McMerrin v WILLIAMS
[2012] WASC 400
•30 OCTOBER 2012
McMERRIN -v- WILLIAMS [2012] WASC 400
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 400 | |
| Case No: | CIV:2071/2011 | 5 SEPTEMBER 2012 | |
| Coram: | MASTER SANDERSON | 30/10/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LISA JANE McMERRIN as Executrix of the estate of the late JACK ARTHUR WILLIAMS MARK SEYMORE WILLIAMS as beneficiary of the estate of the late JACK ARTHUR WILLIAMS JASON ALAN McMERRIN as beneficiary of the estate of the late JACK ARTHUR WILLIAMS NAOMI WALLACE |
Catchwords: | Administration of estate Application for order beneficiary vacate property owned by estate Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARK SEYMORE WILLIAMS as beneficiary of the estate of the late JACK ARTHUR WILLIAMS
First Defendant
JASON ALAN McMERRIN as beneficiary of the estate of the late JACK ARTHUR WILLIAMS
Second Defendant
NAOMI WALLACE
Third Defendant
Catchwords:
Administration of estate - Application for order beneficiary vacate property owned by estate - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J Pitman
First Defendant : Ms Y Salleh
Second Defendant : Ms Y Salleh
Third Defendant : In person
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : Public Trustee (WA)
Second Defendant : Public Trustee (WA)
Third Defendant : In person
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: Resolution of this matter presents considerable difficulty. Jack Arthur Williams (the deceased) died on 18 May 2010. Probate of his last will and testament dated 5 May 2010 was granted to the executrix, the plaintiff in these proceedings, on 30 December 2010.
2 The deceased divided his estate into two shares and left his estate as follows:
(a) as to one share, to his grandson Jason Alan McMerrin (the husband of the executrix); and
(b) as to one share, for the executor to hold on trust for the deceased's son, the first defendant, with a wish that the capital income be for the maintenance education benefit advancement in life or wellbeing of Mr Williams.
3 On 31 May 2012, I made an order varying the estate under the provisions of the Inheritance (Family and Dependants) Provision Act 1972 (WA). The estate was still divided into two equal shares but the way in which those shares were to be handled was altered. The clause of the will which was varied which was cl 8. Pursuant to the orders I made, cl 8 now reads as follows:
My residuary estate is to be divided into two equal shares.
8.1 one share is to be held by the Public Trustee and only the Public Trustee on trust ('the accommodation trust') and the trust assets are to be used to:
(i) purchase a property for the use of Mark Seymore Williams ('my son') for as long as that property is suitable for him upon condition that he pay all current rates, taxes and outgoings in respect of the property and to purchase alternative accommodation including accommodation in a retirement facility or a nursing home for him if the property is no longer suitable upon condition that he pay all current rates, taxes and outgoings in respect of the subsequently acquired property or properties; and
(ii) any surplus funds in the accommodation trust after the purchase of the property may be applied for the use and benefit of my son.
8.2 from the other share, $100,000 is to be provided to the Public Trustee to be held on trust ('the contingency trust') and the income and capital of the trust may be used for the benefit of my son if
- there are no funds available in the accommodation trust to provide for his needs and the Disability Services Commission or any agencies funded by or through the Disability Services Commission or its successor, is unable to provide or source funds, services or equipment or the like for those needs.
- 8.3 after the $100,000 has been paid to the Public Trustee for the contingency trust, the funds remaining in the other share are to be given to my grandson Jason Alan McMerrin absolutely.
8.4 upon the death of Mark Seymore Williams:
(i) any assets held in the accommodation trust are to be paid or transferred to such of my great granddaughters Isabella Jennifer Diane McMerrin and Sophie Lorraine Anne McMerrin who are then living and who have attained or attain 18 and if more than one, as tenants in common in equal shares, and
(ii) any assets held in the contingency trust are to be paid or transferred to my grandson Jason Alan McMerrin, if he is then living, but if he is not then living, then to his legal personal representative.
5 As at the date of his death, the estate of the deceased comprised of cash of just under $40,000 and a property at 26 Collier Street, Wembley. The value of the property is put at $800,000. The first defendant and the third defendant are currently resident in the property. The first defendant has been resident in the property for 52 years. The third defendant has been resident in the property for 28 years.
6 Against that background the plaintiff now seeks relevantly the following orders:
(a) a declaration that the plaintiff in her capacity as executor of the estate of the deceased is entitled to possession of the property at 26 Collier Street Wembley Western Australia (the property);
(b) an order that the first and third defendant's deliver up vacant possession of the property to the plaintiff within 30 days;
(c) an order the property be sold with vacant possession;
(Page 5)
- (d) leave to issue a writ of possession.
7 There is no doubt based on the evidence, the property is in urgent need of repair. It is unnecessary to go into details. Further, a report has been obtained by the Public Trustee from Network Case Management Services. The report concluded that the property did not meet the first defendant's current accommodation needs and he would benefit by moving immediately to a smaller two bedroom unit.
8 With all this in mind and pursuant to her duties as executor of the estate, the plaintiff has repeatedly requested the first and third defendant's vacate the property. They have refused to go. So the plaintiff issued these proceedings. The Public Trustee on behalf of the first defendant lodged a notice of intention to abide by the outcome. However, counsel did appear at the hearing. She suggested she could see no alternative but to make the orders sought by the plaintiff.
9 The third defendant did appear and did make representations which she said were made on behalf of her husband, the first defendant. Of course, given the first defendant is represented by the Public Trustee that was impermissible. But, there is no reason to suggest her husband differs from her in any way.
10 The third defendant disputed the property was unsuitable. She maintained that it was perfectly satisfactory for the needs of her and her husband. She did say she and her husband would move to alternative accommodation. But they did not want to move prior to the property being sold. They wish to remain in the property while it was sold. The third defendant indicated neither she nor the first defendant would take any steps which would prevent the property being sold for the maximum possible price.
11 The third defendant also pointed out, if she were forced to move, she and her husband would have the greatest difficulty finding alternative accommodation. The first defendant is in a wheelchair. They have a pet. She mentioned the tightness of the rental market generally and the almost impossible task of finding suitable accommodation when a party is under a disability. There are insufficient funds in the estate to provide the first and third defendant's with a capital sum to allow them to obtain alternative accommodation pending the sale of the property.
12 No submissions were made as to whether or not I have the power to make the orders the plaintiff seeks (I am not sure what is meant by a writ of possession). But, even if I did have such power, I would not do so in
(Page 6)
- this case. It would be unconscionable to put the first and third defendant's out on the street. The plaintiff should sell the property that much is clear. But she should do so while the first and third defendant's are residents in the property.
13 The originating summons will be dismissed. The costs of all parties will be paid out of the estate.
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