Marks v Marks

Case [2003] WASCA 297

MARKS -v- MARKS & ORS [2003] WASCA 297



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 297
THE FULL COURT (WA)
Case No:FUL:125/200214 MAY 2003
Coram:MURRAY J
PARKER J
WHEELER J		2/12/03
17Judgment Part:1 of 1
Result: Appeal allowed
Substantive order made by Master set aside
Application of the respondents dismissed
A
PDF Version
Parties:JOAN LILLIAS MARKS
DIANE KAYE MARKS
KAREN MARKS
MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased
LYNETTE ANNE CAULDLE

Catchwords:
Testator's family maintenance
Claim by independent adult daughters
Widow is sole beneficiary under Will of deceased
Recognition of moral claim of daughters
Whether error of law made in making award on the ground
Whether exercise of discretion miscarried

Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARKS -v- MARKS & ORS [2003] WASCA 297 CORAM : MURRAY J
    PARKER J
    WHEELER J
HEARD : 14 MAY 2003 DELIVERED : 2 DECEMBER 2003 FILE NO/S : FUL 125 of 2002 BETWEEN : JOAN LILLIAS MARKS
    Appellant

    AND

    DIANE KAYE MARKS
    KAREN MARKS
    First Respondents

    MURRAY PHILIP WILLIAMS as Executor of the Will of the Deceased
    Second Respondent

    LYNETTE ANNE CAULDLE
    Third Respondent



Catchwords:

Testator's family maintenance - Claim by independent adult daughters - Widow is sole beneficiary under Will of deceased - Recognition of moral claim of daughters - Whether error of law made in making award on the ground - Whether exercise of discretion miscarried



(Page 2)

Legislation:

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




Result:

Appeal allowed


Substantive order made by Master set aside
Application of the respondents dismissed


Category: A


Representation:


Counsel:


    Appellant : Mr R E Keen
    First Respondents : Mr M N Solomon
    Second Respondent : No appearance
    Third Respondent : No appearance


Solicitors:

    Appellant : Corsers
    First Respondents : Gadens Lawyers
    Second Respondent : No appearance
    Third Respondent : No appearance



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

Collicoat v McMillan [1999] 3 VR 803
Kitson & Anor v Franks & Anor [2001] WASCA 134
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Singer v Berghouse (1994) 181 CLR 201
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin & Anor (2002) 27 WAR 121



(Page 3)

Case(s) also cited:



Allardice v Allardice (1910) 29 NZLR 959
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Baumgartner v Baumgartner (1987) 164 CLR 137
Bondelmonte v Blanckensee [1989] WAR 305
House v The Queen (1936) 55 CLR 499
Muschinski v Dodds (1985) 160 CLR 583
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Randell v Randell [1999] WASC 146
Riches v Holdman [2001] WASC 321


(Page 4)

1 MURRAY J: : The deceased died on 2 October 1998. He left a will dated 17 January 1991. Probate of the…

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Marks v Marks [2003] WASCA 297
Case
[2003] WASCA 297
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CaseChat Overview and Summary

The case of Marks v Marks involved a dispute between the widow and the daughters of the deceased, Mark Marks. The widow was the sole beneficiary under the deceased's will. The daughters, who were independent adults, sought maintenance from the estate. The court had to decide whether there was an error of law in the Master's award of maintenance to the daughters and whether the discretion exercised by the Master had miscarried.

The court examined the legal issues concerning the widow's sole beneficiary status under the will and the daughters' moral claim for maintenance. The key issue was whether the Master erred in law by awarding maintenance to the daughters, given the widow's status. The court also considered whether the Master's exercise of discretion in awarding maintenance was misapplied. The court found that the Master had indeed erred in law by awarding maintenance to the daughters, as the widow was the sole beneficiary under the will. The court held that the Master had miscarried in the exercise of discretion by awarding maintenance to the daughters, as it was not permissible to do so given the widow's status.

The court concluded that the Master's award was invalid and set it aside. The appeal was allowed, and the substantive order made by the Master was dismissed. The application of the respondents was dismissed, and no maintenance was awarded to the daughters. The court's decision recognised the importance of the widow's sole beneficiary status under the will and the need to respect the testator's wishes. The court's decision also highlighted the need for the Master to exercise discretion carefully and to consider the legal framework governing family maintenance claims.

Orders

Orders of the court

Appeal allowed

Substantive order made by Master set aside

Application of the respondents dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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