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Macgregor v Macgregor

Macgregor v Macgregor

Case [2003] WASC 169 28 August 2003

Family Provision

Wills and Testamentary Dispositions

Maintenance and Support

Family Law

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MACGREGOR & ANOR -v- MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR & ANOR [2003] WASC 169

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 169
Case No:	CIV:2528/2000	Heard:	29 JANUARY 2003, 22 AUGUST 2003
Coram:	TEMPLEMAN J	Delivered:	28/08/03
No of pages:	40	Judgment Part:	1 of 1
Result:	Each plaintiff awarded one-sixth of estate Defendant awarded two-thirds of estate
Category:	B
PDF Version

Parties:	JEANETTE DAWN MACGREGOR DALYS WENDY GILLETT MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR MERVYN STANLEY MACGREGOR
Catchwords:	Family provision Adult children of testatrix Plaintiffs "struggling" No disentitling conduct Defendant dependent on social security and testatrix Modest estate consisting of family home in which defendant resided Whether wise and just testator would adequately provide for maintenance and support of plaintiffs and defendant by devising house to defendant
Legislation:	Inheritance (Family and Dependants Provision) Act 1972, s 6, s 9, s 15, s 16 Property Law Act 1969, s 34(1)(a)
Case References:	Barns v Barns [2003] HCA 9 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 135 In re Green, deceased; Zuckerman v Public Trustee [1951] NZLR 135 Maddison v Alderson (1883) 8 App Cas 467 Ogilvie v Ryan [1976] 2 NSWLR 504 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Scenini v Public Trustee & Ors, unreported; SCt of WA (White J); Library No 940058; 11 February 1994 Schaefer v Schuhmann [1972] AC 572 Singer v Berghouse (1994) 181 CLR 201 Stott v Cook (1960) 33 ALJR 447 Vigolo v Wanda Mary Boston [2002] WASCA 327 White v Barron (1979) 144 CLR 431 Horton v Jones (1935) 53 CLR 475 Trifid Pty Ltd v Ratto [1985] WAR 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MACGREGOR & ANOR -v- MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR & ANOR [2003] WASC 169 CORAM : TEMPLEMAN J HEARD : 29 JANUARY 2003, 22 AUGUST 2003 DELIVERED : 28 AUGUST 2003 FILE NO/S : CIV 2528 of 2000 BETWEEN : JEANETTE DAWN MACGREGOR

DALYS WENDY GILLETT

Plaintiffs

AND

MERVYN STANLEY MACGREGOR as Executor of the estate of JANET EDNA MACGREGOR

First Defendant

MERVYN STANLEY MACGREGOR

Second Defendant

Catchwords:

Family provision - Adult children of testatrix - Plaintiffs "struggling" - No disentitling conduct - Defendant dependent on social security and testatrix - Modest estate consisting of family home in which defendant resided - Whether wise and just testator would adequately provide for maintenance and support of plaintiffs and defendant by devising house to defendant

(Page 2)

Legislation:

Inheritance (Family and Dependants Provision) Act 1972, s 6, s 9, s 15, s 16

Property Law Act 1969, s 34(1)(a)

Result:

Each plaintiff awarded one-sixth of estate

Defendant awarded two-thirds of estate

Category: B

Representation:

Counsel:

Plaintiffs : Mr T Darbyshire

First Defendant : In person

Second Defendant : In person

Solicitors:

Plaintiffs : Kott Gunning

First Defendant : In…

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 Macgregor v Macgregor

Details

AGLC: Macgregor v Macgregor [2003] WASC 169
Case: [2003] WASC 169
Decision Date

CaseChat Overview and Summary

The plaintiffs, Jeanette Dawn MacGregor and Dalys Wendy Gillett, sought to have the estate of their late mother, Janet Edna MacGregor, distributed differently to how it had been devised in her will. The defendant, Mervyn Stanley MacGregor, was the executor and sole beneficiary of the will. The will left the entire estate, consisting of the family home, to Mervyn. Jeanette and Dalys sought to have the house sold, with the proceeds distributed equally between the three siblings. Mervyn opposed the application. The court found that the disposition of the estate did not make adequate provision for the proper maintenance or support of Jeanette or Dalys. The court found that it was appropriate for Mrs Macgregor to provide for Mervyn by devising the house to him, but that she should also have made some provision for Jeanette and Dalys. The court ordered that the house be sold and the proceeds distributed as follows: Mervyn was to receive two-thirds of the estate and Jeanette and Dalys were to each receive one-sixth of the estate.

Orders