MTG v MWG as executor of the will of MTH - [2020] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MTG -v- MWG as executor of the will of MTH [2020] WASC 326
CORAM:   MASTER SANDERSON
HEARD:   10 AUGUST 2020
DELIVERED          :   22 SEPTEMBER 2020
PUBLISHED           :   22 SEPTEMBER 2020
FILE NO/S:   CIV 2033 of 2019
BETWEEN:   MTG
Plaintiff
AND
MWG as executor of the will of MTH
TMA as executor of the will of MTH
First Defendants
GMT by guardian ad litem STH
Second Defendant
BMT
Third Defendant
SWM
Fourth Defendant

Catchwords:

Family provision - Application by husband not provided for in will - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Property Law Act 1969 (WA)

Result:

Further provision made

Category: B

Representation:

Counsel:

Plaintiff	:	R J Lee
First Defendants	:	L M McFarlane
Second Defendant	:	M Curwood
Third Defendant	:	M Curwood
Fourth Defendant	:	M Curwood

Solicitors:

Plaintiff	:	Slater & Gordon - Perth
First Defendants	:	McFarlane Lawyers
Second Defendant	:	Kershaw Legal
Third Defendant	:	Merle Bloch
Fourth Defendant	:	Macdonald Rudder

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

Steinmetz v Shannon [2019] NSWCA 114

MASTER SANDERSON:

By originating summons dated 13 June 2019 the plaintiff applied under s 6(1) of the Family Provision Act 1972 (WA) for further provision from the estate of the late MTH (the deceased). The first defendants are the joint executors of the estate of the deceased. The plaintiff is the husband of the deceased. The second and third defendants are children of the plaintiff and the deceased. The fourth defendant is the deceased's mother.
For reasons which will become apparent it is unnecessary to detail the relationship between the plaintiff and the deceased. In an affidavit of the plaintiff sworn 13 June 2019 the plaintiff sets out in summary his relationship with the deceased and the effect of her will. These paragraphs read as follows:
3.I was married to [MTH] immediately prior to her death on 23 April 2017.
4.[MTH] and I met in Kenya in 1994. We were both living as refugees in Kenya, having moved there from Ethiopia.
5.Approximately 2 weeks after meeting, we commenced residing together. I was 23 years of age and she was about 12 years of age. It was considered culturally acceptable in our country for that kind of arrangement.
6.[MTH] and I married in Kenya on 8 October 2004.
7.[MTH] and I have two children together; [BMT], the Third Defendant in these proceedings, born on 16 November 1998 when we were living in Kenya, and [GMT], the Second Defendant in these proceedings, born on 7 April 2010 in Australia.
8.On 18 December 2001, [MTH] migrated to Australia with [BMT]. I understand that they were able to do so because [MTH's] sister was residing in Australia. At that stage, as [MTH] and I were not yet married, I was not eligible to move to Australia.
9.On 3 September 2004, [MTH] returned to Kenya and we married. I then moved permanently to Australia in February 2005.
10.[MTH] and I lived together in Australia at all times from February 2005 until her death.
The Will
11.[MTH] made a Will dated 19 February 2017 ('the Will').
12.Probate of the Will was granted to the First Defendants on 16 June 2017.
13.By the terms of the Will, [MTH] left her residuary estate as follows:
a.as to a 45% share, to the Second Defendant, [GMT], provided he attains the age of thirty;
b.as to a 35% share, to the Third Defendant, [BMT], provided she attains the age of thirty; and
c.as to a 20% share, to the Fourth Defendant, [SWM], ('[SWM]'), provided she survives the deceased.
14.[SWM] is [MTH's] mother.
15.The Will makes no provision for me.
On 13 July 2020 the first defendants, in their capacity as executors of the estate, filed an affidavit which as attachment MG&TA1 has a statement of assets and liabilities as at 13 July 2020. That statement shows the estate had just over $892,000 in cash and an interest in a property in Queens Park valued at $250,000. The total value of the assets (which included a motor vehicle valued at $18,000 was $1,160,809.27. There were secured debts (secured over the Queens Park property) of just over $165,000. There were a number of other relatively small debts and the costs of these proceedings were brought to account. The total liabilities of the estate were $253,008.12. Thus the estate had a net value of $907,801.15.
As to the Queens Park property, the deceased and the plaintiff purchased the property as joint tenants in 2012. They lived in the property as a family home. They made monthly repayments on the mortgage presumably jointly. The plaintiff continues to live in the property.[1]
[1] Affidavit of MTG sworn 13 June 2020 [27].
On 3 March 2017 the plaintiff and the deceased signed a transfer of land which severed the joint tenancy.[2] Why this was done – and it appears to have been done at the initiative of the deceased – is irrelevant. Of course the effect of severing the joint tenancy was that on the death of the deceased the deceased's half interest in the property fell into her estate. It would be open to the estate to seek sale of the Queens Park property under s 126 of the Property Law Act 1969 (WA). In fact given the way the will is structured it is difficult to see how the executors, properly advised, would not take that step. It is clear the plaintiff does not have the financial resources to purchase the half interest in the property from the estate. The proper approach then is to anticipate if no provision is made from the estate to safeguard the plaintiff's position the Queens Park property will be sold.
[2] Affidavit of MTG sworn 13 June 2020 [29].
At the commencement of the hearing and in his written submissions, counsel for the second to fourth defendants conceded the will of the deceased had not made adequate provision for the plaintiff.[3] In other words, a concession was made the jurisdictional question had been answered in the plaintiff's favour. Of course this is a matter to be determined by the court. But in the circumstances of this case the concession was properly made. At present the plaintiff is unemployed. He is studying for a qualification as a nursing assistant. His original affidavit showed his income was not meeting his outgoings. As at the date of trial the enhanced social security benefits applying at present had improved his position. But the question of whether the will made adequate provision for the plaintiff is to be determined as at the date of death of the deceased. All the evidence is one way. The will of the deceased did not make adequate provision for the plaintiff.
[3] Outline of submissions filed on behalf of the second, third and fourth defendants filed 7 August 2020 [7].
The question then is what provision should be made from the estate for the plaintiff.
On behalf of the plaintiff it was submitted the will should be varied so the plaintiff receives the Queens Park property in its entirety. Furthermore, there should be provision from the estate to pay out the mortgage on the property and there should be a cash provision of around $30,000 to cover contingencies.[4]
[4] Plaintiff's submissions filed 7 August 2020 [48].
On behalf of the plaintiff it was accepted while he was not working at present the plaintiff had the capacity to work and was likely to find some employment in the future. Based on the evidence led by the plaintiff that is clearly the case. Almost from the time he arrived in Australia the plaintiff was employed sometimes in as many as three jobs. During the course of his submissions, counsel for the second, third and fourth defendants described the plaintiff's work ethic as 'terrific'. That was an apt description. So while the plaintiff sought the security of residing in the former matrimonial home, he did not seek provision out of the estate that would allow him to remain in the property without obtaining gainful employment.
There are references in various decisions, particularly in New South Wales, which suggest that as a general rule a widow (or widower) is entitled to expect to remain in the matrimonial home. Steinmetz v Shannon [2019] NSWCA 114 considers these authorities. But as all the cases make clear, there is no hard and fast rule to the effect a widow or widower is entitled to remain in the matrimonial home. That would be a gloss on the statute. Each case must be decided on its merits. That proposition was accepted by all parties in this action.
There is no doubt that the second, third and fourth defendants all have valid competing claims as to the estate. At present, the second defendant spends one week with the plaintiff and one week with his sister, the third defendant. There are presently on foot proceedings in the Family Court which will determine whether the plaintiff or the third defendant should have custody of the second defendant. But either way, the second defendant will be cared for by the plaintiff and the third defendant. He does not have any immediate need for funds. That is not to say from time to time some provision, if made, would enhance his position. Perhaps the provision of tutoring for his studies; or the provision of sporting equipment. But he does not have a demand for funds in the same way as the plaintiff and the third defendant have a demand for funds.
The third defendant is studying and working part time.[5] She is undertaking a teaching degree.[6] She is presently renting a unit.[7] At 21 years of age and caring part time for her brother, she would clearly benefit from any provision from the deceased's estate. It was accepted by the plaintiff she has both a legitimate claim on the deceased's estate.
[5] Affidavit of BMT sworn 31 July 2020 [65].
[6] Affidavit of BMT sworn 31 July 2020 [28].
[7] Affidavit of BMT sworn 31 July 2020 [70].
The fourth defendant clearly had a strong relationship with the deceased and has a strong relationship with the second and third defendants.[8] She provided assistance to her daughter at the expense of her own business.[9] After the death of the deceased she was paid a benefit from the estate and when these proceedings were commenced she repaid that benefit in part.[10] She is now on a pension and has very limited means.[11] She too has a claim on the bounty of the deceased.
[8] Affidavit of SWM sworn 20 February 2020 [6] – [7].
[9] Affidavit of SWM sworn 20 February 2020 [18].
[10] Affidavit of SWM sworn 20 February 2020 [33] – [35].
[11] Affidavit of SWM sworn 20 February 2020 [36].
In his closing submissions counsel for the second, third and fourth defendants submitted the proper variation to the deceased's will would be to require the sale of the Queens Park property with provision made to allow the plaintiff to buy a unit in Queens Park. Counsel pointed out the present property was a four bedroom, two bathroom dwelling which was occupied by the plaintiff with the second defendant residing in the home every other week. In the context of an estate with limited assets it was submitted proper provision could be made if that property was sold and a property more suited to the plaintiff's needs was purchased by him. Evidence was led by the second, third and fourth defendants as to the availability of units in the Queens Park area. Counsel then provided an aid memoir which detailed how the estate could be divided.
The difficulty with this approach is that it required the sale of the former matrimonial home. While the proposal put by counsel was not without merit it would be a drastic step to force the plaintiff to sell the property in which he wishes to reside. True it is, the result will be capital in the estate will be tied up in the Queens Park property. Nonetheless, that seems to me to be the inevitable consequence of making adequate provision for the plaintiff. I am satisfied that adequate provision here means the plaintiff should have the Queens Park property with the liabilities discharged from the assets of the estate. I am also satisfied he ought have a lump sum of $30,000. That is a reasonable figure to tide him over until he can find productive employment.
On publication of these reasons the parties ought confer as to the proper form of orders. Subject to hearing from the parties, the costs of all parties should be borne out of the estate. During the course of the hearing, counsel for the defendants did raise the prospect of the will being further varied to allow the second defendant to access his share of the estate when he turned 21 and the third defendant to access her share of the estate immediately. I will hear the parties further on this issue.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
22 SEPTEMBER 2020