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 assistance of a McKenzie friend. Prior to the hearing, the plaintiff had filed a multiplicity of affidavits. She relied on six affidavits, all of which she swore. Only the fifth‑named second defendant filed an affidavit in response.[1]
[1] Affidavit of Bernadette Pragnell, sworn 20 December 2016.
During the course of the hearing, the plaintiff was also granted leave to adduce further evidence. Admission of the additional evidence was not opposed by the second defendants, and was permitted so as to ensure the plaintiff was afforded procedural fairness.

Background

Ms Joan Mary Kilkenny, late of 95 Alcock Street, Maddington (the deceased) died on 8 January 2014 aged 82. The deceased was survived by her seven adult children. For ease, I will refer to them in these reasons by their first names. They are the plaintiff (Susan), the first‑named second defendant (Michael), the second‑named second defendant (Stephen), the third‑named second defendant (Peter), the fourth‑named second defendant (Margaret), the fifth‑named second defendant (Bernadette), and the sixth‑named second defendant (Therese).
As at the date of her death, the deceased was a widow. Mr Michael Sylvester Kilkenny was the father of the seven adult children named above, and he pre‑deceased the deceased.

The estate of Mr Norman Wright

Prior to her death, the deceased had been in a de facto relationship with Mr Norman Alexander Wright until his death on 15 August 2009. Mr Wright and the deceased did not have children together. He was survived by his two adult children, the seventh‑named second defendant (Cameron), and the eighth‑named second defendant (Veronica).
Mr Wright and the deceased owned property located at 95 Alcock Street, Maddington in the State of Western Australia (the Maddington Property), as tenants in common in equal shares.
Mr Wright made his will on 25 February 2006. Mr Wright's will provided that the deceased have a life tenancy in the Maddington Property and that upon her death, the reversion be divided between his two children and the deceased's seven children.
By proceedings known as Supreme Court action CIV 3044 of 2010 (the 2010 Proceedings), Cameron claimed further provision from his father's estate pursuant to the Inheritance (Family and Dependents Provision) Act 1972 (WA) (now the Family Provision Act). The deceased also made a claim for further provision from Mr Wright's estate in the 2010 Proceedings.
The 2010 Proceedings were settled by a deed of settlement, pursuant to which Mr Wright's will was amended and:
(a)the deceased received unencumbered title to Mr Wright's interest in the Maddington Property;
(b)Cameron received the sum of $10,000;
(c)Cameron and the deceased were barred from making any claim for a larger share of Mr Wright's estate; and
(d)certain other releases and indemnities were provided by the parties to these proceedings.[2]
[2] A copy of the settlement deed is annexed to the affidavit of Ms Bernadette Pragnell, sworn 20 December 2016, BAP1.
The deed of settlement was signed by Susan (then, Susan Sullivan) on behalf of the deceased by an Enduring Power of Attorney.[3]

The deceased's will

[3] Recital B of the settlement deed, annexed to the affidavit of Ms Bernadette Pragnell, sworn 20 December 2016, BAP1, page 2.

The deceased made her will on 25 February 2006. Probate of that will was granted on 15 January 2015 to Susan, the executor named under the will.
By her will the deceased gifted her jewellery to be shared equally amongst her four daughters. As to the residue, the deceased directed her executor to pay all of her debts and then give the residue of her estate to
Norman Alexander Wright, for the rest of his natural life, or until he can no longer live at 95 Alcock Street, Maddington, due to his health or his wishes. Then it is my wish that the estate be shared equally nine ways between his two biological children; Cameron + Veronica and my seven biological children: Michael, Stephen, Peter, Susan, Margaret, Bernadette + Therese. Any person or persons to contest this will receives nothing.

The estate

The deceased left an estate which was primary comprised of the Maddington Property. In addition to the Maddington Property, the deceased had some household goods and effects and some cash on deposit.
In support of the application for the grant of probate, Susan prepared a statement pursuant to r 9B(1) of the Non-contentious Probate Rules 1967 (WA) which prescribed a value of $8,957.76 for the total moveable property of the deceased and $399,000 for the total value of the immoveable property of the deceased. As there were no known liabilities, therefore the net value of the estate as at the date of death was estimated to be $407,957.76.
Prior to the hearing, Susan obtained a valuation of the Maddington Property.[4] As at 7 March 2016, the Maddington Property was valued at $440,000.
[4] A copy of the Report and Valuation of the Maddington Property, prepared by certified practicing valuer Chris Szczurowski of Direct Property Valuations and dated 7 March 2016, is annexed to the affidavit of Ms Susan Kilkenny, sworn on 5 April 2016, SK6.
During the course of the hearing and without prior notice to the second defendants, Susan sought to bring to the court's attention a valuation report for the Maddington Property prepared by certified practicing valuers Tristan Vanderlinde AAPI and Chris Hinchliffe AAPI of Herron Todd White, dated 23 March 2017. The report was admitted into evidence unopposed. As at 23 March 2017, the market value range for the Maddington Property was said to be in the order of $330,000 to $370,000. For the purposes of their assessment, the valuers adopted a market value of $350,000, representing the mid‑point of the assessment range. The only evidence before the court which might explain the reduction in value from $440,000 on 7 March 2016 to $350,000 on 23 March 2017 is the comment in the Herron Todd White valuation that 'within this particular locality, the market appears to be continuing to weaken'.[5]
[5] Herran Todd White valuation report, page 4, under the heading 'Market Commentary'.
As to liabilities, debts totalling $45,669.58 were owed by the deceased to some of her children. It appears that Susan, as executor, has repaid on behalf of the estate part of the debts from her own funds. To the extent Susan has done so, she would be entitled to be reimbursed the amounts paid from the estate.
The further legitimate expenses of the estate have not been adequately qualified by Susan, as executor. There may be rates and taxes owed by the estate.
Since commencement of these proceedings a number of significant amounts have been claimed by Susan as being liabilities of the estate.[6] They include household expenses over five years prior to the deceased's death said to be owed to Susan (in an amount in excess of $72,000), wages said to be owed to Susan for the care provided to the deceased (in an amount in excess of $1.6 million), and funeral expenses. As there is no evidence to support these amounts being claimed as proper liabilities of the estate, I have not taken them into account for the purpose of estimating the value of the estate as at the date of hearing. Assuming a value of $350,000 for the Maddington Property, I anticipate the current value of the estate to be about $295,000.

Value of each share to each child

[6] Affidavit of Susan Kilkenny, sworn 5 April 2016 [18], SK1.

If the will remains undisturbed each of the named beneficiaries will receive a little over $32,000 (taking into account the debts totalling $45,669.58 owed by the deceased to some of her children, allowing $15,000 for other legitimate liabilities of the estate, but without taking into account administration expenses or the costs of these proceedings).
Susan is entitled to an equal one‑ninth share of the deceased's estate in accordance with the terms of the deceased's will. However, Susan has acquired Peter's interest in the estate.[7] Susan will therefore be entitled to two‑ninth shares in the deceased's estate in distribution, a little over $64,000.
[7] Affidavit of Susan Patricia Kilkenny, sworn on 5 April 2016, SK4.

General principles applied in Family Provision Act claims

The general principles to be applied in Family Provision Act claims are well known. Pritchard J summarised succinctly the principles to be applied and the two‑step process in Maas v O'Neill as follows:[8]
In order to decide whether the proposed settlement will be for Matthew's benefit, and that all relevant facts have been considered, it is necessary to bear in mind the principles governing applications under the Family Provisions Act. Ms Maas' application under that Act is brought pursuant to s 6(1) which permits an application to be made by certain persons (including, relevantly, a child of the deceased living at the date of his or her death) on the basis that the disposition of the deceased's estate effected by their will was not such as to make adequate provision from the estate for the applicant's proper maintenance, support, education or advancement in life. If the provision is inadequate, the Court has the discretion to make 'such provision as the Court thinks fit out of the estate for that purpose'. It is well established that s 6 thus encompasses a two stage process.
The question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider an applicant's financial position, and his or her 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, and the size of the estate, as at the date of the testator's death. The terms 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provisions Act encompass not only provision for the supply of the necessaries of life, but also extend to provision over and above a mere sufficiency of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life.
In exercising the discretion under s 6(1) of the Family Provisions Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant. The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances. Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it. The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.
Section 6 of the Family Provisions Act confers a wide discretion on the Court at each stage of the two stage analysis. (footnotes omitted)

Principles applicable to claims by adult children

[8] Maas v O'Neill [2013] WASC 379 [16] ‑ [19] (Pritchard J).

The principles to be applied with respect to claims by adult children were conveniently summarised in Wheat v Wisbey[9] and in Braun v Australian Executor Trustees Ltd.[10] Those principles are:[11]
[9] Wheat v Wisbey [2013] NSWSC 537 [128] (Hallen J).
[10] Braun v Australian Executor Trustees Ltd [2014] WASC 210 [11] (Sanderson M).
[11] Wheat v Wisby [128].
(a)The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b)It is impossible to describe in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c)Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58].
(d)If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland (dec'd) [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons: Re Buckland (dec'd) at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].
(e)There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37, per Nicholson J at 45.
(f)The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [179]-[182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164, at [17].
(g)The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd, at 149.
(h)Although some may hold the view that equality between children requires that 'adequate provision' not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court's determination of an applicant's case.
(i)There is no obligation on a parent to equalise distributions made to his or her children so that each child receive benefits on the same scale as the other: Cooper v Dungan at 542.
In assessing the question of whether the deceased's responsibility and moral duty to a claimant has not be discharged, such that the right and freedom of testamentary disposition has been abused, the court may have regard to the seriousness of that allegation by the claimant and the difficulty in assessing the evidence in the inevitable circumstance that the court cannot hear from the deceased, in accordance with the principles expressed in Briginshaw v Briginshaw,[12] and Baxter v Baxter.[13]
[12] Briginshaw v Briginshaw (1938) 60 CLR 336.
[13] Baxter v Baxter [2014] VSC 377 [59].

The proper maintenance and support must be relative to age, sex, condition and mode of life and situation generally. What is adequate must be relative not only to the claimant's needs but to the claimant's own capacity and resources for meeting them.[14]
[14] Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9, 19.
In the context of the first stage jurisdictional test, whether Susan has a need or needs involves economic consideration. Need must be considered in the context of whether Susan can meet those needs from her own resources. Needs is different from want and does not mean demand or desire. The needs of Susan and of the other beneficiaries need to be considered but that is not to say that Susan is to be limited only to the 'bread and butter of life', that the court can consider that the proper maintenance, support, education and advancement in life of an applicant includes a little of the 'cheese or jam' of life as well.[15]
[15] Blore v Lang (1960) 104 CLR 124, 135 (Fullagar & Menzies JJ).

The plaintiff's personal circumstances and evidence to support her claim for increased provision

Susan is a child of the deceased and therefore has standing to bring these proceedings.[16] By these proceedings Susan seeks adequate provision from the estate. In particular, she seeks that the whole of the deceased's estate be vested in her.
[16] Family Provision Act, s 7(1)(a).
Susan was born on 5 February 1960 and at the date of the hearing was 57 years old, was no longer married nor was she in a de facto relationship.
From her evidence, it appears that Susan had a troubled childhood, did not successfully complete her secondary education,[17] and from about 2007, she was employed as a 'permanent casual at Yangebup Family Centre as a carer for children'.[18] In about 2008, she left her employment to care for the deceased. She has not worked since that time.[19] No evidence was provided as to Susan's annual income in the years up to and including 2008.
[17] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [43].
[18] Affidavit of Susan Patricia Kilkenny, sworn 5 April 2016 [10].
[19] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [181] ‑ [182].
The deceased resided in a nursing home from January 2007 to January 2009,[20] when she was removed from the nursing home by Susan. The deceased then lived with Susan and her then husband in their Thornlie home.[21] Sometime after the death of Mr Wright in August 2009, Susan moved the deceased back into the Maddington Property to prevent it from being sold and the proceeds distributed to the beneficiaries of Mr Wright's estate.[22]
[20] Affidavit of Susan Patricia Kilkenny, sworn 14 March 2016 [9], [11].
[21] Affidavit of Susan Patricia Kilkenny, sworn 14 March 2016 [11].
[22] Affidavit of Susan Patricia Kilkenny, sworn 14 March 2016 [12] ‑ [14]; affidavit of Susan Patricia Kilkenny, sworn 25 November 2016 [13].
Sometime after moving into the Maddington Property with the deceased, Susan's marriage failed. The home in Thornlie that she owned with her then husband was sold in March 2013.[23] Sometime prior to the deceased's death in January 2014, Susan received $233,652.42 from the proceeds of sale of the Thornlie property, together with a share of the household contents and personal effects.[24] No evidence was adduced by Susan as to her true financial position as at the date of death of the deceased.
[23] Affidavit of Susan Patricia Kilkenny, sworn 14 March 2016 [15]
[24] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [123] ‑ [124].
In July 2015, Susan swore an affidavit in which she deposed to her 'current' financial position. As at July 2015 (some 20 months after the death of the deceased), Susan had a car worth about $4,000; superannuation worth about $11,000; and about $112,800 in the bank.
During the course of the hearing, Susan gave evidence to the effect that she no longer had $112,800 in the bank. In cross‑examination, Susan explained that she had paid bills and had been on a couple of holidays. She stated:
I had been on a couple of holidays. And, yes, so I have spent my money on what I wanted to do as well because it was my money.
From her evidence, it appears that the holidays included a holiday to Phuket and Singapore in early 2014; a cruise from Rome to the Greek Islands, travel in Europe and Ireland between August and October 2015;[25] and at least two, possibly three overseas holidays in the six months prior to the hearing.
[25] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [103], [110] ‑ [112]
Susan's evidence is that she does not know how hard it will be for her to get a job.[26] There is no evidence of Susan having sought paid employment from 2008 (when she says that she gave up her paid employment to care for the deceased[27]), or after the death of the deceased in January 2014 to the date of hearing.
[26] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [184].
[27] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [182]; affidavit of Susan Patricia Kilkenny, sworn 14 March 2016 [11].
It is Susan's evidence that she left her employment to care for the deceased, and not as a result of ill health. However, she says that she suffered from Carpel Tunnel for a few years from 1991;[28] was diagnosed with Tennis Elbow in 2015;[29] has always suffered from panic attacks;[30] and has already suffered possibly two heart attacks.[31] No medical evidence was lead.
[28] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [185].
[29] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [183].
[30] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [178].
[31] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [174].
Watching Susan give evidence, she struck me as fit and spritely. She has no specific disability for which she obtains ongoing medical treatment which will involve significant cost or curtail her ability to secure paid employment.
As at the date of the hearing, Susan continued to live in the Maddington Property and did not own any land. She did not pay rent while residing with the deceased and has not paid rent since the deceased died in January 2014.
Susan says that from the proceeds of sale of the Thornlie property, she funded some of the deceased's living expenses until the time of her death.[32] I also accept that some of the maintenance costs of the Maddington Property were borne by some of the defendants.[33] The deceased also received a pension and, for at least some years prior to her death, had carers who attended to the deceased three times a day to shower and dress her.[34] I accept that there was an understanding reached between the family members that while Susan continued to care for her mother, she would have at least five weeks a year of holidays and that her siblings would contribute to paying her $1,800 towards a holiday allowance. Susan received a Carer Pension from 16 January 2009 to 15 April 2014, and a New Start Allowance from 16 April 2014 onwards.[35]
[32] Affidavit of Susan Patricia Kilkenny, sworn 5 April 2016 [15].
[33] Affidavit of Ms Bernadette Pragnell, sworn 20 December 2016 [18].
[34] Affidavit of Ms Bernadette Pragnell, sworn 20 December 2016 [14].
[35] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [189], SK3.

The financial and personal circumstances of the second defendants

The question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider, among other things, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty.
In this case, there is a difficulty due to the lack of information provided by the second defendants. There is no evidence of the second defendants' financial positions other than the searches of the certificates of title to properties which are annexed to the affidavit sworn by Susan on 25 November 2016. The searches reveal that the properties owned by the second defendants, other than by Cameron, are subject to mortgages.

Determination

In determining the jurisdictional question, namely, whether the deceased failed to make adequate provision for Susan as at the date of her death, reference should be made to four primary factors:
(a)the size of the estate;
(b)Susan's needs and any moral claim that she has;
(c)the competing claims on the estate; and
(d)the provision made by the deceased for Susan.[36]
[36] Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127, 131 (McLure JA); Maas v O'Neill [17] (Pritchard J).
When doing so the court puts itself in the position of the deceased and considers what ought to have been done in the particular circumstances treating the deceased as a wise and just testator rather than fond and foolish.[37] The jurisdictional question which arises at the first stage is formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death whether the deceased knew them or not, and all material eventualities that might at that date reasonably have been foreseen by the deceased who knew the facts.[38]

Size and nature of the estate

[37] Kennedy v Kennedy [2016] WASC 210 [11].

[38] Kennedy v Kennedy [13].

In this case, the estate is a small one. The deceased left an estate which was primary comprised of the Maddington Property.
When dealing with a small estate there is nothing in the legislation which requires a different approach. The court must still consider all the relevant circumstances.[39]

Need and any moral claim

[39] See In Re Allen (dec); Allen v Manchester [1992] NZLR 218, 221 (Salmon J), cited by Master Sanderson in Stokes v Collins & Lewis [2014] WASC 182 [14].

'Need' is a factor in determining whether 'adequate' provision has been made for the 'proper' maintenance etc of the applicant in all of the circumstances.[40] As to Susan's needs, the following factors weigh in favour of her meeting the jurisdictional threshold.
[40] Collins v McGain [2003] NSWCA 190 [42] (Tobias JA); cited in Eckersley v Graeme Peter Eckersley as Executor of the Estate of the late Gloria Dawn Eckersley (Dec) [2016] WASC 154 [54] (Chaney J).
As at 8 January 2014 (the date of death of the deceased):
(1)Susan was 53 years of age;
(2)she had separated from her husband. She was not in a de facto relationship;
(3)she had not worked for some time, having resigned from her employment in about 2008 to care for the deceased, and received a Carer Pension; and
(4)the home that she had shared with her husband in Thornlie had been sold. She no longer owned a home.
The term 'need' has been used to refer to a claimant's ability to satisfy his or her financial requirements from his or her own resources. In this regard, I note that there is no evidence to suggest that as at 8 January 2014 (or at the date of the hearing) Susan was incapable of working. Indeed, she had left her employment to care for the deceased, and not as a result of ill health. She was employed as a carer of children in 2008 and thereafter engaged in caring for the deceased (albeit not as an employee).
On the evidence available it is difficult to obtain a clear picture of Susan's true financial position when her mother died. However, Susan was not represented during the course of the proceedings and I am not convinced that the imprecise nature of Susan's evidence means that her evidence should not be given any weight at all. As explained above, Susan's evidence was that she had received $233,652.42 from the proceeds of sale of her former home sometime prior to the deceased's death, together with a share of the household contents and personal effects.[41] I find that sometime in the 10 months prior to the deceased's death, Susan received $233,652.42. There is no evidence as to what additional (if any) cash or assets were held by Susan at that time, although it can be reasonably inferred that Susan would have had a similar amount of superannuation as was held by Susan in July 2015.
[41] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [123] ‑ [124].
As at the date of death, Susan was in need of a place to live. Having regard to all of the evidence, I am not satisfied that as at the date of death of the deceased, Susan's need of a place to live was not able to be satisfied from Susan's own resources. While it is Susan's evidence is that she will be homeless if she is not permitted to remain in the Maddington Property, there is no evidence that Susan could not afford to rent, nor that the cash reserves held by Susan as at the date of death of the deceased were inadequate to satisfy her needs - by rental or by the purchase of a modest property.
As to moral claim, it appears that Susan had a close relationship with her mother. She lived with her mother for about five years prior to her death and (with the assistance of others) cared for her. Susan asserts a moral claim to be left a greater distribution of the estate. In this regard, Susan's evidence includes the following:
[M]y Mother and my Father did not provide for me much in the way of a formal education. Nor did they give me much support in life. Rather I supported my mother by Sacrificing My Life and My Home to keep mum Safe in her Home. And as Mum's 24/7 (unpaid) PERSONAL CARER for 5 Years and my contributions to help pay for household bills and maintenance etc allowed mum to stay in her own home until the day she died.[42]
[42] Affidavit of Susan Patricia Kilkenny, sworn 2 July 2015 [188].
There is no doubt that by Susan having taken on the role of carer, the deceased did not have to return to a nursing home. However, from the evidence filed by Susan, it is clear that she moved, with her mother, into the Maddington Property to prevent it from being sold and the proceeds of sale being distributed. There is no evidence that the deceased desired to return to the Maddington Property. Indeed, for some months after leaving the nursing home, the deceased lived with Susan and her then husband in Thornlie. Further, the evidence suggests that as the deceased suffered from Alzheimer's disease and dementia, Susan made all decisions on behalf of her mother pursuant to an Enduring Power of Attorney.

Competing claims on the estate

Susan's evidence is that she took on the role of carer without first consulting with or securing the agreement of her siblings. However, there is nothing in the evidence to suggest that the other children of the deceased did not have a good relationship with their mother. There is no evidence that any of the children were estranged from their mother.
As explained above, the second defendants elected not to file any evidence as to their own financial position, need or otherwise. There is no evidence of the second defendants' financial positions other than the searches of the certificates of title to properties which are annexed to the affidavit sworn by Susan on 25 November 2016. The searches reveal that the properties owned by the second defendants, other than by Cameron, are subject to mortgages.
In Butcher v Craig,[43] the second defendant did not provide any information about her situation. The court noted she did not challenge the distribution from the estate but did not give any indication as to how that lack of information was to feed in to the determination of the jurisdiction question.
[43] Butcher v Craig.
In Kennedy v Kennedy,[44] Master Sanderson observed that there
appears to be no direct authority on the point. Perhaps all that can be said is that there is no evidence of need on the part of the … defendants but nor is there a concession their entitlement under the will ought be adversely effected by any decision.
[44] Kennedy v Kennedy [33].
In determining the jurisdictional question in this case, I have had regard to the fact that there is no evidence of need on the part of the second defendants. I have also had regard to the fact that there is no concession by the second defendants that their entitlement under the will ought to be effected by any decision. In the circumstances of this case, notice and regard of this primary factor does not particularly advance the determination of the jurisdiction question.

The provision made by the deceased for Susan

The deceased made provision for Susan in her will. She was gifted one-ninth of the estate. She was treated equally with her siblings and the children of Mr Wright. Accordingly, the jurisdictional question is whether provision was adequate and proper.
The authorities are clear that the words 'adequate and proper' are always relative and the court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards.[45]
[45] Goodman v Windeyer (1980) 144 CLR 490, 502.
In the end, I am not satisfied the jurisdictional question should be answered in the plaintiff's favour. By acting as she did and caring for the deceased, Susan has a legitimate moral claim on the estate. However, having carefully considered the evidence, I find that she has received in all of the circumstances adequate provision under the deceased's will taking into account her needs and moral claim on the estate and the size of the estate, as at the date of the testator's death.
If the will remains undisturbed each of the named beneficiaries will receive a little over $32,000 (taking into account the debts totalling $45,669.58 owed by the deceased to some of her children, allowing $15,000 for other legitimate liabilities of the estate, but without taking into account administration expenses or the costs of these proceedings). Susan is entitled to an equal one‑ninth share of the deceased's estate in accordance with the terms of the deceased's will. As at the date of death of the deceased, allowing for her entitlement to a one-ninth share of the deceased's residuary estate, she would have had available to her cash reserves of about $265,652.42, together with a modest amount of superannuation.
The application will be dismissed. I will hear the parties as to costs.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KILKENNY -v- KILKENNY [2017] WASC 127 (S)

CORAM: ACTING MASTER STRK

HEARD: ON THE PAPERS

DELIVERED : 20 JUNE 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) - Costs of parties - Application for costs of the represented defendants to be paid by the plaintiff and not paid out of the estate - Quantum of costs

Legislation:

Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

The costs of the first and fifthnamed second defendants be paid out of the estate, fixed in the sum of $22,000

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):

Baur v Sims (As Administrator of the Estate of Jennifer Ballantyne) [2015] WASC 278
Daniels v Hall [No 2] [2014] WASC 272

ACTING MASTER STRK: By an originating summons, the plaintiff sought 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 during the course of the proceedings, nor at the hearing. However, leave had been granted and the plaintiff did appear in person at the hearing with the assistance of a McKenzie friend. As to the position of the second defendants, only the first and fifth‑named second defendants were represented by a legal practitioner. The remainder filed appearances but did not actively participate in the proceedings nor the hearing.
On 8 May 2017, I dismissed the application and informed the parties that I would hear from them as to costs. I suggested that they confer in relation to costs and I was subsequently informed that no agreement was reached. I then directed that any written submissions and affidavits in relation to the question of costs be filed and served and relisted the matter before me on 25 May 2017.
On 23 May 2017, submissions on costs were filed on behalf of the first and fifth‑named second defendants (together the represented defendants), together with the affidavit of Michele Ann Kershaw, sworn on 23 May 2017 in support of the same. It is the represented defendants' position that the plaintiff acted unreasonably in commencing the claim and in continuing the claim following receipt of certain offers of settlement. They now seek that an order be made that their costs in the proceedings should be paid by the plaintiff and that the plaintiff should not have recourse to the estate for the payment of those costs. The represented defendants are not seeking to have their costs paid on an indemnity basis as their costs are less than the costs allowed under Table B of the Supreme Court Scale of Costs 2016.
At the hearing on 25 May 2017, I directed that the represented defendants file and serve their draft bill of costs. I also gave the plaintiff a further opportunity to file and serve any written submissions and affidavits in relation to the question of costs and directed that she do so by 6 June 2017. In light of the size of the estate and so as to avoid further costs being expended, I informed the parties that I would make cost orders on the papers and publish my reasons.
On 29 May 2017, the represented defendants filed and served a draft bill of costs. The total amount of the bill was $41,910. I am informed by their counsel that they press for costs to be fixed in the sum of $22,000.
On 6 June 2017, the plaintiff filed her submissions in relation to costs, together with an affidavit sworn by her in support.
For the reasons set out below, I find that the represented defendants' costs should be paid out of the estate. Further, I have reached the conclusion that I have all the information necessary to fix the costs which should be paid out of the estate and that I should do so, rather than referring these costs for taxation. The represented defendants are entitled to their costs in the sum of $22,000, to be paid by the estate.

General principles

The principles applicable to the award of costs in proceedings under the Family Provision Act were discussed in detail by EM Heenan J in Daniels v Hall [No 2] [2014] WASC 272 [10] ‑ [37]. The court has a broad jurisdiction to make such orders as to the costs of any proceeding under the Family Provision Act as it deems just.[46] Pursuant to Consolidated Practice Direction [9.2.2(3)], any party may apply to the court pursuant to O 66 r 1 or O 1 r 4B of the Rules of the Supreme Court 1971 (WA) at the commencement of proceedings, during the proceedings or at their end to fix or limit the costs of the proceedings so that they reflect the value and importance of the subject‑matter and dispute, the financial position of each party, the value of the estate and the nature of the claims being advanced.
[46] See Family Provision Act s 14(6), and also Rules of the Supreme Court 1971 (WA) O 66.
Pursuant to Consolidated Practice Direction [9.2.2(5)], when making final orders after trial the court will consider whether costs should simply follow the event with the result that an unsuccessful party may be required to pay the costs of the successful party or at least bear his own costs. Further, the costs orders made by the court and the amount of costs payable to or by a party will take into account any unreasonable conduct by that party in the course of the application.
However, as confirmed by Heenan J in Daniels v Hall, the consolidated practice directions of this court contain general guidance to practitioners and litigants about the approaches which may be taken to awarding costs in Family Provision Act proceedings. Their content must always yield to the circumstances of a particular case.[47]
[47] Daniels v Hall [12].
His Honour also cautioned that the general discretion over costs by the court in the context of Family Provision Act proceedings should be carefully determined and exercised rather than merely following, without regard to the particular circumstances, general principles or practices.[48]
[48] Daniels v Hall [21].

Payment of costs out of the estate

In all of the circumstances of this case, it is appropriate that the costs of the represented defendants be met.
The following factors weighed in favour of an order that the plaintiff meet those costs. First, the size of the estate, which is relatively small. Secondly, the effect of an order that the costs be paid from the estate, which is to reduce the entitlement of other beneficiaries to the share of the estate which the testator provided for them. Thirdly, the Calderbank offers made, and fourthly, the plaintiff's approach to the initiation and conduct of the proceedings generally.[49]
[49] The reference to Calderbank offers made is a reference to offers made to the plaintiff, without prejudice except as to costs, at earlier stages of the proceedings, described at [11] and [12] of the represented defendants' submissions filed 23 May 2017; and annexed to the affidavit of Michelle Ann Kershaw sworn 23 May 2017, 'MAK1', and 'MAK2'.
However, in all of the circumstances of this particular case, I am not persuaded that the plaintiff ought to pay those costs. Instead, I find that the represented defendants' costs should be paid out of the estate. In coming to this conclusion, I am particularly influenced by the fact that on the evidence before me, an adverse cost order will have a significant detrimental effect on the financial position of the plaintiff.

The quantum of costs sought

I have formed the view that it is appropriate for me to fix costs, rather than to require the parties to proceed to taxation having regard to the fact that the costs pertain to two individual defendant beneficiaries only; to the fact that the court has before it the information it requires to make an assessment of the quantum of costs which is just in all of those circumstances; and to save the parties any further expense and delay by the need to proceed to a taxation.[50]
[50] Daniels v Hall [27] cited with approval in Baur v Sims (As Administrator of the Estate of Jennifer Ballantyne) [2015] WASC 278 [11] (Pritchard J).
In reaching that conclusion and in fixing the quantum of costs which should be paid, I have been particularly assisted by a draft bill of costs prepared by the solicitors for the represented defendants. I note that the amount sought to be fixed is $22,000, whereas the total costs incurred by the represented defendants is said to be $41,910. In my view, the amount of $22,000 is a reasonable allowance for the represented defendants' costs of these proceedings.

Orders

I make the following order:
1.The Estate do pay the first and fifth‑named second defendants' costs of the action, including any reserved costs, fixed in the sum of $22,000.