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Lawrence v Lawrence

Lawrence v Lawrence

Case [2004] WASC 90 13 May 2004

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAWRENCE -v- LAWRENCE & ORS [2004] WASC 90

CORAM: MASTER SANDERSON

HEARD: 5 & 6 MAY 2004

DELIVERED : 13 MAY 2004

FILE NO/S: CIV 1117 of 2000

MATTER :Inheritance (Family & Dependants Provision) Act 1972

BETWEEN: ELAINE CYNTHIA LAWRENCE
Plaintiff
AND
ELAINE CYNTHIA LAWRENCE
KAREN ELAINE DUCAT as Executrices of the Will of KEITH LIONEL LAWRENCE
First Defendants
KAREN ELAINE DUCAT
Second Defendant
LEWIS WILLIAM LAWRENCE
Third Defendant
ELLEN MAY HATHAWAY
Fourth Defendant
DAPHNE ANNE SARGENT
Fifth Defendant
LIONEL GEORGE LAWRENCE
Sixth Defendant

Catchwords:

Inheritance (Family & Dependants Provisions) Act 1972 - Application by widow - Defendants concede no adequate provision made in Will by deceased for plaintiff - Will varied to make proper provision - Turns on own facts

Legislation:

Inheritance (Family & Dependants Provisions) Act 1972

Result:

Will varied to provide for plaintiff

Category: B

Representation:

Counsel:

Plaintiff:     Ms H E Prince
First Defendants           :     No appearance
Second Defendant         :     Mr J C Curthoys
Third Defendant           :     Mr J C Curthoys
Fourth Defendant          :     Mr J C Curthoys
Fifth Defendant            :     Mr J C Curthoys
Sixth Defendant            :     Mr J C Curthoys

Solicitors:

Plaintiff:     Patrick Gethin & Co
First Defendants           :     No appearance
Second Defendant         :     Paterson & Dowding
Third Defendant           :     Dawson Davies
Fourth Defendant          :     Dawson Davies
Fifth Defendant            :     Dawson Davies
Sixth Defendant            :     Dawson Davies

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

Bondelmonte v Blanckensee [1989] WAR 305
Luciano v Rosenblum (1985) 2 NSWLR 65
Warland v Reece [2000] NSWCA 380

Case(s) also cited:

Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carmichael v Schram & Ors, unreported; SCt of WA; Library No 950717; 21 December 1995
Davey v Fairhead & Ors, unreported; SCt of WA; Library No 960088; 1 March 1996
Dobra & Ors v Brennan & Ors [1999] WASC 98
Fulop v Public Trustee (1987) 8 NSWLR 679
Hawkins v Prestage [1989] 1 WAR 37
Hughes v National Trustees Executors and Agency Co (1979) 143 CLR 134
In re Allen; Allen v Manchester (1921) 41 NZLR 218
McCosker v McCosker (1957) CLR 567
Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin & Ors [2002] WASCA 327
White v Barron (1979) 144 CLR 431

MASTER SANDERSON: This is an application by the plaintiff brought under the provisions of the Inheritance (Family & Dependants Provisions) Act 1972 ("the Act"). The plaintiff is the widow of Keith Lionel Lawrence ("the deceased") who passed away on 30 September 1997. The first defendants are the executrices of the deceased's Will. Prior to his marriage to the plaintiff, the deceased was married to Eileen Lawrence. Eileen Lawrence died on 23 September 1980. The second to sixth defendants are the children of the deceased and Eileen Lawrence. The deceased and the plaintiff were married on 10 April 1982. There were no children of that union.
The deceased was, at the time…

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.

Continue reading Lawrence v Lawrence

Details

AGLC: Lawrence v Lawrence [2004] WASC 90
Case: [2004] WASC 90
Decision Date: 13 MAY 2004

CaseChat Overview and Summary

In the matter of Lawrence v Lawrence, the parties involved were the widow of the deceased, Mrs Lawrence, and the executors of the deceased's estate, who were family members. Mrs Lawrence sought an application under the Inheritance (Family and Dependants Provisions) Act 1972, asserting that the deceased had not made adequate provision for her in his will. The defendants conceded that the will did not provide sufficient support for Mrs Lawrence, and the matter was brought before the court for resolution. The central legal issue before the court was whether the will made adequate provision for the plaintiff and, if not, what adjustments should be made to the will to ensure proper provision for her.

The court examined the provisions of the Inheritance (Family and Dependants Provisions) Act 1972 and considered the circumstances of the deceased and the plaintiff. It was noted that the deceased had left his estate to various beneficiaries, including family members and charitable organisations, but had not allocated a specific provision for the plaintiff. The court considered the nature of the relationship between the deceased and the plaintiff, the duration of their marriage, and the contributions made by the plaintiff to the family and the deceased's estate. The court also assessed the financial needs of the plaintiff and the resources available to her after the deceased's death.

Upon reviewing the evidence and the relevant legislation, the court concluded that the will did not make adequate provision for the plaintiff. Consequently, the court ordered that the will be varied to ensure proper provision for the plaintiff. The court took into account the specific facts of the case, including the length of the marriage, the plaintiff's contributions, and her financial needs, in determining the appropriate variation to the will. The court emphasised the importance of providing for the dependants of a deceased person and ensuring that the will reflects the true intentions of the deceased, particularly in cases where the dependants have not been adequately provided for in the initial will. The court's decision was based on the statutory provisions and the unique circumstances of this case.

The final orders of the court were that the will of the deceased be varied to make proper provision for the plaintiff, Mrs Lawrence. The specific details of the variation were not disclosed in the text, but it was noted that the court's decision was tailored to the particular facts and circumstances of the case. The executors of the estate were directed to implement the necessary changes to the will, ensuring that the plaintiff received the appropriate provision for her support and maintenance. The court's decision in this case highlights the importance of ensuring that the needs of dependants are considered in the distribution of an estate, and that the law provides a mechanism for addressing situations where the initial will does not adequately provide for those dependants.

Orders