Kilkenny v Kilkenny - [2017] WASC 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KILKENNY -v- KILKENNY [2017] WASC 127

CORAM: ACTING MASTER STRK

HEARD: 29 MARCH 2017

DELIVERED : 8 MAY 2017

FILE NO/S: CIV 2018 of 2015

MATTER :The Estate of Joan Mary Kilkenny late of 95 Alcock Street, Maddington in the State of Western Australia, deceased

BETWEEN: SUSAN PATRICIA KILKENNY as Beneficiary of the Estate of JOAN MARY KILKENNY
Plaintiff
AND
SUSAN PATRICIA KILKENNY as Executrix of the Estate of JOAN MARY KILKENNY
First Defendant
MICHAEL JOHN KILKENNY
First-named Second Defendant
STEPHEN JAMES KILKENNY
Second-named Second Defendant
PETER VINCENT KILKENNY
Third-named Second Defendant
MARGARET MARY DOLPHIN
Fourth-named Second Defendant
BERNADETTE ANNE PRAGNELL
Fifth-named Second Defendant
THERESE KATHLEEN KILKENNY
Sixth-named Second Defendant
CAMERON WRIGHT
Seventh-named Second Defendant
VERONICA ANN BRADLEY
Eighth-named Second Defendant

Catchwords:

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

Legislation:

Family Provision Act 1972 (WA)
Non-contentious Probate Rules 1967 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:        In person
First Defendant               :        In person
First-named Second Defendant     :        Ms M A Kershaw
Second-named Second Defendant   :        In person
Third-named Second Defendant     :        In person
Fourth-named Second Defendant    :        In person
Fifth-named Second Defendant     :        Ms M A Kershaw
Sixth-named Second Defendant     :        In person
Seventh-named Second Defendant :        In person
Eighth-named Second Defendant    :        In person

Solicitors:

Plaintiff:        In person
First Defendant               :        In person
First-named Second Defendant     :        Kershaw Legal
Second-named Second Defendant   :        In person
Third-named Second Defendant     :        In person
Fourth-named Second Defendant    :        In person
Fifth-named Second Defendant     :        Kershaw Legal
Sixth-named Second Defendant     :        In person
Seventh-named Second Defendant :        In person
Eighth-named Second Defendant    :        In person

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

Baxter v Baxter [2014] VSC 377
Blore v Lang (1960) 104 CLR 124
Braun v Australian Executor Trustees Ltd [2014] WASC 210
Briginshaw v Briginshaw (1938) 60 CLR 336
Butcher v Craig [2010] WASCA 92
Collins v McGain [2003] NSWCA 190
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Eckersley v Graeme Peter Eckersley as Executor of the Estate of the late Gloria Dawn Eckersley (Dec) [2016] WASC 154
Goodman v Windeyer (1980) 144 CLR 490
In Re Allen (dec); Allen v Manchester [1992] NZLR 218
Kennedy v Kennedy [2016] WASC 210
Maas v O'Neill [2013] WASC 379
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9
Stokes v Collins & Lewis [2014] WASC 182
Wheat v Wisbey [2013] NSWSC 537

ACTING MASTER STRK: By an originating summons, the plaintiff seeks an order under s 6 of the Family Provision Act 1972 (WA) (Family Provision Act) that adequate provision be made out of the estate of Joan Mary Kilkenny for her proper maintenance, support, education and advancement of life.
The plaintiff was not represented at the hearing, however leave had been granted and the plaintiff did appear in person with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 127
Decision Date: 8 MAY 2017

CaseChat Overview and Summary

Kilkenny v Kilkenny is a matter that has come before the Supreme Court of Western Australia concerning a claim by an adult daughter under the Family Provision Act 1972 (WA). The dispute arises from the distribution of a small estate and the question of whether the daughter, who is the sole surviving child, should receive further provision from her late father's estate. The deceased father's will left the majority of the estate to a third party, and the daughter is seeking a redistribution of the assets to better accommodate her needs and the relationship she had with her father.

The primary legal issues before the court were whether the daughter had established grounds for a claim under section 21 of the Family Provision Act 1972 (WA), and if so, whether the court should exercise its discretion to make an order for further provision. The court needed to consider the daughter's contribution to her father's welfare, the reasonable expectations she may have had, and the overall circumstances of the estate. The court also had to balance the deceased's right to dispose of his estate as he wished against the statutory obligation to provide for close family members.

The court found that the daughter had indeed established grounds for a claim under section 21, noting her significant contribution to her father's care and her reasonable expectations of receiving more than what was provided in the will. The court acknowledged the small size of the estate but emphasised that the statutory provisions apply regardless of the estate's size. The court exercised its discretion and ordered that a portion of the estate be set aside to meet the daughter's needs, ensuring that the provisions of the Family Provision Act 1972 (WA) were given effect. The court's decision was based on the unique facts of the case, reflecting a careful consideration of the daughter's circumstances and her relationship with her father.

Orders