Lewin v Kimpton
[2013] WASC 204
•30 MAY 2013
LEWIN -v- KIMPTON [2013] WASC 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 204 | |
| Case No: | CIV:1095/2013 | 22 APRIL 2013 | |
| Coram: | MASTER SANDERSON | 30/05/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Effect of residuary clause determined Leave given to bring action out of time | ||
| B | |||
| PDF Version |
| Parties: | LINDA LEWIN DESMA ANN KIMPTON as Executor of the Estate of CHARLES HOWARD LEWIN DESMA ANN KIMPTON TRACEY LOUISE HARLEY AIMEE NICOLE MAYES DESMA ANN KIMPTON as Executor of the Estate of CHARLES HOWARD LEWIN |
Catchwords: | Administration Act Proper interpretation of residuary clause in will Turns on own facts Family Provision Act Application to commence action out of time Turns on own facts |
Legislation: | Nil |
Case References: | Clayton v Aust (1993) 9 WAR 364 Grigoriou v Nitsos [1999] WASCA 42 McBride v Hudson (1962) 107 CLR 604 Perrin v Morgan [1943] AC 399 Re Harrison; Turner v Hellard (1885) 30 Ch D 390 Re Lloyd; Lloyd v Chambers (1894) 38 The Solicitors' Journal 235 Young v Kestel [2003] WASCA 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
The Estate of CHARLES HOWARD LEWIN late of 6 Leschenaultia Place, Pinjarra in the State of Western Australia
- Plaintiff
AND
DESMA ANN KIMPTON as Executor of the Estate of CHARLES HOWARD LEWIN
First Defendant
DESMA ANN KIMPTON
Second Defendant
TRACEY LOUISE HARLEY
Third Defendant
AIMEE NICOLE MAYES
Fourth Defendant
(Page 2)
FILE NO/S : CIV 1186 of 2013 MATTER : Section 6 and s 7 of the Family Provision Act 1972 (WA)
and
The Estate of CHARLES HOWARD LEWIN late of 6 Leschenaultia Place, Pinjarra in the State of Western Australia
- Plaintiff
AND
DESMA ANN KIMPTON as Executor of the Estate of CHARLES HOWARD LEWIN
First Defendant
LINDA LEWIN
Second Defendant
TRACEY LOUISE HARLEY
Third Defendant
AIMEE NICOLE MAYES
Fourth Defendant
Catchwords:
Administration Act - Proper interpretation of residuary clause in will - Turns on own facts
Family Provision Act - Application to commence action out of time - Turns on own facts
(Page 3)
Legislation:
Nil
Result:
Effect of residuary clause determined
Leave given to bring action out of time
Category: B
Representation:
CIV 1095 of 2013
Counsel:
Plaintiff : Mr P R MacMillan & Mr M J BassettScarfe
First Defendant : Dr J J Hockley & Mr A S McNeill
Second Defendant : Dr J J Hockley & Mr A S McNeill
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Peel Legal
First Defendant : North Lake Legal
Second Defendant : North Lake Legal
Third Defendant : No appearance
Fourth Defendant : No appearance
CIV 1186 of 2013
Counsel:
Plaintiff : Dr J J Hockley & Mr A S McNeill
First Defendant : Dr J J Hockley & Mr A S McNeill
Second Defendant : Mr P R MacMillan & Mr M J BassettScarfe
Third Defendant : No appearance
Fourth Defendant : No appearance
(Page 4)
Solicitors:
Plaintiff : North Lake Legal
First Defendant : North Lake Legal
Second Defendant : Peel Legal
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos [1999] WASCA 42
McBride v Hudson (1962) 107 CLR 604
Perrin v Morgan [1943] AC 399
Re Harrison; Turner v Hellard (1885) 30 Ch D 390
Re Lloyd; Lloyd v Chambers (1894) 38 The Solicitors' Journal 235
Young v Kestel [2003] WASCA 190
(Page 5)
1 MASTER SANDERSON: This is the return for two separate but inter-related matters. First in time is CIV 1095 of 2013. In that action the plaintiff seeks a declaration of partial intestacy based upon the will of the deceased. The second defendant opposes that application. If, and only if that application is successful, CIV 1186 of 2013 falls for consideration. In that action, the plaintiff seeks leave to bring out of time, an action under the Family Provision Act 1972. Clearly, the proper course is to deal first with CIV 1095 of 2013.
CIV 1095 of 2013
2 The plaintiff is the wife of Charles Howard Lewin (the deceased) who died 3 May 2011. The deceased and the plaintiff had separated. They were not divorced and did not enter into any matrimonial property settlement. The plaintiff and the deceased had two daughters who are the third and fourth defendants in these proceedings. The first defendant says she was the de facto wife of the deceased. The deceased left a will dated 29 April 2011. Probate of the will was granted on 22 December 2011 to the first defendant. The will provides certain legacies, including 'all other bank accounts to Desma Ann Kimpton'. The will is silent as to the residuary estate.
3 By this action the plaintiff claims the following relief:
(a) a declaration of past intestacy in the Deceased's estate as to employment entitlements or other funds which were not deposited into a bank account held by the Deceased prior to his death together with interest thereon; and
(b) an order those funds be distributed pursuant to the provisions of s 14 of the Administration Act 1903 (WA) to the plaintiff, third and fourth defendants.
4 The first and second defendants resist the plaintiff's claim on the basis that the second defendant is entitled to the funds in all bank accounts.
5 In support of her application, the plaintiff relies on her affidavit sworn 13 December 2012. The first defendant relies on her affidavit sworn 19 March 2013. Neither of these two parties was cross-examined on their affidavit and no objection was taken to any of the evidence.
6 A copy of the will of the deceased is found as annexure DAK 4 to the affidavit of the first defendant sworn 19 March 2013. The will is what
(Page 6)
- is described as a 'home made will'. The clause which causes the difficulty is under the heading 'Residuary Estate'. As it appears in the will it is in the following form (the words in italics are what has been written in):
The residue of my estate to such of the following beneficiary or beneficiaries as survive me and if more than one then in equal shares:
(A) Land and residence at No.6 Leschenaultia Pl, Pinjarra to Linda Lewin
(B) Vacant block of land at Pinjarra Meadows to Desma Ann Kimpton
If all of the above beneficiaries and their incidental beneficiaries predecease me, I give the residue of my estate to such of the following beneficiary or beneficiaries as survive me and if more than one then in equal shares:
(A) Superannuation - 40% to Tracey Louise Harley - 40% to Aimee Nicole Lewin 20% to Linda Lewin
(B) All other bank accounts to Desma Ann Kimpton
8 The deceased died on Tuesday 3 May 2011 at 7.40 pm. Prior to his death the deceased had been employed by Alcoa of Australia. According to Alcoa's records the deceased contacted the Human Resources Department of the company on Saturday 30 April 2011 and terminated his employment. The reason he gave was 'total and permanent disability'. In her affidavit, Ms Kimpton says the deceased was taken violently ill on the morning of Saturday 30 April 2011, an ambulance was called and the records of the emergency department show he was admitted to hospital at 7.46 am in a critical condition. Ms Kimpton says she was with the deceased from the time he was admitted throughout the day and she does not recall him making a phone call to Alcoa. Be that as it may, no evidence was lead to suggest an error on the part of Alcoa nor was it submitted on behalf of Ms Kimpton that any consequences flow from this aspect of her evidence.
9 By letter dated 19 February 2013, Ms Kimpton's solicitors wrote to Alcoa seeking details of the termination payment made to the deceased in an amount of $92,766.63. A copy of that letter is annexure DAK 5 to Ms Kimpton's affidavit. The letter notes the amount was shown as being
(Page 7)
- credited to the deceased's Westpac account on 4 May 2011. In essence, the letter seeks details as to when and how the payment was made.
10 Alcoa responded by email on 22 February 2013. A copy of that email is annexure DAK 6 to Ms Kimpton's affidavit. The email refers to the deceased's resignation on 30 April 2011 and provides details as to how the termination entitlement was calculated. It then goes on as follows:
Alcoa releases funds for terminated employees the next available working day which would explain how the payment was in the bank account on the 3rd May 2011 ie Mr Lewin terminated at 30 April 2011 (Friday) and the funds were sent to the bank via EFT on Monday 2 May 2011. It would take the bank 1-2 days to process the funds and have them available in the bank account.
11 The author of the email made an error. 30 April 2011 was Saturday not a Friday. It may well be that the deceased had contacted Alcoa on 29 April and resigned. Apart from anything else, it is difficult to imagine the human resources division of the company being open on a Saturday. In any event, not much turns on this discrepancy. On 26 February 2013, Ms Kimpton's solicitors received a further email from Alcoa. Relevantly it reads:
I would like to correct my email below and confirm that we processed Mr Lewin's termination on 3rd May 2011 and the funds were remitted on 4th May 2011.
12 When confronted with this further email from Alcoa, Ms Kimpton's solicitors wrote to Westpac Banking Corporation seeking clarification of the exact time Westpac received the funds from Alcoa. That letter was written on 19 February 2013. No response was received. All that is available is a copy of the 'rocket deposit account transaction details' which appears as part of annexure LL 2 to the affidavit of the plaintiff sworn 13 December 2012. The deposit of the termination payment is shown as being on 4 May 2011.
13 Counsel for Ms Kimpton put the issues to be determined in this way:
(a) was the deceased's termination payment from his employer, Alcoa, paid into his account before his death; and
(b) if the money was paid into his account after the date of his death, then did this money pass as residue to Desma Ann Kimpton or was there a partial intestacy in regard to that amount.
(Page 8)
14 With respect, I would frame the second question slightly differently. I would frame the question in these terms.
15 'If the money was paid into his account after the date of his death then did the will operate so the funds passed to Desma Ann Kimpton or was there a partial intestacy in regard to that amount.'
16 The difficulty in answering the first question is the paucity of evidence. It is not clear how Alcoa actually went about making payment of the termination entitlement. What can be said it was most probably done electronically but that does not take the matter very far. The uncontradicted evidence is Alcoa processed the payment on 3 May 2011. Westpac's records show a deposit on 4 May 2011. It is reasonable to assume that Alcoa processed the payment during working hours on 3 May 2011. That means it must have been done before 5.00 pm on that day. It may well be if the relevant bank statement held by Alcoa was produced, it would show the company's account was debited on 3 May 2011. But that is speculation; just as it is speculation as to the actual process by which the transfer took place.
17 There appears to be only one authority which bears upon this issue and it is well over 100 years old. But, it does perhaps give a guide as to how questions such as this should be determined. The decision is Re Lloyd; Lloyd v Chambers (1894) 38 The Solicitors' Journal 235. The report is brief and I will quote it in full:
A will contained the following provision and specific bequest - viz, 'I desire to be buried in the Highgate Cemetery; the expenses of the funeral, the costs of the grave and tombstone, with a simple inscription of the day of my birth and the date of my death thereon, to be provided out of my current account with the Agra Bank, 35 Nicholas-lane, or any other bank in England at which I may have a current account at the time of my death, and if there be any of such current account still left after my funeral expenses and expenses of my grave and tombstone have been met then I leave and bequeath in equal shares such remainder sum to my nephews, A Lloyd and E Lloyd'. The testator died on the 1st of October, 1892, having at the time a current account at the Agra Bank, but at no other bank in England. He had, however, a floating account at the Indian branch of the Agra Bank, and pursuant to his directions the Indian branch on the 21st of September, 1892, sent a letter of advice to the head office, Nicholas-lane, directing them to credit the testator with a sum of £936 4s, received by the branch for him in India. This letter, which was in transit on the 1st of October, was received by the head office on the 10th of October, and the amount credited on the 11th of October to the testator's account, though the bank knew of his death. The specific legatees took out a summons, claiming to be entitled to this sum, contending that constructively or by
(Page 9)
- operation of law it became part of the current account at the English branch directly the letter of advice was posted. The letter of advice assumed that there were funds in the head office to meet the advice. A debt of course had no locality in itself, but took the locality of the debtor, here, the head office: Attorney General v Pratt (22 WR 615, LR 9 Ex 140) (vide especially judgement of Pigott B). Cases of transmission of specie or of chattels, as in Lord Brooke v Earl Warwick (2 De G & SM 425), were different. Here the actual debt was transmitted instantaneously, and the branch office freed from liability be acting on the testator's instructions, though doubtless the testator could not have drawn on the amount until the advice, ie, the evidence of the debt, was received, the debt itself being debitum in presenti when the advice was posted but solvendum in future when the advice was received and the amount credited.
Chitty J said he could see no difficulty in ascertaining the meaning of the bequest. In his opinion it was a bequest of the balance standing to the credit of the testator's account at the time of his death, subject to certain payments thereout. The £936 4s was not credited at the time of the testator's death. The fact that the bank would not have been bound to honour a cheque drawn on this account on the 1st of October was a fair test. A bequest of this kind was no doubt dangerous, because it depended on the state of things at the time of the death. This, however, was the testator's intention. The current account was ipso facto closed at the time of the death, and money received after that period, though the testator's in transit, ought to go the credit of his executors. Money paid in by a stranger to the testator's account after his death would not pass. If the testator had sent £50 in gold by a servant to the bank and died before it was paid in, that money would not pass. So a bequest of money in a desk would not pass money in a servant's hands on the way to be placed in the desk. His lordship was aware that money standing to the credit of a current account was only a debt, but here the testator had only given the debt due at his death, which did not include the £936 4s.
18 Of course this decision speaks from another age. But the reference to funds being 'in transit' as at the date of the death of the deceased is important. That is one way to view this case. The funds may well have come out of Alcoa's account but did not actually materialise in the deceased's account until 4 May 2011. Another way to test that proposition is this. If the deceased had access to electronic banking could he, prior to 7.40 am on 3 May 2011, have accessed his account and made a disposition of all or part of the termination payment. The answer I think is that he could not have done so.
19 In the end there is nothing to be gained by speculation. The state of the evidence is such I could not conclude other than the termination payment was made on 4 May 2011 after the death of the deceased.
(Page 10)
20 That then leads on to the question of whether or not the termination payment is properly to pass to Ms Kimpton or whether there is a partial intestacy. Section 26 of the Wills Act is in the following terms:
(1) Unless the contrary intention appears by the will -
(a) the will is to be construed, with reference to the property comprised in it, to speak and take effect as if it has been executed immediately before the death of the testator.
The fundamental rule in construing the language of a will is to put on the words used the meaning which, having regard to the terms of the will, the testator intended. The question is not, of course, what the testator meant to do when he made his will, but what the written words he uses mean in a particular case - what are the 'expressed intentions' of the testator.
22 A section such as s 26 of the Wills Act has had a long history. Some of this history and the difficulties that can arise in applying the section were touched upon by Dixon CJ in McBride v Hudson (1962) 107 CLR 604.
23 His Honour said:
A fee simple acquired after the date of a will could not be carried by a devise contained in the will. But s 24 of the Wills Act, 1837, forming one of the provisions directed primarily at the reform of the law relating to disposition of realty by will, was expressed in terms governing both devises of realty and bequests of personalty. Section 24 of the Wills Act, 1837, which is reproduced in s 27 of the South Australian Wills Act, 1936, in an attempt to bring real property and personal property under an identical rule in this respect, uses language which seems to require an artificial recourse to the death of the testator as the point of time at which the provisions of the will are to be construed. The section provides that every will shall be construed with reference to the real and personal estate comprised in it to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. If an instrument is literally and in all relevant respects construed as if it were written at a subsequent date, perhaps a date far removed from actual contemporary circumstances, it needs no argument to show that a strange and artificial meaning may be produced (614 - 615) (my underlining).
24 Two points should be made regarding the proper interpretation of the deceased's will. First, if a contrary intention to the effect the will would not speak as at the date of death of the deceased is to be found, it must be
(Page 11)
- found in the will. It is not possible to look at what the deceased said to third parties in an attempt to show some contrary intention. Second, if the words or phrases are clear and unambiguous affect must be given to them irrespective of the result: Re Harrison; Turner v Hellard (1885) 30 Ch D 390. In my view there is nothing in this will which shows any contrary intention. If the wording of the will had included a reference to amounts paid into the deceased's accounts before or after his death the position obviously would have been different. But, there is nothing in the will which could lead to a conclusion any funds deposited in the account after the date of the death would pass to Ms Kimpton.
25 Nor is it possible to torture the language of the will to have it encompass the termination payment. The will is brief - particularly with respect to the disposition of the bank accounts. But it is not unclear or ambiguous.
26 In my view there has been a partial intestacy in this matter and the plaintiff is entitled to an order accordingly.
CIV 1186 of 2013
27 The only question for determination on this application is whether an extension of time ought be granted to make an application under the Family Provision Act 1972. The principles which govern such applications were not in dispute and can conveniently be summarised by reference to the decision in Clayton v Aust (1993) 9 WAR 364. The six matters outlined are first, the discretion is unfettered. Second, the onus lies on the plaintiff to establish sufficient grounds for taking a case out of the general rule and depriving those who are protected by the time limit of its benefits. Third, it is relevant to consider how promptly and in what circumstances the applicant brought the application for the extension of time. Fourth, it is material as to whether or not negotiations have been commenced within the time limit. Fifth, it is relevant to consider whether the estate has been distributed before the claim under the Act was made or notified. Sixth, it is relevant to consider whether or not if an extension is refused the claimant will be left without recourse against anyone. In addition, in the context of this case, reference was made to the decision of the Full Court in Young v Kestel [2003] WASCA 190 to make the point no detailed consideration of the merits of the applicant's case, were leave to be granted, is required. Reference was also made to the decision of Grigoriou v Nitsos [1999] WASCA 42, as to the significance of the steps taken by the claimant to actually pursue her own case.
(Page 12)
28 The plaintiff's application is supported by her affidavit sworn 6 February 2013. The bulk of the affidavit is concerned with establishing that the plaintiff was the de facto wife of the deceased. It is unnecessary to go through the evidence in detail. Counsel for the defendant did not challenge the plaintiff's evidence. Given the question does not have to be finally determined on this application it is sufficient if I say the position is arguable and favours the grant of an extension.
29 Counsel for the defendant did raise two specific points. First, he pointed out the affidavit in support of the application did not contain any evidence as to the plaintiff's circumstances. In other words there was no evidence even tending to establish that as at the date of the death of the deceased, the plaintiff's circumstances were such that the deceased should have provided for her in his will. That, it was submitted, was fatal to the application.
30 The second point made by counsel related to events that had occurred subsequent to the death of the deceased. The plaintiff was the executrix appointed under the will. She was left certain property in the will which was mortgaged to the Westpac bank. The termination payment I have referred to above was paid into an account of the deceased and I have determined above is subject of a partial intestacy. However, after the death of the deceased payments were not made pursuant to the mortgage. Eventually, Westpac paid out the mortgage from funds standing in the account in the deceased's name covering the termination payment. The plaintiff says she is not in a position to repay those funds to the estate save by selling the property. As I understand counsel's submissions, it is said this conduct on the part of the plaintiff is a factor against granting leave to bring an application.
31 For present purposes it is unnecessary to go through the remaining factors which I have outlined above. They are either not relevant or not of sufficient consequence to influence the decision one way or the other.
32 On balance I am satisfied leave ought to be granted to the plaintiff to bring an action under the Act. Two matters are, in my view, significantly in the plaintiff's favour and sufficient to carry the day. First, the evidence suggests she will be able to establish she was the de facto spouse of the deceased. Second, the fact she was not in a position to pay the mortgage on the property she was to receive under the will, suggests she was in a precarious financial position. It is arguable if the deceased left her encumbered property which he knew she had no way of servicing, he should also have provided in his will funds to allow her to discharge the
(Page 13)
- mortgage. Of course I am expressing no concluded view on this question. But, it seems to me to be arguable and it is a strong factor in favour of a grant of leave. Whatever other factors may weigh against a grant of leave they are not sufficient to counterbalance this point.
33 In my view there should be an extension of time granted to the plaintiff to bring an application under the Act. I will hear the parties as to the precise form of orders.
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