Levingston v Lola May Levingston as Executrix of the Will of Robert Ian Edwin Partridge
[2017] WASC 371
•20 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LEVINGSTON -v- LOLA MAY LEVINGSTON AS EXECUTRIX OF THE WILL OF ROBERT IAN EDWIN PARTRIDGE [2017] WASC 371
CORAM: SMITH AJ
HEARD: 18-20 OCTOBER 2017
DELIVERED : 20 DECEMBER 2017
FILE NO/S: CIV 1818 of 2010
MATTER :Section 6 of the Inheritance (Family & Dependants Provision) Act 1971
and
The Estate of ROBERT IAN EDWIN PARTRIDGE late of 13 Australind Road, Australind, Western Australia, deceased Probate No 1204/09
BETWEEN: LOLA MAY LEVINGSTON
Plaintiff
AND
LOLA MAY LEVINGSTON AS EXECUTRIX OF THE WILL OF ROBERT IAN EDWIN PARTRIDGE
First DefendantRHYS CURJEL PARTRIDGE
Second Defendant
Catchwords:
Succession - Wills - Application made under s 6(1) of the Family Provision Act 1972 (WA) by de facto wife - No provision made in will - Moral claim - No financial need considered
Legislation:
Family Provision Act 1972 (WA), s 6, s 6(1), s 7
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr M J McPhee
First Defendant : Mr A P Hershowitz
Second Defendant : Dr P R MacMillan
Solicitors:
Plaintiff: M J McPhee Barrister & Solicitors
First Defendant : Granich Partners
Second Defendant : Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Devenish v Devenish [2011] WASC 129
Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Lemon v Mead [2017] WASCA 215
Levingston v Levingston [2016] WASC 133
Levingston v Levingston [2017] WASCA 91
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
SMITH AJ:
Introduction
The plaintiff Lola May Levingston applies under s 6 and s 7 of the Family Provision Act 1972 (WA) (the Act) for orders making provision for her out of the estate of her late de facto husband, Robert Ian Edwin Partridge.
In these reasons, I will refer to the late Mr Partridge as 'Ian' as it was the name used by him and the second defendant as 'Rhys'. In doing so, I intend no disrespect.
Ian died on 6 October 2008. By his will made on 29 December 1995, he appointed Mrs Levingston, executrix and left his entire estate to his only son Rhys.
Prior litigation between the plaintiff and second defendant
This is the second tranche of claims made on Ian's estate by Mrs Levingston that she has pursued to hearing.
In an application brought before the Supreme Court in CIV 1817 of 2010 Mrs Levingston claimed:
(a)that a letter signed by her and Ian on 13 April 2005 constituted an agreement by which Ian agreed to leave his estate or his personal estate to her;
(b)in the alternative, that if the letter of 13 April 2005 did not constitute an agreement, Rhys was estopped from denying the existence of such an agreement because, during Ian's lifetime, Ian conducted himself in such a way as to induce Mrs Levingston to assume that he would leave to her his entire estate (apart from a sum of $600,000 in favour of Rhys); and
(c)alternatively, if there was no agreement, the letter of 13 April 2005 gave rise to either a resulting trust or constructive trust over Ian's estate or his personal property, in her favour.
CIV 1817 of 2010 was heard by Tottle J in November 2015. On 29 April 2016 his Honour dismissed Mrs Levingston's action with costs: Levingston v Levingston [2016] WASC 133. Mrs Levingston appealed. The appeal was dismissed: Levingston v Levingston [2017] WASCA 91.
In CIV 1817 of 2010 many factual findings were made by Tottle J which go to the nature and factual background of the relationship between Mrs Levingston and Ian and the testamentary intentions of Ian. In particular, findings were made about what was said by Ian to Mrs Levingston about his testamentary intentions. In this matter, many of the findings of fact made by his Honour in CIV 1817 of 2010 are not in dispute.
Agreed material facts
Ian died on 6 October 2008 when he was 76 years old. Ian and his brother, David Partridge were in a farming partnership together, under the name of WS Partridge and Sons from 1949 until 1983.
In December 1966, Ian married Pamela Curjel. In October 1967 their only child, Rhys, was born. At that time Ian, Pamela and Rhys lived in Western Australia.
In 1969, Ian incorporated Ian Partridge Pty Ltd (IPPL). The share capital of IPPL was divided into 'A' class shares, 'B' class shares and 'C' class shares. There was only one 'A' class share which was issued to Ian on incorporation. Ian held the 'A' class share during his lifetime which conferred on him all the rights and privileges of a governing director. Such rights and privileges ceased upon his death. One 'B' class share was issued to Pamela. This share conferred upon Pamela all of the rights and privileges of a governing director in the event of Ian's death. Pamela, however, predeceased Ian. Ten thousand 'C' class ordinary shares were issued to Rhys.
In 1977, Pamela and Rhys went to live in England. Ian and Pamela later separated. Ian, Pamela and Rhys did not live as a family together after 1977. Ian and Pamela divorced in 1994.
In 1983, Ian retired from the farming partnership with his brother. His brother and his brother's son bought out Ian's interests in the partnership on a contract of sale and paid an annual amount. The annual amount was paid to Ian directly and continued until he died. The final full sum was paid to the estate of Ian in 2014.
Ian was a talented engineer. He had a substantial workshop on his property at 56 Leisure Drive, Australind. The property also has a house. It is on a bush block of about 13 acres with development potential in the centre of Australind.
After retiring from WS Partridge and Sons farming partnership, Ian became involved in a business repairing and hiring out amusement machines. This business was known as Royston Amusements. The business was carried on through a unit trust known as the Royston Unit Trust, which was controlled by Ian. Ian hired out pinball machines, darts and slot machines and other machines of that kind to various venues. Royston stopped trading in 1995.
Mrs Partridge's son, John Levingston, was best friends with Ian's godson. John and Ian's godson often went to Ian's place to play games from the mid‑1980s. Over a period of time Ian Partridge and John became close friends. Sometime after John's father died in January 1993, he asked Ian if he would be interested in assisting him to repair the engine on his father's F100 utility. Ian agreed to do this and John arranged for the utility to be transferred to Ian's workshop at 56 Leisure Drive. Ian and John Levingston worked on the vehicle regularly at night and on weekends. During this period he sometimes stayed at Ian's place for dinner and on occasion Mrs Levingston would visit. Over time, a romantic relationship developed between Mrs Levingston and Ian.
In November 1994, Rhys returned to Australia and moved into Ian's home at 56 Leisure Drive, Australind, where he still lives.
In March 1995, before Ian and Mrs Levingston became romantically involved, Ian asked Mrs Levingston if she would consider being an executrix to his new will. Mrs Levingston agreed. On 29 December 1995, Ian made a new will and appointed Mrs Levingston the executrix. The will left the entire estate to Rhys. Probate of the will was granted to Mrs Levingston as executrix on 4 December 2009.
Over time, Ian spent an increasing amount of time with Mrs Levingston and in or about August 1996 they began living together in Mrs Levingston's house at 13 Australind Road, Australind. (Whilst it is formally admitted that by August 1996 Ian began living with Mrs Levingston at Mrs Levingston's house at 13 Australind Road, Rhys' evidence is that his father moved out gradually over a long period of time so that by 1998 Ian was living permanently with Mrs Levingston.)
In late 1997, Ian sought advice from accountants, RSM Bird Cameron, in relation to the affairs of IPPL.
In February 1998, Ian appointed Mrs Levingston as a director of IPPL.
Mrs Levingston was a pharmacist. She owned a pharmacy in Australind known as the Australind Village Pharmacy. She was seven years younger than Ian. Ian encouraged her to sell the pharmacy so they could spend more time together. She sold her pharmacy in 1999 for $1.4 million.
In December 1998, IPPL purchased 7A Unwin Crescent, Salter Point, Perth. This property was located in the same street and opposite to the home of John Levingston and his wife, Yvonne. Ian had a very close relationship not only with John but with Yvonne. When John and Yvonne had children Ian developed a loving and grandfatherly relationship with the children.
After the purchase of the house at 7A Unwin Crescent, Ian and Mrs Levingston divided their time between her house in Australind and 7A Unwin Crescent. Ian and Mrs Levingston's lifestyle was one of mixing with friends of a similar age group and interests. They went out to dinner or entertained friends at home, or in Perth on a regular basis. They attended concerts together, ballet and opera with friends. Mrs Levingston and Ian attended many family functions with John, Yvonne and Mrs Levingston's grandchildren. They travelled extensively overseas at least twice a year, visiting friends. Between 2003 and 2006 John and Yvonne were living in Sydney. During that period, Ian and Mrs Levingston visited Sydney about once a year and stayed with John and Yvonne at their home.
After the sale of her business and retirement in 1999, Ian and Mrs Levingston discussed what was the best way to increase their income to live on. Ian proposed that they invest their funds together to generate an income for their retirement. As a result of these discussions they invested in Mrs Levingston's family company Levgiles Developments Pty Ltd (Levgiles). In 2001, they invested through Levgiles in the purchase of a shopping centre in Kalamunda.
Mrs Levingston and her family members each held one‑third of the issued shares in Levgiles. The property had potential for redevelopment and adjoined land owned by companies associated with Mrs Levingston's mother. The purchase price was $895,000. With stamp duty and other expenses, the amount required to settle the acquisition was $936,000. Of this sum, Mrs Levingston contributed $500,000 by way of a loan to Levgiles, $200,000 was contributed by way of a loan from IPPL and $100,000 was contributed by way of a loan from the Royston Unit Trust. The balance was provided by Mrs Levingston's mother.
The loans were made on the basis of agreements that they would bear interest at the rate of 6.5% per annum. Levgiles paid monthly interest payments in respect of the loan moneys. The arrangements between Levgiles, IPPL and the Royston Unit Trust were entirely oral. The loans were unsecured.
During the period Ian and Mrs Levingston lived together they did not jointly own any property. They had separate companies and separate accounting requirements. Nor did they operate a joint bank account. Mrs Levingston paid all the outgoings on her home at 13 Australind Road except for Ian's home office expenses of telephone and internet which he paid. Ian paid all outgoings on 7A Unwin Crescent. Each paid for their own medical expenses. Ian paid for travel and entertainment. Each had access to and used each other's credit cards. They jointly paid for food.
Ian and Mrs Levingston had a close and loving relationship. Mrs Levingston did not charge Ian rent. 'It did not enter her mind as he was her husband'. Each had experience in running a business. They were astute and trusted each other completely. They did not document the commercial arrangements they made between them and their entities.
In August 2001, Rhys' mother, Pamela, died. Rhys inherited approximately £662,000 from Pamela.
On 21 March 2005, Ian caused IPPL to loan $263,000 to John's company, Sarum Pty Ltd (Sarum). Sarum was the trustee of a trust for Mrs Levingston's grandchildren but it was also the operating company for John's business. Ian spoke to John and Yvonne separately about making a sizeable contribution to the grandchildren's trust to assist with costs of their education. Ian told John that money that he had advanced to Sarum was eventually to go into the children's trust. Ian told him he did not expect the money to be repaid but he did need to be paid interest. The loan was unsecured and undocumented.
Rhys continued to live at 56 Leisure Drive after his return to Australia in 1994. From early 2001 until 2008 Vicki Scott and her son, Riley, lived with Rhys. Vicki and Rhys, with Ian's consent and encouragement undertook a number of improvements to the house and grounds. Although the close personal relationship between Vicki and Rhys had ended, they remained friends. Ian had told Rhys on a number of occasions that he would not sell 56 Leisure Drive. This assurance was important to Rhys because without it he would not have undertaken the improvements on the property.
Property developers were interested in Ian's property at 56 Leisure Drive. Rhys was frequently approached by real estate agents and others expressing interest in the land. He gave Ian's contact details to those who spoke to him about the land. At some stage Ian became fed up with the number of approaches he received and Rhys stopped giving out Ian's details and instead passed on the agent's details to Ian.
In July 2008 Ian discussed the possibility of selling 56 Leisure Drive with Rhys. Mrs Levingston was present. Ian told Rhys that he was negotiating to sell Leisure Drive for $6 million. Rhys became quite distressed, upset and left the house. However, a sale of 56 Leisure Drive did not eventuate.
Ian passed away unexpectedly on the night of 6 and 7 October 2008.
Assessment of creditability of evidence given by plaintiff and second defendant
Having heard the oral evidence given by Mrs Levingston, I found her evidence about statements made to her by Ian about his testamentary intentions and the assets of IPPL to be unreliable. Consequently, in making findings about Ian's testamentary intentions and his intentions in respect of the assets of IPPL, I have only accepted Mrs Levingston's evidence about matters going to these issues where there is documentary evidence or witness evidence given by other witnesses that directly supports her evidence.
Mrs Levingston as the plaintiff, gave her evidence‑in‑chief in four affidavits. The first was sworn by her on 2 June 2010. Two affidavits were sworn by her on 26 August 2017 and one affidavit was sworn on 3 October 2017. Mrs Levingston was cross‑examined about a limited number of factual matters set out by her in her affidavits. When cross‑examined, she was reluctant to answer many questions and was reluctant to concede many matters. Nor did she properly explain her answers to many questions put to her even when the questions could be answered without a great deal of difficulty.
Mrs Levingston's answers to many questions were often not only convoluted but she attempted to evade answering many questions and often equivocated and contradicted herself.
Mrs Levingston claimed in her pleaded case and in her evidence‑in‑chief in support of her claim of equitable estoppel in CIV 1818 of 2010 that she sold her pharmacy, allowed Ian to live rent free in 13 Australind Road, and invested in the acquisition of the shopping centre with him through Levgiles in reliance of statements made to her, by Ian, that she would inherit all of his assets, including the land at Leisure Drive, except the value of Rhys' shares in IPPL.
Mrs Levingston's claim of equitable estoppel failed on grounds Mrs Levingston failed to prove firstly that Ian made the representations about his testamentary intentions upon which she relies and that she acted to her detriment in reliance on any such assumption [98].
Justice Tottle found Mrs Levingston gave contradictory evidence about these issues in cross‑examination and found that in fact Mrs Levingston had placed no reliance on statements made by Ian prior to making the shopping centre investment or making the decision to retire. Mrs Levingston raised the same claims in her affidavit evidence in this matter [88].
Leaving aside the issue whether Mrs Levingston is estopped by the findings of fact made by Tottle J, the grounds upon which these matters are raised, appear to be, to show not only that the representations were made but to raise an argument that because of these representations she contributed to Ian's financial circumstances by enabling him to receive an income from the loan to Levgiles. Mrs Levingston also claims that if Ian had not made the representations she would not have sold her pharmacy at the age of 60 but would have worked for another five years. By doing so she says she lost an income of average earnings of $104,728 per annum for five years, being a total of $523,640.
Despite Mrs Levingston's claims about these matters in her affidavits, after much equivocation in cross‑examination, Mrs Levingston finally conceded that she had not relied upon any representation made by Ian about his testamentary intentions when:
(a)she made the decision to sell her pharmacy; or
(b)she and Ian decided to invest in the shopping centre through Levgiles.
In Mrs Levingston's affidavit, sworn by her on 26 August 2017, she stated at [51] ‑ [52] about investing in Levgiles to purchase a shopping centre:
I was cautious about going into this transaction, but was encouraged to do so by Ian. Going into the transaction, Ian said to me words to the following substance and effect, namely that 'After selling the business and retiring, we could live together on our joint income that would be created by an investment.' He also said to me several times, as we were discussing the sale of my pharmacy, words to the following substance and effect, namely 'You have no need to worry about investing with me, it is all coming to you in the end anyway.' He further said to me in this regard words to the effect, 'Everything will come to you, including the shares in the company and real estate, including the land at Leisure Drive, except the value of Rhys's shares in Ian Partridge Pty Ltd.' I sold the pharmacy in 1999 and these statements were made to me prior to the sale of that.
When I took steps to actually sell the pharmacy, and then later raised money to go into the investment with Levgiles, I relied on Ian's statement to me, which I never doubted.
When cross‑examined about these statements, Mrs Levingston first said that what she said in her affidavit in [51] and [52] was correct.
Counsel then read to Mrs Levingston passages from the transcript of evidence she gave in CIV 1817 of 2010 on 9 November, 2015. It was put to Mrs Levingston that she had said when giving evidence in November 2015 that she had not relied upon Ian's promises to her about his testamentary intentions when she made the decision to invest in Levgiles Pty Ltd and to sell her pharmacy.
When asked about this evidence, Mrs Levingston said she did not recall it. She then said what she had said when giving evidence in CIV 1817 of 2010 must be correct because that is what she had said. She went on to attempt to explain why her oral evidence in November 2015 differed from what she states in her affidavit made on 26 August 2017. She then said she was confused about 'the timing' which appeared to be confusion by her about the statements of intention she says were made to her by Ian. She read the pages of the transcript in which she made the contradicting statements on a number of occasions. She then said, what she had said in evidence in CIV 1817 of 2010, was not correct (ts 44 ‑ 46).
After a break for lunch, counsel put the question again to Mrs Levingston and in the passage that follows, she contradicted her earlier evidence given in these proceedings again and finally conceded what she had said when giving evidence in November 2015 was correct (ts 51):
MacMILLAN, DR: As far as I call, Mrs Levingston wanted some time to consider the question that was put to her before the long adjournment, your Honour. I'm not sure ‑ ‑ ‑
SMITH AJ: Yes.
MacMILLAN, DR: Mrs Levingston, do you want me to repeat the question, or do you - - -?---What number was it, please?
It wasn't any number, it was a question?---Okay.
The question was, is it your evidence now that when you sold your pharmacy and invested in Levgiles Developments Pty Ltd that you relied on statements by Ian to you that you would inherit his estate?‑‑‑No.
That's not your evidence. So you did not rely on those statements?‑‑‑That's correct.
All right?---At that point.
I'm sorry, what does that mean, 'at that point'?---I'm just saying that.
Well, when you did those things, did you rely on those statements are not?‑‑‑No.
I find the evidence of Rhys to be generally reliable. Unlike Mrs Levingston he was not evasive. He did not shirk from answering questions. He readily conceded matters and when he could not recall, he said so.
Despite stating in his affidavits that his father had made critical comments about John's children, Rhys conceded that he could not comment on the relationship his father had with Mrs Levingston's family and in particular how close his father was to John's children. He also agreed it was fair to say that his father was part of the Levingston family.
Whilst counsel for Mrs Levingston was critical of some matters of evidence given by Rhys, I do not accept these matters are material to the matters relevant to the issues central to the proper disposition of Mrs Levingston's claim.
Rhys has not had an easy adult life. In 1994, in India, Rhys was held hostage by Al Qaeda for 32 days. The members of Al Qaeda were Pakistani terrorists. There was a battle to release Rhys between the Indian police and the kidnappers. As a result of being held hostage and being exposed to traumatic events, Rhys developed post‑traumatic stress disorder. After Rhys was released he came to Australia to live with his father.
Rhys was asked to return to India to give evidence against one of the terrorists. Rhys was informed by British intelligence agency MI6 that his life would be in danger should he choose to return to India as the terrorists knew who he was. MI6 advised him to change his name. Rhys did so in 1996 by changing his name to Rhys Curjel. However, Rhys did not return to India as the trial against the terrorist did not proceed.
Counsel for Mrs Levingston argued that the evidence given by Rhys was not without blemish.
In his affidavit sworn on 13 September 2017 Rhys said that he had made a commitment to return to India and he felt compelled to go through with it. Counsel for Mrs Levingston was critical of this evidence as Rhys did not state in his affidavit that he did not return to India. This is a matter however that is not material to the central issue in dispute and that is whether Mrs Levingston has been left without adequate provision for the proper maintenance, support or advancement in life. The determination of this issue does not turn upon an assessment of the creditability of Rhys. In any event, Rhys did not state in his affidavit that he did return to India.
After Rhys returned to Australia he sought psychiatric treatment. He was seen by a psychiatrist, Dr John Kemp. Dr Kemp was asked in March 2000 to prepare a psychiatric report for the Metropolitan Police Service Anti‑Terrorist Branch of New Scotland Yard. In the report, Dr Kemp states that Rhys has had very serious and disabling psychiatric impairments over a period of years including difficulties sustaining employment, that he had almost no social and personal relationships, he suffered from severe depression and has much preoccupation and symptoms associated with post‑traumatic stress disorder.
Counsel for Mrs Levingston argued that there was no suggestion that Rhys' condition of post‑traumatic stress syndrome is still ongoing. The difficulty with this submission is that whilst the medical report of Dr Kemp was prepared some 17 years ago, Dr Kemp states that Rhys has a diagnosis of a 'whole person disability of 40%'. Dr Kemp's report sets out a clear opinion that his prognosis was poor and it is highly likely that his level of psychological and emotional functioning would continue at its present level. Further, that psychiatric or psychological treatment would not likely result in any further improvement of his burden of emotional and psychological symptoms.
Since the preparation of Dr Kemp's report in 2000, it appears Rhys has not been employed and has relied upon investments from his inheritance from his mother as his income.
Counsel was also critical of Rhys' evidence that he stated in his affidavit sworn on 10 October 2017 that he had not filed a recent tax return, when in fact it was the case that he had never filed a tax return in Australia. The difficulty with this submission is that Rhys' evidence is that prior to returning to live in Australia in November 1994, he had filed tax returns in England when he lived and had a business in England.
Ian's intentions regarding the assets of IPPL and his estate
It appears during his lifetime Ian treated the assets of IPPL as if he was the only shareholder of IPPL. It also appears clear he regarded the assets of IPPL as his own to deal with as he wished. To that extent, he treated the company as if the corporate veil had been lifted.
Rhys was aware that he held the majority of shares of IPPL and that his father had a governing director's share which gave him power during his lifetime over the assets of the company. Rhys' evidence which I accept, is that his father told him that after his death he would be in charge of the company and he would be able to 'sort it out'. Ian made it very clear to him that he (Ian) had control of the company and he wanted Rhys to have nothing to do with the company while he was alive but after his death Rhys would have control.
Ian, however, was aware that on his death that the control of the company would pass to Rhys. Yet, it appears he attempted to take steps to avert that by attempting to pass control of IPPL to Mrs Levingston.
It appears that for some time that Ian had been considering winding up IPPL.
It is admitted that, on 3 March 2005 Mrs Levingston and Ian met Mr Meyer, a solicitor. Mrs Levingston had been a client of Mr Meyer for some time but Mr Meyer did not know Ian. In the first meeting, Mr Meyer discussed with Mrs Levingston and Ian their wills and some other business matters. Ian told Mr Meyer that he wanted to give control of IPPL to Mrs Levingston so that she would have absolute control over 7A Unwin Crescent. Ian also told Mr Meyer of the loan to Levgiles and that he wanted the loan to be released on his death. Ian also told Mr Meyer that he would like him to come up with a concept to pass control of IPPL to Mrs Levingston on his death and to deal generally with his other assets. Ian wanted Mrs Levingston to have his personal estate. Ian told Mr Meyer that he would obtain a copy of his existing will and copies of the articles of association of IPPL and send them to Mr Meyer. This meeting took place shortly before Ian caused IPPL to loan $263,000 to John's company, Sarum.
On 13 April 2005 a letter of that date was prepared, signed by Ian and Mrs Levingston and sent to Mr Meyer. Mrs Levingston typed the letter. Those parts of the letter which related to Ian's affairs were dictated by him and those parts which related to Mrs Levingston's affairs were composed by her. The letter stated as follows:
Dear Johnathon
Please find enclosed
1signed leases for Calold WA Pty Ltd
2Letter to state Administrative Tribunal and cheque for $29.00
3.Copy of will L M Levingston,
4Copy of will Robert Ian Edwin Partridege
5Articles of Association for Ian Partridge Pty Ltd
Ian is concerned for the most cost effective way for Lola to have control of the Company on his death.
Is the issuing of another 'B' class share a possibility.
Or to issue the balance of the C class shares to LM Levingston.
Or Issue another class of share similar to aims and objects of the 'B'
Personal estate left to Lola
RE: Lola Levingston
I now have two grandchildren and would like to include them as beneficiaries in the event of Johns death. ? trust or what. (Alana and Liam)
Ian to have full use of 13 Australind Road until death.
In CIV 1817 of 2010, Tottle J found the terms of the letter were not binding and enforceable as an agreement. It was no more than a preliminary letter of instruction to Mr Meyer which did not create legal obligations between Ian and Mrs Levingston [76].
It is also admitted that, at a meeting on 13 September 2005 with Ian and Mrs Levingston, Mr Meyer gave advice to Ian that one way of giving Mrs Levingston control of the assets was to liquidate IPPL but that all the shareholders would need to receive the assets on a winding up. Mr Meyer also told Ian that if IPPL was going to continue as a going concern Rhys' shares would need to be acquired and there might be capital gains tax implications if that occurred. Ian confirmed that he wanted to ensure that Mrs Levingston obtained control and ownership of IPPL on his death and that she should receive his personal estate; that is, the shares in IPPL, its assets, his car, his money and the debts due by Mrs Levingston and companies associated with her to IPPL. Mr Meyer understood that Ian wanted Mrs Levingston to inherit everything other than 56 Leisure Drive and his tools.
By September 2006, Mr Meyer had heard nothing from Ian and Mrs Levingston about the drafting of new wills or the winding up of IPPL. Consequently, on 19 September 2006, Mr Meyer wrote to Mrs Levingston requesting that they contact him and make a time to discuss these matters.
There was a further meeting between Mr Meyer, Ian and Mrs Levingston on 19 December 2006.
In relation to the debt owed to IPPL by Mrs Levingston or companies associated with Mrs Levingston, Ian told Mr Meyer (and Mr Meyer recalls that Ian was only talking of one loan) that his aim was to give Mrs Levingston control of the company so she could control the debt and write it off. Mr Meyer told Ian that there would be duty or tax payable in respect of this transaction. Mr Meyer also told Ian he could undertake a voluntary liquidation but there would be tax implications and stamp duty. Ian did not want to expend money to do so and that was one of the reasons why the matter was deferred. Mr Meyer also told Ian that the company could give the house at Salter Point to Mrs Levingston, but there may be transfer duty. Mr Meyer advised Ian that Rhys as a shareholder in the company would argue about that, as it was the main asset of the company and the gift was a dilution of the company's worth.
Part of the estate of Ian was a sum owing to Ian resulting from the sale of the farming partnership assets to his brother and nephew. Prior to his death, Ian received annual payments. Ian told Mr Meyer that he wanted Mrs Levingston to have use of this money and all other cash and other personal property.
Mr Meyer discussed the issue of Mrs Levingston gaining control of IPPL at a number of meetings with Ian.
In a letter dated 7 February 2007 addressed to the directors of IPPL, Ian and Mrs Levingston from Angela Gaffney an accountant with RSM Bird Cameron, advice was given about methods available to wind up IPPL and the taxation implications of doing so. Attached to the letter was a draft balance sheet of the assets of IPPL as at 30 June 2007 which recorded that the market value of the current assets of IPPL were:
(a)
cash at bank
$132,879
(b)
receivables - Royston Unit Trust
$211,969
(c)
receivables - Levgiles Pty Ltd
$200,000
(d)
receivables - Sarum Pty Ltd
$263,086
(e)
shares at market value
$3,744
(f)
land and improvements
7A Unwin Crescent Salter Point$500,000
(g)
plant and equipment - at cost less depreciation
$8,450
(h)
investment - estate in mines and minerals
50% of C/T 2095/130to be advised
Total Assets
$1,320,128
The balance sheet recorded no current liabilities.
The letter from RSM Bird Cameron contained advice that to voluntary liquidate IPPL:
(a)there would be capital gains tax payable on the Salter Point property of $48,000;
(b)once the estate in mines and minerals market value was estimated then the capital gains tax implications upon disposal of that asset could be ascertained;
(c)there would be approximately $480 capital gains tax payable on the shares; and
(d)the cost of liquidation was estimated to be $18,150.
Annexure A to the letter contained advice that:
(a)Rhys as majority shareholder would receive the bulk of the company assets and that if the distribution was amended, so that either Ian or Mrs Levingston received more assets than they were entitled to, stamp duty would arise at land rates; and
(b)otherwise if distributed in accordance with the shareholders' entitlements that there would be no stamp duty payable.
The letter also recorded that Rhys had 10,000 shares in the company and Ian and Mrs Levingston 1 share each. Consequently, the matters set out in the letter made it clear following a winding up of IPPL, Rhys would receive over $1.3 million and Ian and Mrs Levingston would receive $130 each. Yet at some stage Ian formed the view that Rhys' shares in IPPL were worth $600,000. Why he did so and whether he formed this view after he received the letter from RSM Bird Cameron is not clear.
On 23 May 2007, Ian as chairman of IPPL issued minutes of a meeting of the board of directors which record that:
(a)he and Mrs Levingston were present;
(b)it was resolved to appoint Mrs Levingston as an alternate governing director; and
(c)Ian had transferred 'C' class share No 2 to Mrs Levingston.
Sometime between 2007 and 2008 Ian spoke to Mr Meyer and told him he had 'fixed the problem'. His resolution was that his advisors had told him to issue a 'B' class share. Yet it appears that Ian had not issued a 'B' class share to Mrs Levingston. He had issued her with a 'C' class share. Mr Meyer does not appear to have been told this. In any event, Mr Meyer told him the issue of a 'B' class share 'would not work'. Mr Meyer explained to Ian the only way it would work was to deal with Rhys or to liquidate the company.
Mr Meyer also told Ian that he could try to create a situation which would be to give Mrs Levingston an interest in another property which could be dealt with. In particular, he told Ian that he could give Mrs Levingston an interest in the Leisure Drive property so that she had a negotiating point with Rhys which could then give Mrs Levingston some leverage in dealing with Rhys in relation to IPPL.
Ian told Mr Meyer that if Mrs Levingston received the house at Salters Point, he would leave his house at Leisure Drive to Rhys. He also told Mr Meyer that in the divorce with Rhys' mother provision for Rhys had been made out of his mother's estate.
Ian asked Mr Meyer what would happen if he gave Mrs Levingston a small interest in the house at 56 Leisure Drive and Mr Meyer told him he would have to give Mrs Levingston over 50% of the house otherwise Rhys would have control and he could do what he liked. Ian told Mr Meyer that Rhys was 'unreasonable and dishonourable' or words to that effect.
Ian also told Mr Meyer that Rhys is not a person who could be trusted. Mr Meyer said that Ian considered whether he would sell the property at 56 Leisure Drive and give some proceeds to Mrs Levingston or transfer the property to Rhys and Mrs Levingston. It seems Ian gave no final instructions to Mr Meyer as to his testamentary intentions. Mr Meyer's evidence was however that it was clear that Ian did not waive from his intention to give Mrs Levingston via the company, the house at Salter Point, all debts to the company owed by Mrs Levingston and to her family and other personal assets.
Ian made no mention to Rhys about the transfer of a share in IPPL to Mrs Levingston. Ian had mentioned loans to him but he was not specific about how much they were or what they were for. On 5 April 2008, his father visited him at the workshop at Leisure Drive while he was working on renovating the existing kitchen units. Ian was in a very bad mood and after a while he told him that Mrs Levingston wanted him to liquidate the company and that if he did so he would have to buy him (Rhys) out of his shares. Rhys asked Ian what they would be worth and Ian told him over $1 million. Rhys says that Ian went on to say that things were in a bit of a mess, vaguely mentioning outstanding debts that he could nothing about but said that when he was in charge of the company he could sort them out. At that time, Rhys assumed that Ian was talking about money that his brother owed him. After his father's funeral, Rhys found out that there were debts owed by Levgiles and Sarum to IPPL.
Shortly after Ian died, Mrs Levingston purported to hold a meeting of the directors of IPPL on 21 October 2008. At that time Mrs Levingston owned one 'C' share in the company and resolved to approve the transfer of Ian's 'A' class share to her. However, Mrs Levingston's attempts to take control of IPPL and its assets were unsuccessful. Rhys took control of IPPL and made demands that the loans owed by Levgiles and Sarum be repaid. As a result of the demands, the loans were repaid and Rhys sold 7A Unwin Crescent for $780,000. IPPL was subsequently wound up by Rhys.
Ian's estate
Ian's estate at the time of his death was valued by Mrs Levingston in her affidavit sworn on 2 June 2010 to be $5,630,663.35 which stated the value of 56 Leisure Drive, as $4,500,000 and moveable property of $1,130,663.35. In a subsequent affidavit sworn by her as the executrix on 29 November 2010, Mrs Levingston stated that she had obtained an independent sworn valuation of 56 Leisure Drive and that the valuer had valued the property at 56 Leisure Drive at $1,250,000. Consequently, at the date of Ian's death the value of his estate was $2,380,663.35, less debts of $20,998 which was a net value of $2,359,665.35.
Prior to the hearing of this matter, a second independent valuer was engaged to value the property at 56 Leisure Drive. As at 29 August 2017, Mr Aaron Hughes a certified practising valuer valued the property at $1,400,000. In a statement of current assets and liabilities prepared by the estate's accountant, annexed to an affidavit sworn on 29 September 2017 by Mrs Levingston as executrix, the moveable property of the estate is valued at $1,171,864 with debts of $12,972, being a total value of the assets of the estate (including 56 Leisure Drive) of $2,558,892.
Character of the deceased and Rhys' relationship with Ian
It is clear from the evidence of Mr Meyer that Ian was very slow to make decisions about matters involving his company and his financial affairs.
It also appears that Ian from time to time lost his temper.
John said that he often witnessed loud voices being exchanged between Rhys and his father in the workshop at 56 Leisure Drive. He also described Ian's relationship with Liam who is John's son. He said that Liam called him 'grumps' with love and affection and that he observed Liam with Ian in Ian's workshop and while Ian would 'puff and puff' there was a close relationship between Ian and his son.
John said that Ian had a fiery temper but at the end of the day he known him for a long period of time. He had put up with 'it' since he was 19 years old and Ian had been a valuable part of his (John's) family.
In Mrs Levingston's affidavit sworn on 26 August 2017 she said that prior to 1999, Ian would often come home from visits to Rhys and the workshop at Leisure Drive, in an upset state. By this she said she meant he was angry, speaking to her in an agitated way and he spoke about Rhys in the context of what Rhys had done with his tools of the workshop. Rhys rarely visited the Australind Road property.
Rhys said it was a bit of a 'running joke' between him and his father that when his father turned up at 56 Leisure Drive it usually meant he had had an argument with Mrs Levingston. His father visited him regularly, sometimes he would visit for days in a row and sometimes it was every week or every couple of weeks. However, occasionally a month could pass without his father visiting. Rhys conceded that it is true that his father left the workshop at Leisure Drive on many occasions in a bad mood but said his father also arrived on many occasions in an equally bad mood.
Rhys said that his father had a huge and generous heart and had always been there for him whenever he needed him. He was a utilitarian and practical man. His social skills were not necessarily the most polished and his short and fiery temper was legendary although thankfully also invariably transient. Ian was a meticulous perfectionist and when it came to engineering and mechanics he was widely regarded as nothing short of a genius by his peers. This reputation earned him the nickname of 'Prof'.
Mrs Levingston claims that the relationship between Ian and Rhys was poor.
A number of witnesses who provided evidence by sworn affidavit in support of Mrs Levingston recounted conversations they had had with Ian, in which Ian made negative comments about Rhys.
The affidavits of these witnesses were tendered without objection and the witnesses were not required to attend court for cross‑examination. One of these witnesses is a friend of Mrs Levingston, Mrs Karen Mills. She spoke to Ian some time well before he died about his will when he sitting at his desk in his study at Mrs Levingston's house in Australind. He told her he was changing his will and she saw him make marks on a document. Ian told her that 'I will be damned if my no hoper of a son gets the money and wastes it like he wasted his mother's money'. He also told her he was disappointed in Rhys and that he had to organise the affairs of the company.
Ian, in any event, did not alter the gifts made to Rhys in his will. The grant of probate of the last will and testament of Ian annexed a copy of Ian's will has marks upon it which purport to strike out parts of the will. The dispositions which appear to be struck out are not dispositions made to Rhys. Whether these marks on the will were marks made by him at all or were marks made by him when he spoke to Karen Mills is not known.
Whilst I accept that Ian made disparaging comments from time to time about Rhys' character not only to Mr Meyer but to some of his friends, it is clear that Ian did not intend that Rhys should not inherit at all. Mr Meyer's evidence establishes that Ian intended that Rhys should inherit 56 Leisure Drive and his tools. It also appears Ian may have contemplated selling 56 Leisure Drive (at what appears to be an unrealistic price) as a means to enable Mrs Levingston to negotiate with Rhys about the assets of IPPL.
Rhys' financial circumstances
Rhys has lived at Ian's house at 56 Leisure Drive for a period of 23 years. The only real property he owns is rural farming land that currently has no power, water or other amenities. He purchased the land for $900,000 in 2010. It is a block of land east of Bunbury that he has been developing slowly. His plan is to turn the property into a hobby farm.
As at 23 December 2010, Rhys estimated he had funds of $1,232,845.55 in investments in the United Kingdom from his mother's inheritance, $6,865.84 in an Australian bank account, $402.03 in superannuation and $24,500 in personal property. He also had 10,000 shares in IPPL and debts of $1,061,399.60.
As at 13 September 2017, the total value of Rhys' assets including the farmland was $1,777,676. His income for the financial year of 2017 was $22,527. This income was derived from dividends from a United Kingdom share portfolio he inherited from his mother. The value of that share portfolio he assesses as $844,861. He also has $41,300 in United Kingdom bank accounts and $14,066 in an Australian bank account. Rhys' annual expenses exceeds his income by approximately $14,192. Consequently he draws funds from his bank account from time to time. Rhys has had to draw on funds to pay substantial legal costs incurred in litigation with Mrs Levingston.
From 1994 onwards Rhys had a number of short poorly paying jobs for short periods of time and had only been able to generate a modest income barely sufficient to cover his living expenses. The situation changed after his mother's death in 2001when he received an inheritance. Since his father's death Rhys was able to pay out a loan he had on the farmland by the sale of 7A Unwin Crescent and calling in the loans owed to IPPL. It appears that Rhys has not been in paid employment since at least 2001.
Given, Rhys' psychiatric impairment, I accept that there does not appear to be a realistic prospect that Rhys will resume employment in the future.
Rhys uses the workshop on the property at 56 Leisure Drive. It is well appointed and capable of undertaking any job from welding, machining and electronics to woodwork composites and spray painting. He spends a considerable portion of his time in the workshop as his father once did, tinkering, designing and fabricating. For Rhys to recreate and re‑equip an equivalent workshop would be expensive. Rhys has also invested considerable time, money and effort into the house and garden.
Mrs Levingston's financial circumstances
Taxation estimates for the year ending June 2016 show that Mrs Levingston's taxable income for the 2016 financial year was $154,853 and her average taxable income from the financial years of 2012 to 2016 was $131,560 (exhibit 5).
It is conceded on behalf of Mrs Levingston that at the time of the death of Ian and at the time of the hearing of this application, Mrs Levingston has the financial means to be able to comfortably support herself for the remainder of her life.
Mrs Levingston's financial circumstances at the time of Ian's death is set out by her in her affidavit sworn on 2 June 2010. In this affidavit she stated that her total value of assets as at the time of Ian's death was $6,075,300. However, in arriving at that amount she deducted a loan of $258,000. This was the amount that Sarum (her son's company) had owed to IPPL which she repaid after Ian's death. When it was pointed out to her in cross‑examination that the loan was in fact an asset, as it is money owed to her by Sarum, she reluctantly conceded that the total value of her assets as at June 2010 was in fact $6,591,300.
In an affidavit sworn on 26 August 2017, Mrs Levingston states that the total value of her assets as of that date is $4,547,351. However, after some debate in cross‑examination she conceded that she had deducted an amount of $558,000 in error and that the total value of her estate as at August 2017 is $5,105,351. The amount that she sought to deduct is an amount of $458,000 of which $258,000 was the amount she loaned to Sarum to pay the debt owed to IPPL and the remaining $200,000 is an amount she paid on behalf of Levgiles which was paid to IPPL in satisfaction of the debt Levgiles owed to IPPL.
When asked why the value of her assets had decreased over the last seven years Mrs Levingston said that she had spent $500,000 on legal costs and that she has not received a great deal of income in recent times from the Lola May Levingston Family Trust as the property from which income was derived has been demolished.
Ian's testamentary intentions
It is argued on behalf of Mrs Levingston that immediately prior to his death, Ian was labouring under a misapprehension, or mistake, that he had already effectively given to Mrs Levingston the assets of IPPL by issuing her with a substituted governing director's share which would enable her to have control over the property at 7A Unwin Crescent, Salter Point and write off the debts to Levgiles and Sarum, leaving Rhys with assets to the value of $600,000 in IPPL.
The evidence of Mr Meyer and the letter to Ian and Mrs Levingston as directors of IPPL dated 30 June 2007 from RSM Bird Cameron, do not support a finding of such a mistake. To the contrary, it would have been patently clear to Ian as an experienced businessman from the advice contained in that letter and from the advice given to him by Mr Meyer that on his death Mrs Levingston would not hold a governing director's share and Rhys would remain the majority shareholder and be entitled to the assets of IPPL (less 1 share) on the winding up of IPPL.
In any event, importantly, the assets of IPPL were not and do not form part of the assets of the estate. The evidence of Mr Meyer establishes that at some time between 2006 and 2008 Ian was considering whether to sell 56 Leisure Drive and give some of the proceeds to Mrs Levingston, or to transfer the property to Mrs Levingston and Rhys, to give Mrs Levingston bargaining power with Rhys in relation to the assets of IPPL. However, Ian did not do so.
Mrs Levingston argues that Ian would have arranged his affairs with IPPL and made a new will to implement his testamentary intentions if he had not died suddenly. The difficulty with this contention is that Ian had been considering these matters for a period of almost three years prior to his death and at no time did he take any steps to or give instructions to Mr Meyer to draft a new will.
When regard is had to the evidence of Mr Meyer, it is apparent that Ian intended to leave Mrs Levingston a substantial part of his assets. However, none of the IPPL assets were assets of the estate. Mrs Levingston argues that Ian intended to leave her all of his estate together with all of the assets of IPPL (except $600,000 being Ian's perceived share of Rhys' entitlements to the assets of IPPL) and this is reflected in the letter that she and Ian signed on 13 April 2005 by the use of the words that Mrs Levingston was to have his 'personal estate'.
However, this contention is not supported by Mr Meyer's evidence. To the contrary, it is clear from Mr Meyer's evidence that Ian intended that on his death Mrs Levingston was to receive the assets of IPPL and his personal assets. The intention to give Mrs Levingston his 'personal estate' cannot be construed as an intention to give to her his real property (that was part of the estate) as Mr Meyer's evidence is that Ian intended that Rhys should have 56 Leisure Drive.
It is notable that at the time of Ian's death the moveable property of the estate was valued at $1,130,663.35 including an amount of $475,685.73 which is described as a loan to WS Partridge & Son (the former farming partnership). The amount of $1,130,663.35 exceeded the value of 7A Unwin Crescent ($500,000) and the value of the loan IPPL made to Levgiles ($200,000) (as valued in the draft balance sheet of IPPL prepared by RSM Bird Cameron as at 30 June 2007).
Whilst Ian could have devised by will part or the whole of his moveable property to Mrs Levingston without having to deal with the impediments associated with winding up IPPL, he did not do so.
Should any provision be made for Mrs Levingston out of Ian's estate?
In determining a claim made pursuant to s 6(1) of the Act the court is required to undertake a two‑stage process. The first stage is described as the 'jurisdictional' question as it requires the determination of the court's power to make an order. This stage requires the court to consider whether the disposition of the estate by the deceased has left the claimant at the date of death of the deceased without adequate provision for the proper maintenance, support, education or advancement in life: Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56] (Gummow & Hayne JJ); Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209 (Mason CJ, Deane & McHugh JJ).
Notwithstanding this question involves the exercise of value judgments it requires a determination of fact: Devereaux‑Warnes v Hall [No 3] [2007] WASCA 235 [68] (Buss JA). It does not involve an exercise of discretion.
The second stage only arises if the jurisdictional question is determined in favour of the claimant. The court is conferred with a discretion to order that such provision as the court thinks fit be made out of the deceased's estate for the proper maintenance etc of the claimant: Devereaux‑Warnes v Hall [No 3] [69] (Buss JA).
What constitutes 'adequate' and 'proper' provision is relative. In Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, Dixon CJ at 19 pointed out:
The 'proper' maintenance and support of a son claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is 'adequate' must be relative not only to his needs but to his own capacity and resources for meeting them. There is then a relation to be considered between these matters on the one hand, and on the other, the nature, extent and character of the estate and the other demands upon it, and also what the testator regarded as superior claims or preferable dispositions. The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning.
Maintenance, support and advancement require an assessment of a standard of living and anticipated future needs of a claimant. Justice Pritchard in Devenish v Devenish [2011] WASC 129 explained [70]:
The term 'maintenance' in s 6(1) of the Act refers to a provision for the supply of the necessaries of life, although it also extends to provision over and above a mere sufficiency of means upon which to live: Vigolo v Bostin [115] (Callinan & Heydon JJ), cf Kitson v Franks [44] (Parker J). It may also imply a continuity of a pre-existing state of affairs: Vigolo v Bostin [115] (Callinan & Heydon JJ). 'Support', too, may imply provision beyond bare need: Vigolo v Bostin [115] (Callinan & Heydon JJ). In contrast, provision to secure or promote 'advancement' will ordinarily be provision beyond the necessities of life, and may extend to a provision which would enable a potential beneficiary to improve his or her prospects in life: Vigolo v Bostin [115] (Callinan & Heydon JJ). (citations omitted)
The criteria for assessment of these elements is well established.
A determination of whether the provision, if any, made for a claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased: Devereaux‑Warnes v Hall [No 3] [74] (Buss JA).
The totality of that relationship includes: any sacrifices made or services given by the claimant to or for the benefit of the deceased; any contributions by the claimant to building up the deceased's estate; and the conduct of the claimant towards the deceased and of the deceased towards the claimant: Devereaux‑Warnes v Hall [No 3] [75] (Buss JA).
Sacrifices, services or contributions which are claimed to give rise to a moral duty or moral claim, are matters that are relevant to the totality of the relationship between the claimant and the deceased, but are neither a necessary nor a sufficient condition for the making of an order under the Family Provision Act: Devereaux‑Warnes v Hall [No 3] [76] (Buss JA). In applying this principle, Buss JA referred to the observations made in Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24, 28 (Kirby P) 42 (Sheller JA).
In Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, Murphy J observed that whilst many cases suggest that an applicant must show a moral claim as well (as being left without adequate provision) this gloss on the Act is unwarranted and inconsistent with the language and with the legislative scheme (159). In Permanent Trustee Co Ltd v Fraser Sheller JA referred to this passage of Murphy J in Hughes. At 41 ‑ 42, Sheller JA then went on to say:
In Goodman v Windeyer (1980) 144 CLR 490 at 497, the dictum from the judgment of Salmond J in Re Allen was again quoted with approval by Gibbs J with whose reasons for judgment Stephen J and Mason J agreed. In that case Murphy J dissented. At 504-505, his Honour in the second passage referred to by the majority in Singer v Berghouse said:
'This is another case in which the question of whether an applicant was left without adequate provision is confused by the introduction of considerations of moral duty. In Re Bodman [1972] Qd R 281 at 284 Hoare J said:
"Unless the applicant can show that he or she was, at the relevant time, in 'need' of proper provision from the estate then the Court has no jurisdiction to make an order even though it considers that there was a clear failure of a moral obligation on the part of the testator."
The reference to lack of jurisdiction is inappropriate but the principle stated is correct. Unless an applicant is left without adequate provision, he or she is not entitled to an order, even if the circumstances disclose a breach of moral obligation. I adhere to what I said in Hughes v National (Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 157-160.'
The point made in the judgments to which Murphy J referred was that the existence of a moral obligation owed by the deceased to the claimant was a necessary part of the claimant's case but not alone sufficient to justify an order in the claimant's favour. Thus in theory an order would not be made out of the estate of a deceased parent in favour of a child who had over many years completely cut himself or herself off from the parent, even though the child was left in need. On the other hand a wealthy child who had cared for the parent throughout his or her life may have no claim for further provision under the legislation. In Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 477-478, their Lordships cited with approval the following passage from the judgment of Stout CJ in In Re Allardice; Allardice v Allardice (1910) 29 NZLR 959, a decision of the New Zealand Court of Appeal (at 970):
'The whole circumstances have to be considered. Even in many cases where the Court comes to a decision that the will is most unjust from a moral point of view, that is not enough to make the Court alter the testator's disposition of his property. The first inquiry in every case must be what is the need of maintenance and support; and the second, what property has the testator left.'
The courts, in giving effect to the legislative scheme, have accepted that bare moral claims of the sort mentioned by Stout CJ will not alone suffice to empower the court to make an order.
In the judgment of Kirby P in Permanent Trustee Co Ltd v Fraser at (29 ‑ 30) his Honour referred to observations made by V Grainer in a published submission to the Law Commission of New Zealand, 'Is Family Protection a Question of Moral Duty?' (1994) 24 Victorian University Wellington Law Review 141 in which Ms Grainer said (147 ‑ 148):
The court is required to establish the content of the duties of 'a just but not a loving' testator [Allardice, 973]. This formulation denies that love plays any part in the creation of this duty. Instead the duty is characterised as being based on justice. Testators can be forced to act justly but not lovingly.
In Vigolo, the plaintiff, an adult son of substantial means, failed to establish that he had a moral claim against his father's estate arising from work done by him and promises made to him in the course of working in the family farming enterprise. The majority (Gleeson CJ, Callinan & Heydon JJ) in Vigolo endorsed the moral duty approach that it is a testator's moral duty to provide appropriately for his or her dependents, that is as a wise and just testator or testatrix. Chief Justice Gleeson said that family provision legislation [12] ‑ [15]:
[W]as not merely, or even primarily, concerned with relieving the state of the financial burden of supporting indigent widows and children. The courts were not empowered merely to make such provision for an applicant as would rescue the applicant from destitution. The legislative power was to make 'proper' provision. Judicial explanation of what was meant by proper provision was based upon the idea of a moral obligation arising from a familial relationship. That is one of the fundamental ideas upon which the structure of our society is based.
Similarly, when courts came to address the discretionary question of making fit provision, they had to consider the interests of those upon whom the burden of an order might fall. In making decisions, courts have had regard to competing claims upon a testator (or, later, a person who died intestate). It would now be regarded as self-evident that a court would be readier to disturb a testamentary provision in favour of a beneficiary, such as a charity, with whom a testator had no connection than a provision in favour of dependent relatives. Why is this so? The answer, again, lies in concepts of moral obligation.
This Court has also relied upon a dominant legislative purpose of enforcing moral duties as a reason for refusing to give effect to an attempt to contract out of making an application.
Perhaps the most frequently cited statement of basic principle underlying this legislation is that of Salmond J in In re Allen; Allen v Manchester:
'The provision which the Court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of all the relevant circumstances' [12] ‑ [15]. (footnotes omitted)
Notwithstanding these observations about a 'moral duty', the majority in Vigolo did not endorse an approach that a claimant will be left without adequate provision if that person has substantial and independent means for his or her maintenance and advancement in life and their claim is made solely on grounds of disappointed expectations raised by statements of intention by a testator or testatrix. Yet, this is precisely the case put forward on behalf of Mrs Levingston.
Mrs Levingston concedes that she has no need of Ian's assets and whether she inherited any part of Ian's assets is not important to her.
In CIV 1817 of 2010 Tottle J found that it was apparent that Mrs Levingston possessed a deeply held conviction that her understanding of Ian's testamentary wishes should be honoured [85]. It is clear in these proceedings that Mrs Levingston still strongly holds this conviction.
Mrs Levingston claims Ian owed a moral duty to provide for her in the distribution of his estate on grounds that:
(a)she cared for and kept house for him for 12 years;
(b)she drove him to all his medical appointments;
(c) for a period of time when he was 'cash poor' (whilst he was waiting until his properties were sold to the government by his brother and when he was in litigation with the State government over the resumption of land) she employed him to work in her pharmacy and paid him wages of about $8,000; and
(d)he promised her he would leave his estate to her.
Despite these contributions, Mrs Levingston made no real financial sacrifices for Ian. Mrs Levingston simply provided support to Ian and he to her in a manner that would be expected of a de facto couple in a loving relationship who were financially independent from each other.
Thus, it is clear that Mrs Levingston made no real contribution to building Ian's estate.
Mrs Levingston's claim in this matter is not a claim in estoppel. The fact that she did not rely upon the statements of testamentary intent made by Ian is only relevant to the disposition of Mrs Levingston's claim under s 6(1) of the Act, in so far as it is part of the totality of her relationship between her and Ian.
It is not the role of this court to rewrite a testator's will. Clearly, Mrs Levingston asks this court to do so in accordance with the testamentary intentions Ian stated to her as corroborated by Mr Meyer.
This however is not the test that this court is to apply. If that were the test then it would not be necessary for the court to consider whether as a matter of fact a claimant has been left without adequate provision for his or her proper maintenance, support or advancement in life.
In Lemon v Mead [2017] WASCA 215 Mitchell and Beech JJA made this point very clearly. Although their Honours made the following observations in the context of the second stage of the enquiry, that is after the court is satisfied that a will makes does not make adequate provision for the proper maintenance of a claimant, they said at [268] ‑ [269]:
Section 6(1) empowers the court to make 'such provision as the court thinks fit … for that purpose'. That purpose is the purpose referred to earlier in the section, namely the making of adequate provision for the proper maintenance, support, education or advancement in life of the plaintiff. There is no competing alternative. The power to make provision can only be exercised for that purpose; that purpose controls and limits the power.
This feature of the court's power under s 6(1) is fundamental to its proper exercise. It has been recognised in numerous authorities. For example, in Blore v Lang, Fullagar and Menzies JJ observed that the jurisdiction conferred by the Act is to interfere with the testator's dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc, and the extent of the interference authorised is to order such provision as the court thinks fit for that person's proper maintenance. Their Honours went on to emphasise that the amount given to a beneficiary under the will was not to be used as an indicator of what should be given to a claimant; provision for the claimant is based on what the claimant needs for his or her proper maintenance, etc. As Dixon J has observed, the power is 'not a discretion to give more than what is adequate for proper maintenance … '. That is why, in Pontifical Society, Dixon CJ emphasised that the words 'proper maintenance and support', while they must be treated as elastic, cannot be pressed beyond their fair meaning. Adam J correctly observed in Re Buckland that those words 'place a ceiling upon what the court may properly do'. The court's power and function is to 'decide what is now appropriate so as to ensure for the plaintiff's adequate provision for her proper maintenance and support but no more'. In Devereaux-Warnes v Hall (No 3), Buss JA, with whom Pullin JA agreed, recognised that:
'Freedom of testamentary disposition is a relevant and important consideration. A will should only be disturbed if, and to the extent that, "adequate" provision has not been made for the "proper" maintenance, etc, of the claimant.'
That is to say, a testator's freedom of testamentary disposition is to be interfered with only as far as may be necessary to make adequate provision for the applicant's proper maintenance etc. The court must have regard to the will of the testator and interfere only to the minimum extent necessary to make such adequate provision.
The jurisdictional question which arises at the first stage must be formulated and determined as at the date of the death of the deceased, having regard to all the material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who have been foreseen by a deceased who know the facts: Deveraux‑Warnes v Hall [No 3] [70] (Buss JA).
When regard is had to the fact that Mrs Levingston made no financial contributions to Ian's estate, this court is required to examine whether a wise and just testator at the time of his death who had:
(a)knowledge of Mrs Levingston's capacity and resources to meet her own needs; and
(b)regard to other claims on his estate, namely that of Rhys, (Ian's sole beneficiary of his estate in accordance with the terms of the will);
would come to view that Mrs Levingston had been left without adequate provision for her proper maintenance, support or advancement in life.
It is clear that Mrs Levingston is a woman of advanced years. She was 69 when Ian died. She is now 78. She had at the time of Ian's death (and continues to have) capacity and significant resources to more than meet her own needs which will permit her to live in the style to which she is accustomed.
Rhys is now 50 years old. Whilst the estate is not modest, the circumstances of Rhys are that his financial circumstances were, and are, that his capacity to acquire assets in the future to meet his future needs is limited as his assets are likely to be depleted over time to meet his living expenses.
Because of Rhys' psychiatric impairment he has been unable to work for many years and there does not appear to be a realistic prospect that he will be able to resume employment in the future.
When regard is had to these circumstances, I am not satisfied that Ian, as at the date of his death failed to make adequate provision for Mrs Levingston's proper maintenance, support or advancement in life.
The jurisdictional question having been answered in the negative, it is unnecessary to consider the second stage of the process under s 6(1) of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO HER HONOUR ACTING JUSTICE SMITH18 APRIL 2018
Corrigendum
In [6] the judgment year was incorrectly cited in Levington v Levington WASC 133 as [2017] instead of [2016].
Key Legal Topics
Areas of Law
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Succession Law
Legal Concepts
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Moral Claim
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Adverse Possession
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