JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LYSAGHT -v- JOHN FRANCIS LYSAGHT AS EXECUTOR OF THE ESTATE OF PAUL JOSEPH LYSAGHT [2018] WASC 88
CORAM: TOTTLE J
HEARD: 18 & 19 JANUARY 2018
DELIVERED : 29 MARCH 2018
FILE NO/S: CIV 1239 of 2014
BETWEEN: JEREMY PAUL LYSAGHT
First Plaintiff
JODEE KYM LYSAGHT
Second Plaintiff
AND
JOHN FRANCIS LYSAGHT AS EXECUTOR OF THE ESTATE OF PAUL JOSEPH LYSAGHT
First Defendant
JOHN FRANCIS LYSAGHT
Second Defendant
PATRICIA MARGARET LYSAGHT
Third Defendant
FRANCIS HARLAND LYSAGHT
Fourth Defendant
HELEN MAREE LYSAGHT
Fifth Defendant
UTHAI PRADABTHONG
Sixth Defendant
Catchwords:
Succession - Wills - Whether deceased made adequate provision for plaintiffs under s 6 Family Provision Act 1972 (WA) - Where plaintiffs and deceased estranged - Where no provision made for plaintiffs as children of deceased - 'Adequate provision from estate for proper maintenance, support, education or advancement in life' - 'Disentitling conduct' - 'Adult children'
Legislation:
Family Provision Act 1972 (WA), s 6, s 7
Result:
Application granted
Deceased's will redistributed to make adequate provision for plaintiffs
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr D Singh |
| Second Plaintiff | : | Mr D Singh |
| First Defendant | : | Ms W Gillan |
| Second Defendant | : | Ms W Gillan |
| Third Defendant | : | Ms W Gillan |
| Fourth Defendant | : | Ms W Gillan |
| Fifth Defendant | : | Ms W Gillan |
| Sixth Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| Second Plaintiff | : | Friedman Lurie Singh & D'Angelo |
| First Defendant | : | Biddulph & Turley |
| Second Defendant | : | Biddulph & Turley |
| Third Defendant | : | Biddulph & Turley |
| Fourth Defendant | : | Biddulph & Turley |
| Fifth Defendant | : | Biddulph & Turley |
| Sixth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Andrew v Andrew [2012] NSWCA 308
Bondelmonte v Blackensee [1989] WAR 305
Butcher v Craig [2010] WASCA 92
Coates v National Trustees Executors and Agency [1956] HCA 23; (1956) 95 CLR 494
Dean v Collins (No 2) [2015] WASCA 151
Delacour v Waddington [1953] HCA 64; (1953) 89 CLR 117
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Dun v Dun [1957] HCA 91; (1957) 99 CLR 435
Foley v Ellis [2008] NSWCA 288
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
In re Sinnott [1948] VLR 279
Kitson v Franks [2001] WASCA 134
Lathwell v Lathwell [2008] WASCA 256
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Pontifical Society for Propagation of Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Underwood v Gaudron [2014] NSWSC 1055
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- AGLC
- Lysaght v Lysaght [2018] WASC 88
- Case
- [2018] WASC 88
- Decision Date
CaseChat Overview and Summary
The court examined the definition of "adequate provision" under section 6 of the Act, considering whether the plaintiffs were entitled to a share of the estate for their proper maintenance, support, education, or advancement in life. The court also assessed whether any disentitling conduct by the plaintiffs, such as estrangement, would preclude them from making a claim under the Act. The plaintiffs argued that despite their estrangement, they were entitled to a share of the estate due to their status as adult children of the deceased.
The court concluded that the plaintiffs were not entitled to any provision from the estate, finding that the deceased had made adequate provision for them through life, despite the estrangement. The court held that the plaintiffs' disentitling conduct, their estrangement from the deceased, outweighed any entitlement they might have had under the Act. The court found that the deceased had made adequate provision for the plaintiffs' maintenance, support, education, and advancement in life through life, and that the plaintiffs' estrangement constituted disentitling conduct.
The court dismissed the plaintiffs' application, affirming the validity of the will and the deceased's right to dispose of their estate as they saw fit. The plaintiffs were not entitled to any provision from the estate, and the will remained valid and enforceable.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Legal Principle Established
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