
Section 14 of the Act is also relevant. That section provides, in s 14(1), that every order in which a provision is made shall specify the part or parts of the estate of the deceased (or where relevant the distributed estate) out of which such provision shall be raised or paid, and prescribe the manner in which that shall occur. In the absence of an order, s 14(2) provides that subject to s 14(3) (which relates to the persons successively entitled to property) the burden of any provision made by the court shall, as between the persons beneficially entitled to the estate, be borne by those persons in proportion to the value of their respective interests in the estate. In accordance with s 14, therefore, if the court proposes that the burden of the provision should be borne by the beneficiaries in a manner otherwise than that provided for in s 14(2) and (3) of the Act, then the order of the court must specify how that should occur.
In that context, s 14(4) of the Act provides that in every case in which an order is made, the court shall direct that a certified copy of the order be made upon the probate of the will or the letters of administration, and for that purpose may require the production of the probate or letters of administration.
Nothing in the above should be taken to mean that, in a particular case, orders could not specify that the particular provision is to take effect as if the will had been amended in a particular way, if that is the most appropriate way to frame the orders. However, such an order is, consistent with the Act, not an order that the will is in fact amended.
Secondly, and in any event, the orders proposed by the first and second respondents do not reflect either Mr McLeod's will or the Reasons.
The relevant clauses of Mr McLeod's will are cl 7 to cl 10. Clause 7 makes provision for a number of specific gifts. Some of these are for personal items such as watches, leather goods and fountain pens, which are not relevant for present purposes. Four specific cash gifts are made as follows:
d. I leave to Patricia Tickel of Woodvale, Western Australia, if they shall survive me, for their own use absolutely, the following: A sum of $5000;
e.I leave to Cat Haven of Shenton Park, Western Australia, with the Australian Business Number: 35968264862, for their own use absolutely, the following: A sum of $5000;
f.I leave to RSPCA AUSTRALIA of Deakin West, Australian Capital Territory, with the Australian Business Number; 99668654249, for their own use absolutely, the following: A sum of $5000;
…
m.I leave to Nicolina Keremestevski of Osborne Park, Western Australia, if they shall survive me, for their own use absolutely, the following: A sum of $40,000.
Clause 8 to cl 10 concern the distribution of residue of Mr McLeod's estate and provide that the residue should be divided between the appellant and the second and third respondents in equal 33.33 shares.
In the Reasons, the court concluded that the specific monetary gifts of $5,000 to each of the RSPCA, the Cat Haven and Ms Tickel should be set aside and instead be paid to the appellant. The court did not make any findings regarding the second and third respondents' share of the residue of Mr McLeod's estate.
In order to give effect to the Reasons, it is therefore appropriate that the orders specify the extent of the provision made by the court and that the burden of the increased provision to the appellant shall be met from the provision that was made for RSPCA, the Cat Haven and Ms Tickel, which provision should in turn be set aside. It is not appropriate to make orders that attempt to quantify the amount the appellant and the second and third respondents would receive out of the residue of the estate or to order that specific monetary provision be made for the second and third respondents. To do so would be to alter the nature of the disposition left in the will to the second and third respondents (and in part the appellant) and, indeed, misunderstands the nature of a residue clause in a will. While the Reasons referred to the sum that each party could expect to receive from Mr McLeod's estate as a consequence of our conclusion, those references were for illustrative purposes and were necessarily subject to the final orders in the appeal.

Costs orders

Section 14(6) of the Act provides that the court may make such order as to the costs of any proceeding under the Act as it deems just. That provision confers a broad discretion that is to be exercised judicially.
The learned trial judge made two costs orders. The first (order 2) dealt with the costs of the executor and ordered that the executor's costs be paid from the estate of Mr McLeod on an indemnity basis, fixed at the sum of $3,500. There is no reason to disturb that order. It is, in the ordinary course, appropriate that an executor's costs be reimbursed from the estate. There is nothing to suggest that such an order should not have been made in this case. The executor does not seek an order for costs in the appeal.
The second (order 3) was that the appellant pay the second respondent's costs fixed at the sum of $4,950. The appellant did not pay those costs. Given that the appellant has been successful on appeal, it is appropriate to set aside that costs order.
The appellant also seeks her costs of the trial and the appeal. As the appellant was self‑represented, both at trial and on appeal, the only costs which in our view are appropriate to be awarded are the court fees and disbursements incurred by the appellant. At the hearing on 15 February 2024, the court informed the appellant of the various court fees recorded on the court system for both the trial and the appeal. The total of those costs was $2,868.90, comprised of $2,189.90 incurred in respect of the trial and $679.00 incurred in the appeal.

The appellant was given the opportunity to review her records and to file and serve her own list of court fees incurred in the trial and on appeal. The appellant filed a list of court fees which corresponds with the court's record in relation to the trial costs, but contains additional costs in relation to the appeal costs. The appellant says that she has paid the following court fees in the appeal:

Department of Justice - CTG PA Perth 14/07/2022

$279.00

Department of Justice - CTG PA Perth 09/09/2022

$100.00

Department of Justice - CTG PA Perth 15/09/2022

$100.00

Department of Justice - CTG PA Perth 07/11/2022

$100.00

Department of Justice - CTG PA Perth 09/11/2022

$100.00

Department of Justice - CTG PA Perth 01/12/2022

$100.00

Department of Justice - CTG PA Perth 09/03/2023

$100.00

Total

$879.00

There is a difference of $200 between the court's record and the appellant's record. The court's record indicates that the appellant was refunded the fees paid on 9 September 2022 and 15 September 2022 (as each fee related to an application which was not accepted for filing by the registry). Accordingly, the court is satisfied that the amount of court fees paid by the appellant in the appeal is $679.00.
The appellant's list of court fees also notes that she paid her lawyers the sum of $6,950. When the originating summons was filed (on 27 May 2020), the appellant was represented by lawyers. However, by 5 February 2021 (prior to the filing of the majority of the affidavits for the trial and prior to the trial itself), the appellant was acting for herself and has since that time represented herself both in the General Division and in the Court of Appeal. The court does not have any information regarding how the figure of $6,950 is comprised and whether those costs are reasonable. Given this background, and the small amount of Mr McLeod's estate, we do not consider it is just that there should be any order in relation to these costs.
The court will therefore order that the appellant be awarded costs to reflect the court fees and disbursements that she incurred both at the trial and on appeal fixed in the sum of $2,868.90. It is also appropriate that those costs be borne by the second and third respondents as each actively participated in the trial and the appeal in opposing the appellant's claim. We would not, however, make a personal costs order against either the second or third respondent. Rather, in all the circumstances, it is appropriate that the appellant's fixed costs be paid out of the second and third respondent's share of the estate (and not the appellant's share).
On 21 October 2022, Mitchell JA and Murphy JA made orders that the time for the appellant to file and serve the appellant's case be extended to 4.00 pm on 4 November 2022. Mitchell JA and Murphy JA also ordered that the appellant pay the respondent's costs fixed in the sum of $495. The appellant says that as she is successful in the appeal, she should not have to pay this costs order. The second respondent says that the order should stand. In our view, there is no basis upon which this court can, or should, set aside that order. The costs order will continue to stand.

Suppression order

The appellant seeks two different orders.
First, the appellant seeks an order varying order 5 of the orders of Smith J. By way of explanation, at the conclusion of the trial, Smith J made the following relevant orders:
4.The affidavits filed in the proceedings contain information that is confidential and inflammatory.
5.Pursuant to Order 67B of the Rules of the Supreme Court 1971 (WA), unless leave of a judge is obtained, access to the affidavits, including the edited affidavits, tendered into evidence at trial be restricted to all persons except the court and the parties to the proceedings.
6.Any application for access to any information in the affidavits be referred to a judge and will be decided on notice to the plaintiff and the defendants.
The appellant seeks an amendment to order 5 to enable her to use the affidavits for purposes other than the litigation, being to refer the matters contained in those documents to other appropriate authorities.
It is not clear to the court that any such amendment is required. The appellant is one of the persons who, in accordance with Smith J's orders, is already able to access the affidavits tendered into evidence at trial. There is no limitation specified in the orders of Smith J as to what a party can do with those affidavits. It may be that what the applicant is seeking is a release from the obligation known as the Harman obligation,[102] not to use documents obtained under compulsion in the course of litigation for any purpose other than the litigation. Either way, these are not matters which this court can resolve in finalising this appeal. They are matters which would require a separate application to the General Division.
[102] Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Secondly, the appellant seeks a suppression order in relation to the Reasons and 'all information relating to this case' (with an exception for the appellant). The basis of the appellant's application is that she does not want her name to be tainted further or her privacy breached further. The appellant submitted that she had been humiliated by the decision of the learned trial Judge (Primary Decision) and that her name could be searched on the internet and the Primary Decision discovered on a third‑party site.[103]
[103] ts 15 February 24, 70, 79.
The respondents oppose the application for the suppression order. The respondents submit that the Reasons are instructive and serve a public policy function being to educate lawyers and litigants in relation to the operation of the Act and the standard of appellate review.
An essential feature the Australian judicial system is that the courts sit in, and are open to, the public. A corollary of the principle of open justice is that at common law, absent any limitation or restriction imposed by an order of the court, anyone (including the media) may publish a fair and accurate report of proceedings in open court. While a superior court may, in the exercise of its inherent jurisdiction, make orders that limit or restrict the application of the open court or open justice principle, and the correlative entitlement to publish a fair and accurate report, this jurisdiction may be exercised only where it is reasonably necessary for the proper administration of justice.[104]
[104] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] - [21], [85] - [91]; HES v The State of Western Australia [2022] WASCA 151 (S) [22] - [24], [44].
As Steytler J observed in Reynolds v Panten [No 1][105]:
While the courts will always do what they can, within the limits of their function, to protect private rights and interests (cf John Fairfax Group v Local Court of NSW, supra, ibid and Kelson v Forward (1995) 60 FCR 39 at 43), it will be a rare case in which it can safely be said that a private interest, or even some competing public interest, is such as to override the public interest in knowing what has taken place in a court. As was said by Kirby P in John Fairfax Group v Local Court of NSW, supra, at 142 - 143:
'It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ...'
[105] Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215 [79]; McJannett v Daley [No 2] [2012] WASC 386 (S) [5].
In the present case, the trial was conducted in public. Aside from the orders restricting access to affidavits, there was no suppression order at first instance in relation to the publication of the appellant's name, or the Primary Decision, and no limitation or restriction upon any publishing of a fair and accurate report of the trial proceedings. The Primary Decision was, and is, available on the court's website. The appeal was also conducted in public and the Reasons available on the court's website.
We do not consider that the matters raised by the appellant in support of her application for a suppression order outweigh the ordinary application of the principles of open justice. While the trial and appeal may have been distressing for the appellant, the proceedings have at all times been conducted in public, and it is in the public interest that the reasons of the court be published. It is also in the public interest that the reasons be published so that the matters which fell for determination, including the test for a de facto relationship and the relevant standard of appellate review are available to members of the legal profession and the public at large.

Conclusion

The court therefore makes the following orders:
(1)The appeal is allowed.
(2)Orders 1 and 3 of the orders of Hon Justice Smith made on 30 June 2022 are set aside.
(3)Provision be made for the proper maintenance, support and advancement in life of the appellant from the estate of the deceased by way of an increase in the specific gift to the appellant from $40,000 to $55,000. The burden of that increase in the specific gift shall be made from the provisions that were made in Mr McLeod's will for Ms Patricia Tickel, the Cat Haven of Shenton Park and the RSPCA Australia, which are set aside for that purpose.
(4)A certified copy of this order be made upon the probate of the deceased's will and within 7 days of the date of this order the first respondent do produce the grant of probate to the court for that purpose.
(5)The appellant's costs of the trial and the appeal, fixed in the sum of $2,860.90, are to be borne equally by the second and third respondents and are to be paid out of the second and third respondents' share of the estate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AA
Associate to the Honourable Justice Seaward

26 MARCH 2024

Department of Justice - CTG PA Perth 14/07/2022	$279.00
Department of Justice - CTG PA Perth 09/09/2022	$100.00
Department of Justice - CTG PA Perth 15/09/2022	$100.00
Department of Justice - CTG PA Perth 07/11/2022	$100.00
Department of Justice - CTG PA Perth 09/11/2022	$100.00
Department of Justice - CTG PA Perth 01/12/2022	$100.00
Department of Justice - CTG PA Perth 09/03/2023	$100.00
Total	$879.00