Phillips v Richard Wesley Phillips as executor and trustee of the estate of Kenneth Wesley Phillips

[2024] WASC 169

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PHILLIPS -v- RICHARD WESLEY PHILLIPS as executor and trustee of the estate of KENNETH WESLEY PHILLIPS [2024] WASC 169

CORAM:   MASTER RUSSELL

HEARD:   ON THE PAPERS

DELIVERED          :   13 MAY 2024

FILE NO/S:   CIV 2282 of 2023

BETWEEN:   MARIE ANTOINETTE PHILLIPS

Plaintiff

AND

RICHARD WESLEY PHILLIPS as executor and trustee of the estate of KENNETH WESLEY PHILLIPS

First Defendant

PERTH DIOCESAN TRUSTEES

Second Defendant

Catchwords:

Wills and Estates - Application for an order under s 6(1) of the Family Provision Act 1972 (WA) - Agreement between parties - Exercise of court's discretion to make orders sought - Appropriate form of orders

Legislation:

Family Provision Act 1972 (WA) s 6, s 7(1)(a), s 7(2)

Result:

Orders made for further provision

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Birman & Ride
First Defendant	:	Johanssen & Co
Second Defendant	:	No appearance

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

Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12

Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 (S)

Lemon v Mead [2017] WASCA 215

Luciano v Rosenblum (1985) 2 NSWLR 65

Musasghi v Gebremariam [2022] WASCA 37

Schaechtele v Otto Wilhelm Schaechtele as executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148

MASTER RUSSELL:

Introduction

1. By originating summons filed on 10 November 2023, pursuant to s 6 of the Family Provision Act 1972 (WA) (Act), the plaintiff, Marie Antoinette Phillips, seeks further provision from the deceased estate of her late husband, Kenneth Wesley Phillips (Deceased), who died on 27 February 2023.

2. Richard Wesley Phillips is the Deceased's son.  He is the first defendant in this proceeding in his capacity as executor of the Deceased's estate.

3. The second defendant is Perth Diocesan Trustees.  By letter dated 28 February 2024, lawyers instructed on behalf of the second defendant notified the court that it does not oppose the application and will abide by the court's decision.

4. With no disrespect to the plaintiff or first defendant, I will refer to each of them by their first names.

5. A resolution of Marie's application was agreed between the parties at a mediation on 26 March 2024, following which they filed a memorandum recording their consent to orders being made, subject to the court's satisfaction it is appropriate to exercise its discretion to grant the agreed relief.  The memorandum of consent orders, initially filed on 26 March 2024, sought orders varying the Deceased's will dated 6 May 2013 (Will) by the deletion of three clauses and the insertion of another.

6. On 26 March 2024, the Court of Appeal delivered its supplementary decision in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod (Keremestevski (S)),[1] in which it stated that, having regard to the relevant legislative provisions, it was neither necessary nor appropriate to make orders that a will be amended when making an order for provision under s 6(1) of the Act.[2]

   [1] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 (S) (Quinlan CJ, Vandongen JA & Seaward J).

   [2] Keremestevski (S) [10].

7. Through my associate, I referred the parties to the Court of Appeal's decision in Keremestevski (S), following which Marie's lawyers filed an outline of submissions in support of orders for further provision for Marie from the Deceased's estate pursuant to s 6(1) of the Act. The parties also filed an updated memorandum of consent orders which, rather than seeking orders that the Will be amended by inserting or deleting provisions, sought orders for further provision to be made for Marie by way of an alteration to the distribution of the Deceased's estate, such that it be distributed 'as if' the Will had been amended to insert or delete certain provisions.

8. I determined this matter on the papers and, on 7 May 2024, I made orders essentially in the terms of the updated memorandum of consent orders, with some modification.  These are my reasons.

Factual background

1. The following summary of the relevant factual background is derived from the affidavits sworn by Marie on 21 September 2023 and Richard on 13 March 2024.

2. Marie is 74 years old, having been born on 24 March 1949.  She is the widow of the Deceased.  Marie and the Deceased married in May 2013.

3. Richard is the Deceased's adult son.  His mother and the Deceased's first wife, June Phillips, died in 2007.  The Deceased and June Phillips also had a daughter, Deidre May Main, who died in December 2016.

4. On 18 May 2023, probate was granted to Richard as executor appointed under the Will.

5. By the Will, Marie received a right to reside in the matrimonial home located in Bicton, Western Australia (Property), as described in the affidavit.  No monetary provision was made for her.

6. Marie has resided at the Property since October 2012.  She deposes that the Property is unsuitable for her needs.  It requires maintenance and repair and presents safety and accessibility issues, particularly as Marie gets older.

7. Marie would like to move to a lifestyle village, buy new furniture, and have enough money to meet her outgoings and continue to live a comfortable life in retirement.

8. Marie deposes to her financial position in her affidavit.  It is such that she does not have the financial resources to meet the future outgoings for, repairs to and maintenance of the Property, or to fund her move to a lifestyle village and sustain herself in retirement.

9. In his affidavit sworn on 13 March 2024, in his capacity as executor of the Deceased's estate, Richard deposes to the value of the estate.  The assets of the estate comprise movable property valued at $1,110,892.18, the Property which is valued at $920,000.00, other immovable property valued at $1,050,000.00 and total liabilities of $289,992.60.  The approximate net value of the estate is $2,790,899.58.

10. Marie and Richard have agreed, subject to the court's determination, that further provision be made for Marie by modifying the distribution of the Deceased's estate as if cl 4, cl 5 and cl 6 of the Will (relevant to Marie's right to reside in the Property) were deleted, and inserting a clause gifting Marie all of the Deceased's right, title and interest in the Property and all interest in fixtures and fittings situated therein to Marie absolutely.

Disposition

1. Although the parties have agreed a settlement of Marie's claim, the court must still be satisfied there is a proper basis for the claim.  Provided that is the case, the court will usually make orders giving effect to a settlement.  However, the decision remains one for the court in the exercise of its discretion.[3]

   [3] Schaechtele v Otto Wilhelm Schaechtele as executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148 [4] ‑ [6] (Le Miere J).

2. I am satisfied on the evidence before me that Marie has standing to bring her application pursuant to s 7(1)(a) of the Act, as the wife of the Deceased who was being maintained wholly or partly by the Deceased immediately before he died.

3. Probate of the Will was granted on 18 May 2023. The proceedings were commenced by originating summons filed on 10 November 2023 and within the time limit prescribed by s 7(2) of the Act.

1. In determining the application, and exercising my discretion to make the orders sought, I have applied the two‑stage process as set out in Lemon v Mead[4] and Musasghi v Gebremariam,[5] and recently summarised in Keremestevskiv Shaun McLeodas executor of the estate of Mark Adrian McLeod.[6]

   [4] Lemon v Mead [2017] WASCA 215 [46] - [83].

   [5] Musasghi v Gebremariam [2022] WASCA 37 [107] - [121].

   [6] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12, [44] – [50].

2. I accept the submissions made on behalf of Marie that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision for Marie's proper maintenance, support, or advancement in life in terms of s 6(1) of the Act. The Property is not suitable for her needs and she does not have the financial resources to meet the outgoings, to fund maintenance and repairs or to sustain herself and to continue to live a comfortable life in retirement.

3. As Powell J stated in Luciano v Rosenblum:[7]

   It seems to me that, as a broad general rule and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies.

   [7] Luciano v Rosenblum (1985) 2 NSWLR 65, 69 ‑ 70.

4. The orders sought by the consent of Marie and Richard would result in Marie receiving the matrimonial home (unencumbered), which has an estimated value of approximately $920,000, which she could then sell to release funds.  The value of the estate is estimated to be approximately $2.79 million.

5. In the circumstances, including Marie's personal circumstances as deposed to, I was satisfied that it is appropriate for the court to exercise its discretion to make orders for further provision for Marie under s 6(1) of the Act. Accordingly, on 7 May 2024, I made orders substantially in terms of the amended memorandum filed on 16 April 2024, as varied by the court, in the following terms:

   1.Pursuant to section 6 of the Family Provision Act 1972 (WA), (Act), provision be made for the proper maintenance, support, and advancement in life of the Plaintiff, Marie Antoinette Phillips, from the Estate of Richard Wesley Phillips (Estate), by way of an alteration to the distribution of the Estate such that it be distributed as if the Will of Richard Wesley Phillips dated 6 May 2013 (Will) had been amended by codicil (in accordance with section 10 of the Act) to:

   '4.I GIVE DEVISE AND BEQUEATH all my right, title and interest in my property known as … known as … and being the whole of the property comprised in Certificate of Title Volume … and all my interest in fixtures and fittings situated therein to MARIE absolutely.'

   2.A certified copy of this order be made upon the probate of the Will and within 7 days of the date of this order the first defendant do produce the grant of probate to the court for that purpose.

   3.The proceeding is otherwise dismissed.

   4.There be no order as to costs as between the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AM

Associate to Master Russell

13 MAY 2024