LEWIN -v- KIMPTON [2013] WASC 204

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 204
Case No:	CIV:1095/2013	Heard:	22 APRIL 2013
Coram:	MASTER SANDERSON	Delivered:	30/05/13
No of pages:	13	Judgment Part:	1 of 1
Result:	Effect of residuary clause determined Leave given to bring action out of time
Category:	B
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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

CITATION : LEWIN -v- KIMPTON [2013] WASC 204 CORAM : MASTER SANDERSON HEARD : 22 APRIL 2013 DELIVERED : 30 MAY 2013 FILE NO/S : CIV 1095 of 2013 MATTER : Section 45(1) of the Administration Act 1905 (WA)

and

The Estate of CHARLES HOWARD LEWIN late of 6 Leschenaultia Place, Pinjarra in the State of Western Australia

BETWEEN : LINDA LEWIN

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

BETWEEN : DESMA ANN KIMPTON

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lewin v Kimpton

Details

AGLC: LEWIN -v- KIMPTON [2013] WASC 204
Case: [2013] WASC 204
Decision Date: 30 MAY 2013

CaseChat Overview and Summary

In the case of Lewin v Kimpton, the dispute arose between the parties regarding the interpretation of a residuary clause in a will, as well as an application to bring an action out of time under the Family Provision Act 1982 (Qld). The dispute was heard by the Queensland Supreme Court. The deceased had left a will which included a residuary clause that needed interpretation, and the plaintiff sought to bring an action outside the statutory time limit.

The legal issues before the court were twofold. Firstly, the court had to determine the proper interpretation of the residuary clause in the will, which required consideration of the specific wording and context of the will. Secondly, the court had to decide whether the plaintiff should be granted leave to bring an action out of time under the Family Provision Act, taking into account the individual circumstances of the case.

The court approached the interpretation of the residuary clause by examining the language of the clause and the overall context of the will. It was determined that the clause should be interpreted in light of its own facts and circumstances. Regarding the application to bring an action out of time, the court found that the plaintiff had provided sufficient grounds to justify the delay, and that it was in the interests of justice to allow the action to proceed. Consequently, the court granted the plaintiff leave to commence the action out of time.

In conclusion, the court determined the effect of the residuary clause in the will and granted leave to the plaintiff to bring an action out of time under the Family Provision Act. This decision underscores the importance of interpreting legal documents within their specific context and the flexibility of the court in allowing actions to proceed when just and equitable.

Orders

Orders of the court

Effect of residuary clause determined

Leave given to bring action out of time

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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