Legal Research
Cases
Lysaght v Lysaght

Lysaght v Lysaght

Case [2018] WASC 88 29 March 2018

Family Provision Act 1972 (WA)

Type to search within this case.

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
Diver v Neal [2009] NSWCA 54
Dun v Dun [1957] HCA 91; (1957) 99 CLR 435
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
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
Keep v Bourke [2012] NSWCA 64
Kitson v Franks [2001] WASCA 134
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead [2017] WASCA 215
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
Vigolo v Bostin [2005] HCA 11; (2004) 221 CLR 191
Wheat v Wisbey [2013] NSWSC 537

TOTTLE…

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 Lysaght v Lysaght

Details

AGLC: Lysaght v Lysaght [2018] WASC 88
Case: [2018] WASC 88
Decision Date: 29 MARCH 2018

CaseChat Overview and Summary

The plaintiffs, children of the deceased, sought to challenge the validity of the will under the Family Provision Act 1972 (WA), asserting that the deceased had not made adequate provision for them. The deceased had been estranged from the plaintiffs for a significant period, and no testamentary provisions were made in their favour. The court was tasked with determining whether the deceased had made adequate provision for the plaintiffs, as defined by the Act, and whether the plaintiffs' conduct disentitled them from making the claim.

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