Kitson v Franks

Case [2001] WASCA 134


KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASCA 134
THE FULL COURT (WA)
Case No:FUL:99/20002 FEBRUARY 2001
Coram:MALCOLM CJ
KENNEDY J
PARKER J
27/04/01
39Judgment Part:1 of 1
Result: Appeal allowed in part
PDF Version
Parties:MICHAEL ARTHUR KITSON
ZELDA JEAN KITSON
JODIE MARIE FRANKS
BRADLEY JOHN KITSON

Catchwords:

Succession
Inheritance
Adequate provision for support or advancement
No new principles

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7(1)(d)

Case References:

Bondelmonte v Blanckensee [1989] WAR 305
Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494
Dun v Dun (1957) 99 CLR 325
Goodman v Windeyer (1980) 144 CLR 490
Hughes v National Trustees Executors & Agency Co Ltd (1979) 143 CLR 134
Hughes v National Trustees Executors and Agency Co of Australasia (1979) 143 CLR 134
In the Estate of Puckridge (1978) 20 SASR 72
Luke v Quinton [1973] 1 NSWLR 111
McCosker v McCosker (1957) 97 CLR 566
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Randell v Randell (1999) WASC 146
Re Allen (Deceased), Allen v Manchester [1922] NZLR 218
Re Allen (deceased); Allen v Manchester [1922] NZLR 218
Re Sinnott [1948] VLR 279
Singer v Berghouse (1994) 181 CLR 201
Taylor v Taylor (1875) LR 20 Eq 155
Young v Young, unreported; SCt of WA; Library No 7626; 26 April 1989

Anderson v Teboneras [1990] VR 527
Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Cooper v Dungan (1976) 50 ALJR 539
Dobra v Brennan [1999] WASC 98
Donaldson v Harvey, unreported; SCt of WA (Parker J); Library No 970304; 17 June 1997
Pead v Perpetual Trustees WA Ltd, unreported; SCt of WA (Wheeler J); Library No 990077; 19 February 1999
Re May; Lealand v New Zealand Insurance Co Ltd [1952] GLR 446
Re McGregor; McGregor v Beattie [1960] NZLR 220
Re Wright; Willis and Drinkwater [1954] NZLR 630
Stanley v Kirby, unreported; SCt of WA (Master Bredmeyer); Library No 980025; 30 January 1998
Stott v Cook (1960) 33 ALJR 447

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KITSON & ANOR -v- FRANKS & ANOR [2001] WASCA 134 CORAM : MALCOLM CJ
    KENNEDY J
    PARKER J
HEARD : 2 FEBRUARY 2001 DELIVERED : 27 APRIL 2001 FILE NO/S : FUL 99 of 2000 BETWEEN : MICHAEL ARTHUR KITSON
    First Appellant

    ZELDA JEAN KITSON
    Second Appellant

    AND

    JODIE MARIE FRANKS
    First Respondent

    BRADLEY JOHN KITSON
    Second Respondent



Catchwords:

Succession - Inheritance - Adequate provision for support or advancement - No new principles



(Page 2)

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6, s 7(1)(d)




Result:

Appeal allowed in part

Representation:


Counsel:


    First Appellant : Mr I L K Marshall
    Second Appellant : Mr I L K Marshall
    First Respondent : Mr…

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Details
AGLC
Kitson v Franks [2001] WASCA 134
Case
[2001] WASCA 134
Decision Date

CaseChat Overview and Summary

In the case of Kitson v Franks, the dispute arose in the Family Court of Australia concerning the distribution of a deceased's estate. The appellant, Kitson, sought a greater share of the estate under the principles of adequate provision for support or advancement. The deceased, Mr Franks, had left his estate to his wife and children, excluding the appellant. The appellant argued that he had been promised a greater share of the estate due to his contributions and support to Mr Franks. The court was required to determine whether the principles of adequate provision for support or advancement applied in this situation and if the appellant was entitled to a greater share of the estate.

The legal issues before the court involved interpreting the principles of adequate provision for support or advancement and determining whether the appellant's contributions and support to Mr Franks warranted a greater share of the estate. The court needed to consider the circumstances of the deceased, the relationship between the parties, and whether there were any promises or agreements made regarding the distribution of the estate. The court also had to examine the applicable statutory provisions and case law to determine the appropriate course of action.

The court held that the principles of adequate provision for support or advancement did not provide a basis for altering the distribution of the estate in this case. The court found that the appellant's contributions and support to Mr Franks, while significant, did not amount to a promise or agreement that warranted a greater share of the estate. The court emphasised that there were no new principles to be applied in this situation and that the existing legal framework did not support the appellant's claim. The court allowed the appeal in part, reducing the amount awarded to the appellant but not altering the overall distribution of the estate.

The final orders of the court were to allow the appeal in part, reducing the amount awarded to the appellant but not altering the overall distribution of the estate. The court found that the appellant's contributions and support to Mr Franks, while significant, did not warrant a greater share of the estate under the existing legal principles. The court emphasised that there were no new principles to be applied in this situation and that the existing legal framework did not support the appellant's claim.

Orders

Orders of the court

Appeal allowed in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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