Loveday v The Public Trustee - [2024] WASC 460

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   LOVEDAY -v- THE PUBLIC TRUSTEE [2024] WASC 460
CORAM:   HOWARD J
HEARD:   18 & 26 NOVEMBER 2024
DELIVERED          :   5 DECEMBER 2024
PUBLISHED           :   5 DECEMBER 2024
FILE NO/S:   CIV 1088 of 2022
BETWEEN:   RICKY RONALD LOVEDAY
Plaintiff
AND
THE PUBLIC TRUSTEE IN AND FOR THE ESTATE OF WESTERN AUSTRALIA as executor of the estate of RAYMOND BIRCH HOWELL
First Defendant
EDEN MARIA HERMSEN
Second Defendant

Catchwords:

Succession - Wills - Inheritance - Application under s 6(1) of the Family Provision Act 1972 (WA) for further and better provision from the testator’s Estate - Whether the Will makes adequate provision for the proper maintenance, support, education or advancement in life for the plaintiff - Where parties entered into a Deed of family arrangement - Where defendants consent to the orders proposed by the plaintiff - Application allowed

Legislation:

Family Provision Act 1972 (WA)
Family Provision Regulations 2013 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Ms K M Woods
First Defendant	:	No Appearance
Second Defendant	:	No Appearance

Solicitors:

Plaintiff	:	Avon Legal
First Defendant	:	Public Trustee
Second Defendant	:	Zion Legal

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

Devereaux-Warnes v Hall [No 3] (2007) 35 WAR 127; [2007] WASCA 235
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12(S)
Lemon v Mead (2017) 53 WAR 76
Musasghi v Gebremariam [2022] WASCA 37

HOWARD J:

Introduction

This application concerns the estate of the late Raymond Birch Howell (Deceased) who died on 31 January 2021, leaving a will dated 10 July 2018 (Will).
The plaintiff is the Deceased's step-son. On 4 February 2022,[1] he made an application by originating summons pursuant to s 6(1) of the Family Provision Act 1972 (WA) (Act) on the basis that the Will does not make adequate provision from the Deceased's Estate for his proper maintenance, support, education or advancement in life.
[1] And later amended by a minute of proposed amended originating summons filed by the plaintiff on 25 March 2022 pursuant to Order 3 of Orders made on 30 March 2022.
Section 6(1) of the Act requires that for the Court to exercise its discretion, it must be satisfied that:
1.the plaintiff had standing to invoke the jurisdiction of the Court under s 6 of the Act;[2] and
2.that there was sufficient evidence before the Court to be satisfied of the matters necessary for an exercise of the court's jurisdiction, being that:
(a)the disposition of the Deceased's Estate affected by his Will did not make adequate provision from his estate for the proper maintenance, support, education or advancement in life of the plaintiff; and
(b)(if the question above is answered in the plaintiff's favour), the Court considers that the amount agreed as between the parties falls within the bounds of a reasonable exercise of the discretion to make such provision as the Court thinks fit for the proper…

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 Loveday v The Public Trustee

Details

AGLC: Loveday v The Public Trustee [2024] WASC 460
Case: [2024] WASC 460
Decision Date: 5 DECEMBER 2024

CaseChat Overview and Summary

The plaintiff, Loveday, applied for further and better provision from the estate of the deceased, her father, under section 6(1) of the Family Provision Act 1972 (WA). The primary dispute revolved around whether the will executed by the deceased made adequate provision for the plaintiff's proper maintenance, support, education, or advancement in life. Both parties had entered into a Deed of Family Arrangement, and the defendants consented to the orders proposed by the plaintiff.

The central legal issue before the court was the interpretation and application of section 6(1) of the Family Provision Act. Specifically, the court had to determine whether the provisions made in the deceased's will were adequate for the plaintiff's needs, considering the terms of the Deed of Family Arrangement and the consent of the defendants. The court needed to balance the discretionary powers granted by the Act against the terms of the will and the Deed of Family Arrangement.

The court found that the provisions made by the will were not adequate for the plaintiff's proper maintenance, support, education, or advancement in life. It took into account the terms of the Deed of Family Arrangement and the consent of the defendants to the orders proposed by the plaintiff. The court concluded that the application should be allowed, and the plaintiff should receive further and better provision from the estate. The court's decision was grounded in the need to ensure that the plaintiff's needs were met, as per the provisions of the Family Provision Act.

The final orders of the court were that the application be allowed, and the plaintiff was to receive further and better provision from the estate of the deceased. The exact terms of the provision were to be determined in accordance with the consent orders made by the parties. The court's decision reflects its commitment to ensuring that the statutory rights of family members under the Family Provision Act are upheld.

Orders