BETWEEN: DAVID JOHN NEALE LEMON (as executor of the Estate of the late MICHAEL JOHN MAYNARD WRIGHT)
First Appellant
LEONIE ANGELA MAYNARD BALDOCK
ALEXANDRA ODETTE BURT
VOC GROUP LTD
Second Appellants
AND
OLIVIA JACQUELINE MEAD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
Citation  :MEAD -v- LEMON [2015] WASC 71
File No  :CIV 3076 of 2012

Catchwords:

Succession - Wills - Inheritance - Appeal against a decision granting an application made by the respondent under s 6(1) of the Family Provision Act 1972 (WA) for further and better provision from the testator's estate - Value of the Deceased's estate about $1 billion - Testator made provision for the respondent in an amount of up to $3 million under a clause of his will read with the terms of a discretionary trust deed - The master held that the will did not make adequate provision for the respondent's proper maintenance and support within s 6(1) of the Act - The master ordered provision for the respondent in the sum of $25 million instead of the provision made for her in the clause of the testator's will read with the terms of the discretionary trust deed - Whether the master erred at the first stage of the process required by s 6(1) of the Act in that he failed to determine what the needs of the respondent were and he misconstrued the will - Whether the master's exercise of discretion at the second stage of the process required by s 6(1) of the Act miscarried in that he regarded his discretion as unfettered because of the size of the testator's estate - Proper construction and application of s 6(1) of the Act

Legislation:

Family Provision Act 1972 (WA), s 6, s 7, s 10

Result:

Appeal allowed
Master's orders making provision for the respondent set aside
Subject to conditions (including bringing to account $3 million already received by the respondent pursuant to the master's orders) provision be made for the respondent in the sum of $6,142,000 in substitution for the provision made for the respondent under the Deceased's will

Category: A

Representation:

Counsel:

First Appellant               :     Ms J A Needham SC & Ms A A Gomez
Second Appellants         :     Ms J A Needham SC & Ms A A Gomez
Respondent:     Mr L J Ellison SC & Mr C V Eastwood

Solicitors:

First Appellant               :     Clifford Chance
Second Appellants         :     Clifford Chance
Respondent:     Eastwood Sweeney Law

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Blore v…

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 Lemon v Mead

Details

AGLC: Lemon v Mead [2017] WASCA 215
Case: [2017] WASCA 215
Decision Date: 22 NOVEMBER 2017

CaseChat Overview and Summary

In the case of Lemon v Mead, the appellant, Lemon, challenged a decision by the master under the Family Provision Act 1972 (WA) which granted the respondent, Mead, an order for further and better provision from the estate of the deceased, amounting to approximately $1 billion. The testator had made a provision for the respondent of up to $3 million under a clause in his will, read with the terms of a discretionary trust deed. The master, however, held that this provision was inadequate for the respondent's proper maintenance and support, and ordered an increase to $25 million.

The legal issues that the court needed to address were whether the master erred at the first stage of the process under section 6(1) of the Act by not determining the respondent's needs and misinterpreting the will, and whether the master's exercise of discretion at the second stage of the process was flawed due to the size of the testator's estate.

The court found that the master did not err in his initial determination that the will did not make adequate provision for the respondent's proper maintenance and support. However, the court held that the master's exercise of discretion at the second stage was flawed, as he did not properly apply the statutory guidelines set out in section 6(2) of the Act. The court noted that the master regarded his discretion as unfettered due to the size of the testator's estate, which was not a correct approach to the application of the Act. The court concluded that the master's discretion was not unfettered and that he should have considered the statutory guidelines in making his decision.

The final orders of the court were that the appeal be allowed, the decision of the master be set aside, and the matter be remitted to the master for reconsideration in accordance with the court's reasons. The court did not make any orders as to costs.

Orders