Kilkenny v Kilkenny - [2018] WASCA 197

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SUSAN PATRICIA KILKENNY as beneficiary of the estate of JOAN MARY KILKENNY -v- SUSAN PATRICIA KILKENNY as executrix of the estate of JOAN MARY KILKENNY [2018] WASCA 197
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   13 AUGUST 2018
DELIVERED          :   6 NOVEMBER 2018
FILE NO/S:   CACV 62 of 2017
BETWEEN:   SUSAN PATRICIA KILKENNY as beneficiary of the estate of JOAN MARY KILKENNY
Appellant
AND
SUSAN PATRICIA KILKENNY as executrix of the estate of JOAN MARY KILKENNY
First Respondent
MICHAEL JOHN KILKENNY
Second Respondent
STEPHEN JAMES KILKENNY
Third Respondent
PETER VINCENT KILKENNY
Fourth Respondent
MARGARET MARY DOLPHIN
Fifth Respondent
BERNADETTE ANNE PRAGNELL
Sixth Respondent
THERESE KATHLEEN KILKENNY
Seventh Respondent
CAMERON WRIGHT
Eighth Respondent
VERONICA ANN BRADLEY
Ninth Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   ACTING MASTER STRK
Citation: KILKENNY -v- KILKENNY [2017] WASC 127
File Number             :   CIV 2018 of 2015

Catchwords:

Family Provision Act 1972 (WA) - Appeal - Claim by adult daughter for whole of estate - Where estate small - Where claimant had provided care for the deceased - Where other children and stepchildren of deceased had not adduced evidence of financial position - Whether primary court erred in assessing claimant's claim without considering whether an inference should be drawn that they have sufficient resources to meet their own needs - Whether error may be inferred on the basis that the primary decision to dismiss the application is unreasonable or plainly unjust - Turns on own facts

Legislation:

Family Provision Act 1972 (WA), s 6

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr J A Thomson SC & Mr V N Ghosh
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	In Person
Sixth Respondent	:	In Person
Seventh Respondent	:	In Person
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance

Solicitors:

Appellant	:	HFM Legal
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	In Person
Sixth Respondent	:	In Person
Seventh Respondent	:	In Person
Eighth Respondent	:	No appearance
Ninth Respondent	:	No appearance

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

Anderson v Teboneras [1990] VR 527
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Butcher v Craig [2010] WASCA 92
Christie v Manera [2006] WASC 287
Davison v Kempson [2018] VSCA 51
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Golosky v Golosky [1993] NSWCA 111
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kennedy v Kennedy [2016] WASC 210
Kilkenny v Kilkenny [2017] WASC 127
Lemon v Mead [2017] WASCA 215
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Norbis v Norbis [1986] HCA 17;

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.

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Details

Case: [2018] WASCA 197
Decision Date: 6 NOVEMBER 2018

CaseChat Overview and Summary

In the case of Kilkenny v Kilkenny, the claimant, an adult daughter, appealed against the primary court's decision to dismiss her application under the Family Provision Act 1972 (WA). The dispute centred on her entitlement to a portion of her deceased father's estate, which was relatively modest in value. The claimant argued that she had provided care for her father, and that other children and stepchildren had not demonstrated that they had sufficient financial resources to meet their own needs.

The legal issues before the court were whether the primary court erred by assessing the claimant's application without considering whether an inference should be drawn that the other beneficiaries had sufficient resources to meet their own needs. Additionally, the court needed to determine whether any such error could be inferred on the basis that the primary decision to dismiss the application was unreasonable or plainly unjust.

The court found that the primary court had indeed erred by failing to consider whether an inference should be drawn about the financial position of the other beneficiaries. The court held that the primary decision to dismiss the application was unreasonable or plainly unjust. The court, therefore, allowed the appeal and remitted the matter to the primary court for reconsideration of the claimant's application.

The final orders of the court were to allow the appeal and to remit the matter to the primary court for further consideration of the claimant's application under the Family Provision Act 1972 (WA). The court did not make any orders as to costs.

Orders