Loveday v The Public Trustee
[2024] WASC 460
•5 DECEMBER 2024
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 maintenance of the plaintiff.
[2] Family Provision Act 1972 (WA) s 7.
In support of his application, the plaintiff filed:
1.an affidavit sworn by him on 4 February 2024 and filed on the same date;
2.an affidavit sworn by his solicitor, Ms Fifield on 6 June 2024 and filed on 7 June 2024;
3.written submissions filed on 7 June 2024;
4.a further affidavit sworn by him on 22 November 2024;[3] and
5.a memorandum of proposed consent orders filed on 15 November 2024.
[3] Note: at the hearing on 26 November 2024, the plaintiff made a number of corrections to the affidavit.
On 25 January 2024, the parties entered into a deed of family arrangement (Deed),[4] in which the parties agreed to make provision for the plaintiff by varying the Will and to settle the proceedings in accordance with the Deed.[5]
[4] 'MF1' to the affidavit of Ms Fifield sworn 6 June 2024.
[5] This Court's power under s 6(1) of the Act is not a power to order that the Will is amended, rather, it is an order that provision be made out of the Deceased's Estate: see Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12(S) [12] (Quinlan CJ, Vandongen JA & Seaward J).
On 24 April 2024, following the filing of a memorandum of consent orders reflecting the agreement reached in the Deed, Orders were made by a Registrar (24 April Orders) which included these proceedings to be set down for an undefended trial for orders:
5.1Provision be made for the proper maintenance, support and advancement in life of the Plaintiff from the estate of the late Richmond Birch Howell (Estate) by specific gifts to the Plaintiff of:
(i)the land at 130 Bland Road, York, Western Australia being more particularly described as "York Suburban Lot 73" (York Land), forming part of the residuary estate of the Deceased;
(ii)all chattels, fixtures and furnishings and other contents located in the home or any other improvement on the York Land forming part of the residuary estate of the Deceased, other than the following items:
(a)the oil painting of four horses framed in gold;
(b)the deceased's "Biggles" book collection consisting of 10-15 books; and
(c)the statue referred to as "Eric".
5.1A certified copy of these orders be included in the probate and that the First Defendant do produce within 7 days the grant to the Court for that purpose.
I accept that there are no competing claims on the Estate. The second defendant is the only person entitled under the Will and she consented to the 24 April Orders.[6]
[6] Plaintiff's submissions dated 6 June 2024 [17].
While the 24 April Orders contemplated the final orders be made on the papers, I listed the matter for a hearing on 18 November 2024. I did so as it appeared that some of the evidence before the Court may no longer have been current.
Prior to the hearing on 18 November 2024, the Court asked whether:
1.the plaintiff had a balance of superannuation at the time of the Deceased's death; and
2.the plaintiff's position had changed significantly since the filing of the plaintiff's affidavit in February 2022.
The plaintiff responded to these questions by email, which was not objected to by the defendants.
At the hearing on 18 November 2024, counsel for the plaintiff properly informed the Court that the plaintiff intended to put on further evidence by affidavit as to his updated financial position.
I adjourned the hearing on 18 November 2024 to 26 November 2024, for further evidence to be put before the Court.
Deceased's Estate
The Will left a property at 41 Davilak Avenue, Hamilton Hill (Davilak Property) to the plaintiff. However, this property was sold in late 2019, prior to the Deceased's death.
The plaintiff deposed in his first affidavit that the net value of the Estate at the time of the Deceased's death was $1,064,528.66.[7]
[7] Affidavit of Mr Loveday sworn 4 February 2022 [7]; ts 17 on 26 November 2024.
The Deceased appointed the Public Trustee (the first defendant) as executor and trustee of his Estate. On behalf of the first defendant, Mr Conlin filed two affidavits sworn and filed on:
1.11 November 2022, which stated the net value of the Estate as at 10 November 2022 was $1,049,379.52;[8] and
2.16 June 2023, which stated the net value of the Estate as at 16 June 2023 was $845,752.10.
[8] Note: the value of the Estate is taken as the value of the assets minus the liabilities.
From the evidence, the Deceased's Estate at 10 November 2022 (following his death on 31 January 2021) comprised of:
1.furniture and effects worth $2,000;
2.property at 130 Bland Road, York valued at $600,000 (later valued at $460,000 as at 10 January 2023);
3.property at Unit 23, 4 Southend Road, Hamilton Hill valued at $250,000 (later valued at $190,000 as at 14 December 2022); and
4.monies in a cash account of $208,179.50.[9]
[9] 'SWC1' to the affidavit of Mr Conlin sworn 11 November 2022.
On 18 November 2024, the first defendant sent an email to the Court which attached a further statement of the assets and liabilities of the Estate as at 18 November 2024 of $798,656.37 (net).
At the time of the death of the deceased, the Estate was worth just in excess of $1 million. Although the precise value of the property the plaintiff is seeking is not before the Court, I estimate that if the Court makes the orders sought, then the plaintiff would be receiving about half of the value of the Estate.
Standing of the plaintiff
The plaintiff submits that he has standing under s 7(1)(eb) of the Act.[10]
[10] Plaintiff's submissions dated 6 June 2024 [11].
The plaintiff's mother, Ms Howell married the Deceased in 1984, when the plaintiff was 13 years old.[11]
[11] Affidavit of Mr Loveday sworn 4 February 2022 [15]; ts 16 on 26 November 2024.
On 11 April 2012, the plaintiff's mother died. Ms Howell left a will dated 22 April 1999 (1999 Will).[12] Paragraph 3 of 1999 Will provides:
1.… I DEVISE and BEQUEATH the whole of my real and personal estate to my late husband RAYMOND BIRCH HOWELL if he shall survive me for a period of thirty days but if my husband shall not survive me for that period I DIRECT that the following clauses of this my Will shall take effect…
[12] 'A-1' to the affidavit of Mr Loveday sworn 4 February 2022.
The Deceased received property from Ms Howell under the 1999 Will.[13] Although the specific value of her property has not been put before me, the plaintiff deposes[14] and I accept that at the time of Ms Howell's death her Estate would have been worth over $517,000.[15]
[13] Affidavit of Mr Loveday sworn 4 February 2022 [35].
[14] Affidavit of Mr Loveday sworn 4 February 2022 [4] - [5].
[15] ts 16 on 26 November 2024.
The plaintiff is the adult step-child of the Deceased.[16] A step-child has standing to bring an application under s 6(1) of the Act if they received (or was entitled to receive) property from the estate of a parent of the step-child, otherwise than as a creditor of the estate and the value of that property, at the time of the parent's death, is greater than the prescribed amount.[17] The 'prescribed amount' under s 7(1)(eb) of the Act is $517,000.[18]
[16] Affidavit of Mr Loveday sworn 4 February 2022 [3].
[17] Family Provision Act 1972 (WA) s 7(1)(eb).
[18] Family Provision Regulations 2013 (WA) reg 3.
I am satisfied that the plaintiff has standing pursuant to s 7(1)(eb) of the Act and is able to make an application under s 6(1) of the Act.
Provision in Will for proper maintenance, support, education or advancement in life for plaintiff
The Court must be satisfied that the Will did not make adequate provision from the Estate for the plaintiff's proper maintenance, support, education or advancement in life at the date of the Deceased's death.[19]
[19] Musasghi v Gebremariam [2022] WASCA 37 [109] (Musasghi v Gebremariam).
This Court is to undertake a two-stage process under s 6(1) of the Act.[20]
First stage – question of fact
[20] Lemon v Mead (2017) 53 WAR 76 [50] (Lemon v Mead).
The first stage is often described as the jurisdictional question and requires the court to determine whether the disposition of the Deceased's estate is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of the plaintiff.[21] This is a question of fact and is to be determined at the time of the death of the Deceased.[22]
[21] Lemon v Mead [51]; Family Provision Act 1972 (WA) s 6(1).
[22] Lemon v Mead [52], [54]; Musasghi v Gebremariam [106] ‑ [107].
As it stands, the plaintiff receives no benefit under the Will.[23] The question is whether this legacy was adequate for his proper maintenance, support, education or advancement in life.
Plaintiff's personal circumstances
[23] ts 17 on 26 November 2024.
The plaintiff was 50 years old at the time of the Deceased's death and worked delivering milk. He owned 5 properties and earned a rental income through renting 3 of these properties. At the time of the Deceased's death, the plaintiff's total annual income was approximately $42,000 and the net value of his real and personal property was approximately $488,250.10.[24]
[24] Affidavit of Mr Loveday sworn 4 February 2022 [46].
The plaintiff has two adult children aged 20 and 26 respectively. One of his daughters has 2 foster grandchildren. At the time of the Deceased's death, his daughter and the two foster children lived with the plaintiff and the plaintiff financially supported them as much as he could. [25]
[25] Affidavit of Mr Loveday sworn 4 February 2022 [47].
At the time of the Deceased's death, the plaintiff estimated his monthly expenses were $18,020.00 and his monthly income was $4,800.00. Therefore, the plaintiff had a deficit in income and expenses of $13,220. His monthly expenses included:[26]
[26] 'A-4' to the affidavit of Mr Loveday sworn 4 February 2022.
1.mortgages $6,000.00;
2.credit card $100.00;
3.school fees (foster grandchildren) $500.00;
4.accountancy fees $420.00;
5.council rates $1,500.00;
6.utilities $1,000.00;
7.motor vehicle $2,000.00;
8.food $1,500.00;
9.property maintenance $2,000; and
10.property and vehicle insurance $3,000.00.
The plaintiff's asset and liability position as at 27 January 2022 was as follows:[27]
[27] 'A-4' to the affidavit of Mr Loveday sworn 4 February 2022.
Property
Assets
Liabilities
Cash savings over 4 CBA accounts
$4,712.10
CBA Card ****-****-****-*127
$112.00
Commsec Shares
$26,650.00
9 motor vehicles
$88,000.00
3 Whitehouse Drive, Koondoola
$365,000.00
$397,000.00
7 Selhurst Way, Balga
$375,000.00
Unit 1, 67 Tendring Way, Girrawheen
$225,000.00
$290,000.00
13A Ganfield Way, Balga
$295,000.00
$230,000.00
Vacant Land
$150,000.00
$124,000.00
Superannuation[28]
$93,000.00
[28] 'RL 1' to the affidavit of Mr Loveday sworn 11 November 2024. I note that in an email from the plaintiff on 16 November 2024, the plaintiff informed the Court that this was also the superannuation balance around February 2022, which is not disputed by the defendants.
Although, the position of the plaintiff is assessed at the time of the Deceased's death, the Court is to consider all 'material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts'.[29]
[29] Lemon v Mead [54].
As stated above, the plaintiff deposed that at the time of the Deceased's death:
1.he worked as a milk delivery driver;[30]
[30] Affidavit of Mr Loveday sworn 4 February 2022 [46].
2.the work was physically demanding and each day he would move approximately 250 milk crates at approximately 20 kg each;[31]
3.he had knee, ankle and back pain which were continuing to worsen each year;[32]
4.he believed that he would not be able to continue working for much longer as the pain prevented him from coping with the work;[33]
5.he suffered with depression and had been prescribed anti-depressants;[34]
6.he had no confidence to look for alternate work and attributes this to his depression;[35]
7.he was concerned that he would continue to have medical needs because of his depression and serious chronic physical pain from his work;[36]
8.in the past he had become addicted to painkillers and visited a chiropractor;[37]
9.he had a long-term partner, however they kept their finances separate;[38]
10.his partner at the time lived on the pension and fostered a disabled child;[39] and
11.his partner was renting and was not in a financial position to assist the plaintiff if he ceased working.[40]
[31] Affidavit of Mr Loveday sworn 4 February 2022 [49].
[32] Affidavit of Mr Loveday sworn 4 February 2022 [49].
[33] Affidavit of Mr Loveday sworn 4 February 2022 [49].
[34] Affidavit of Mr Loveday sworn 4 February 2022 [48].
[35] Affidavit of Mr Loveday sworn 4 February 2022 [50].
[36] Affidavit of Mr Loveday sworn 4 February 2022 [49].
[37] Affidavit of Mr Loveday sworn 4 February 2022 [56].
[38] Affidavit of Mr Loveday sworn 4 February 2022 [57].
[39] Affidavit of Mr Loveday sworn 4 February 2022 [57].
[40] Affidavit of Mr Loveday sworn 4 February 2022 [57].
I accept that at the time of the Deceased's death, the plaintiff's monthly expenses were significantly higher than his income. He had limited cash on hand to protect him against the vicissitudes of life. I accept that he had a number of motor vehicles and properties that he could have sold in the future. However, considering he was 50 years old at the time, he still had a number of years to support himself on a low income. I accept that as work became increasingly challenging for him, he would be placed in a more challenging financial position.
Relationship between the plaintiff and Deceased
The Court is to consider the totality of the relationship between the plaintiff and the Deceased.[41]
[41] Lemon v Mead [62]; Musasghi v Gebremariam [116].
After the plaintiff left home in 1996, he deposes that he continued to contact the Deceased and his mother three or four times a week.[42] As they got older, he would visit at least every second weekend to help with jobs around the home. The plaintiff describes that he would regularly undertake maintenance work at the Deceased's property and many of his tools remain on the York property.[43]
[42] Affidavit of Mr Loveday sworn 4 February 2022 [24].
[43] Affidavit of Mr Loveday sworn 4 February 2022 [25].
In 1997, the plaintiff's mother was diagnosed with dementia and he shared the care of his mother with the Deceased. The plaintiff cared for his mother for up to three weeks at a time.[44]
[44] Affidavit of Mr Loveday sworn 4 February 2022 [27].
In 2004, the plaintiff's mother went into a nursing home. The plaintiff described visiting her weekly and he continued to help the Deceased maintain the family home.[45]
[45] Affidavit of Mr Loveday sworn 4 February 2022 [28].
In 2008, the Deceased had a triple bypass surgery and he stayed with the plaintiff for two months to recover.[46]
[46] Affidavit of Mr Loveday sworn 4 February 2022 [29].
I accept that:
1.the plaintiff made extensive efforts to care and support for the Deceased and his mother;
2.at the time of the plaintiff's mother's death, the Deceased informed the plaintiff that he would leave the family home in York to the plaintiff;[47]
3.in the final years of the Deceased's life, he became increasingly unable to manage his affairs;[48] and
4.it was only after the Deceased died that the plaintiff became aware that he had sold two properties, one of which was left to the plaintiff in the Will.[49]
[47] Affidavit of Mr Loveday sworn 4 February 2022 [36].
[48] Affidavit of Mr Loveday sworn 4 February 2022 [39].
[49] Affidavit of Mr Loveday sworn 4 February 2022 [42].
Considering the extensive care that the plaintiff provided to both the Deceased and his own mother during their lifetime and the fact that the plaintiff did not receive any financial benefit after his mother's death 11 years before the Deceased passed away, I find that the plaintiff has a strong moral claim to the Deceased's Estate.[50]
Rights of other beneficiaries under the Will
[50] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [86].
The second defendant is the only other person who will be affected by an order of this Court. As the second defendant has consented to the Orders, I have not considered her personal circumstances.
Conclusion
I am satisfied that the Will did not make adequate provision from the Estate for the plaintiff's proper maintenance, etc. I find for the plaintiff in this first stage.
Second stage – discretion of the Court
The second stage involves the exercise of discretion[51] and the circumstances are to be considered as at the date of the hearing and final orders.[52] Although the Court is able to make an order for the provision of the Deceased's estate as the Court sees fit, it is not empowered to award more than what is 'adequate' provision for the plaintiff's 'proper' maintenance.[53]
[51] Lemon v Mead [53].
[52] Musasghi v Gebremariam [111].
[53] Lemon v Mead [58].
In exercising the discretion to make such a provision as the Court sees fit, the discretion is not to be exercised for the purpose of making what appears to the Court to be a fair distribution of the Estate[54] and freedom of testamentary disposition is an important consideration.[55]
[54] Lemon v Mead [244].
[55] Devereaux-Warnes v Hall [No 3] (2007) 35 WAR 127; [2007] WASCA 235 [91].
The Deceased had made provision for the plaintiff in his Will by leaving the Davilak Property to the plaintiff; although that was sold prior to his death. This suggests that the Deceased intended for the plaintiff to be provided for under the Will.
The plaintiff's further affidavit filed on 11 November 2024 provided an update as to his position. He deposes to:
1.his being currently unemployed as he lost his contract delivering milk in August 2022, following an injury he sustained whilst loading milk;[56]
2.being unlikely to be able to enter the workforce soon because of his age and chronic backpain;[57] and
3.his inability to work and chronic back pain having exacerbated his depression.[58]
[56] Affidavit of Mr Loveday filed 11 November 2024 [10].
[57] Affidavit of Mr Loveday filed 11 November 2024 [9].
[58] Affidavit of Mr Loveday filed 11 November 2024 [12].
Further, he deposes that his asset and liability position as at 21 November 2024 is as follows:[59]
[59] 'RL 1’ to the affidavit of Mr Loveday sworn 11 November 2024.
Property
Assets
Liabilities
Cash savings over 3 CBA accounts
$1,480.01
Superannuation
$93,000.00
2 motor vehicles
$5,000.00
3 Whitehouse Drive, Koondoola
$480,000.00
$371,709.00
7 Selhurst Way, Balga
$520,000.00
Unit 1, 67 Tendring Way, Girrawheen
$375,000.00
$269,513.00
13A Ganfield Way, Balga
$320,000.00
$210,407.00
Vacant Land in Cunderdin
$200,000.00
$136,564.00
I find that:
1.the present net value of the plaintiff's real and personal property is approximately $1,006,287.00;[60] and
2.since February 2022, the plaintiff has sold 7 of his motor vehicles and his Comsec shares 'so that [he] can live from day to day'.[61]
[60] ts 11-12 on 26 November 2024.
[61] Affidavit of Mr Loveday sworn 11 November 2024 [8].
I accept the plaintiff's estimates that his monthly income from his investment properties is $4,500.00 and his monthly expenses are $16,068.00. His monthly expenses include:[62]
[62] 'A-4' to the affidavit of Mr Loveday sworn 4 February 2022.
1.mortgages $7,868.00;
2.credit card $100.00;
3.school fees (foster grandchildren) $500.00;
4.accountancy fees $300.00;
5.council rates $1,500.00;
6.utilities $1,000.00;
7.motor vehicle - maintenance $300;
8.food $1,500.00;
9.property maintenance $2,000; and
10.property and vehicle insurance $1,000.00.
I find that the plaintiff owns his own home and he owns 4 other properties; however, I accept that he has little equity in these properties. The plaintiff has very little money in savings and cash on hand.
The plaintiff currently has a deficit in income and expenses of $11,568.00 per month.[63]
[63] ts 12 on 26 November 2024.
The plaintiff is 53 years old and is currently unemployed. He has substantial debt to service through the mortgage loans and does not have cash on hand to protect himself against the vicissitudes of life. I find that the plaintiff has limited superannuation and is a number of years away from being able to access the superannuation without penalty.
The plaintiff continues to care for his daughter and foster grandchildren, and although his daughter does contribute to their joint utility costs, [64] the plaintiff is still supporting them.
[64] Affidavit of Mr Loveday sworn 11 November 2024 [14].
The second defendant has not put any evidence before the Court as to her needs.[65] I conclude that the plaintiff's needs are greater than those of the second defendant.
[65] ts 19 on 26 November 2024.
In my judgment and in considering the circumstances described, I consider that orders made in the proposed orders make adequate provision for the plaintiff's property maintenance, support, education or advancement in life.
Conclusion
I will make the following Orders:
1.Pursuant to section 6 of the Family Provision Act 1971 (WA), (Act), provision be made for the proper maintenance, support and advancement in life of the plaintiff, Ricky Ronald Loveday, from the Estate of the late Richmond Birch Howell (Estate), by way of an alteration to the distribution of the Estate such that it be distributed as if the Will of Raymond Birch Howell made on 10 July 2018 (Will) had been amended by codicil (in accordance with section 10 of the Act) to:
a.delete clause 4 of the Will and replace it with a new clause 4 reading:
I give my land at 130 Bland Road, York, Western Australia being more particularly described as "York Suburban Lot 73" (York Land) to my step-son, Ricky Ronald Loveday, absolutely.
b.insert after the new clause 4 of the Will a heading reading: Specific Gifts;
c.insert after the new heading reading Specific Gifts a new clause 4A of the Will reading:
I give all of my chattels, fixtures and furnishings and other contents located in the home or any other improvement on the York Land, to my step-son, Ricky Ronald Loveday, other than the following items:
(i)the oil painting of four horses framed in gold;
(ii)the deceased's "Biggles" book collection consisting of 10 - 15 books; and
(iii)the statue referred to as "Eric",
which are to be included in and form part of the residue of my Estate and be gifted to EDEN MARIA HERMSEN in accordance with clause 5 of this Will.
2.A certified copy of these orders be made upon the probate of the Will and that the First Defendant within 7 days from the date of these orders do produce the grant of probate to the Court for that purpose.
3.The proceedings are otherwise dismissed.
4.There be no order as to costs between the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
5 DECEMBER 2024
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