Milne v Kendall - [2010] WASC 338

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MILNE -v- KENDALL [2010] WASC 338

CORAM: JENKINS J

HEARD: 6 AUGUST 2010

DELIVERED : 26 NOVEMBER 2010

FILE NO/S: CIV 2369 of 2008

BETWEEN: JULIE ANN MILNE
First Plaintiff
CAROLINE MARIE MILNE
Second Plaintiff
KENNETH JOHN MILNE
Third Plaintiff
AND
JOHN STEWART KENDALL as Executor of the Estate of Constance Mary Ursla Collins
First Defendant
HELEN PATRICIA KENDALL
Second Defendant
ELIZABETH MARY JENKINSON
Third Defendant
TIMOTHY EDWARD COLLINS
Fourth Defendant

Catchwords:

Family provision and maintenance - Jurisdiction to grant relief - Adult children of the deceased daughter of the testator - Whether testator made sufficient provision for the applicants - Principles upon which relied granted

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7

Result:

Provision out of the estate of Constance Collins is made for Julie Ann Milne in the sum of $50,000, Caroline Marie Milne in the sum of $50,000 and Kenneth John Milne in the sum of $25,000, in substitution for the provision made for the plaintiffs in the will dated 8 June 2007.

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr G T Stubbs
Second Plaintiff            :     Mr G T Stubbs
Third Plaintiff              :     Mr G T Stubbs
First Defendant            :     Mr J C Curthoys
Second Defendant        :     Mr J C Curthoys
Third Defendant           :     Mr J C Curthoys
Fourth Defendant         :     Mr J C Curthoys

Solicitors:

First Plaintiff                :     Dwyer Durack
Second Plaintiff            :     Dwyer Durack
Third Plaintiff              :     Dwyer Durack
First Defendant            :     Stables Scott
Second Defendant        :     Stables Scott
Third Defendant           :     Stables Scott
Fourth Defendant         :     Stables Scott

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

Bondelmonte v Blanckensee [1989] WAR 305
Butcher v Craig [2010] WASCA 92
Kitson v Franks [2001] WASCA 134
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

JENKINS J: The three plaintiffs are the adult grandchildren of Constance (or Connie) Collins who died on 18 April 2008. The plaintiffs' mother, Margot Milne, who was the daughter of Mrs Collins, died before Mrs Collins. The plaintiffs seek orders that adequate provision be made for them out of Mrs Collins' estate.
The second to fourth defendants are the surviving children of Mrs Collins. They defend this action on the basis that Mrs Collins made adequate provision for the plaintiffs in her last will made on 8 June 2007 (the will). In the will Mrs Collins made specific gifts to each of the plaintiffs of $10,000 and otherwise divided her estate equally between her three surviving children. The first defendant is the executor of the will and the husband of Helen Kendall, the second defendant. He defends the action on the same basis as the other defendants.
For the sake of clarity and consistency, but without any disrespect, I will refer to each of the parties by their first names.
Mrs Collins and her husband lived all their married life on a rural…

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 Milne v Kendall

Details

AGLC: Milne v Kendall [2010] WASC 338
Case: [2010] WASC 338
Decision Date: 26 NOVEMBER 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Milne v Kendall involved a dispute regarding the deceased estate of a testator. The applicants, who are the adult children of the testator's deceased daughter, sought relief under the Family Provision Act 1969 (Cth), claiming that the testator had not made sufficient provision for them. The primary focus of the litigation was whether the applicants were entitled to a share of the estate, considering the provisions already made by the testator.

The court was tasked with determining the adequacy of the provision made by the testator for the applicants, taking into account the statutory criteria set out in the Family Provision Act. The applicants argued that the provision made was inadequate, while the respondents contended that the testator had fulfilled his obligations by making provision for the deceased daughter, who was the applicants' mother. The court needed to weigh the evidence and arguments presented by both parties to ascertain whether the applicants were entitled to further financial relief.

In delivering its judgment, the court examined the principles established in previous case law concerning the application of the Family Provision Act. It assessed the testator's intentions, the nature and extent of the provision made, and the financial circumstances of the applicants. The court concluded that while the testator had made some provision for the deceased daughter, it was insufficient to cover the reasonable financial needs of her children. The court found that the applicants were entitled to relief under the Act and ordered that a portion of the estate be distributed to them. The exact quantum of the relief was left to be determined by further proceedings.

Orders