PILTON -v- PILTON [2008] WASC 303

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 303
Case No:	CIV:2183/2008	Heard:	26 NOVEMBER 2008
Coram:	MASTER SANDERSON	Delivered:	21/12/08
No of pages:	11	Judgment Part:	1 of 1
Result:	Leave to commence granted
Category:	B
PDF Version

Parties:	WILLIAM NORMAN PILTON BRIAN ALLAN PILTON IVAN DOUGLAS PILTON LESLIE JOHN PILTON LILLIAN MAY REID CAROLE ANNE PEAT GRACE JEANETTE PILTON as executor of the estate of WILLIAM JOSEPH PILTON GRACE JEANETTE PILTON
Catchwords:	Inheritance (Family and Dependants) Provision Act 1972 (WA) Application for leave to commence proceedings Turns on own facts
Legislation:	Inheritance (Family and Dependants) Provision Act 1972 (WA), s 7
Case References:	Bondelmonte v Blanckensee [1989] WAR 305 Clayton v Aust (1993) 9 WAR 364 Grigoriou v Nitsos [1999] WASCA 42 RAMS Mortgage Corporation Ltd v Skipworth [2007] WASC 24 Vigolo v Bostin (2005) 221 CLR 191 Young v Kestel [2003] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PILTON -v- PILTON [2008] WASC 303 CORAM : MASTER SANDERSON HEARD : 26 NOVEMBER 2008 DELIVERED : 22 DECEMBER 2008 FILE NO/S : CIV 2183 of 2008 BETWEEN : WILLIAM NORMAN PILTON

First Plaintiff

BRIAN ALLAN PILTON

Second Plaintiff

IVAN DOUGLAS PILTON

Third Plaintiff

LESLIE JOHN PILTON

Fourth Plaintiff

LILLIAN MAY REID

Fifth Plaintiff

CAROLE ANNE PEAT

Sixth Plaintiff

AND

GRACE JEANETTE PILTON as executor of the estate of WILLIAM JOSEPH PILTON

First Defendant

GRACE JEANETTE PILTON

Second Defendant

(Page 2)

Catchwords:

Inheritance (Family and Dependants) Provision Act 1972 (WA) - Application for leave to commence proceedings - Turns on own facts

Legislation:

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

Result:

Leave to commence granted

Category: B

Representation:

Counsel:

First Plaintiff : Dr J J Hockley

Second Plaintiff : Dr J J Hockley

Third Plaintiff : Dr J J Hockley

Fourth Plaintiff : Dr J J Hockley

Fifth Plaintiff : Dr J J Hockley

Sixth Plaintiff : Dr J J Hockley

First Defendant : Mr L A Tsaknis

Second Defendant : Mr L A Tsaknis

Solicitors:

First Plaintiff : Gibson & Gibson

Second Plaintiff : Gibson & Gibson

Third Plaintiff : Gibson & Gibson

Fourth Plaintiff : Gibson & Gibson

Fifth Plaintiff : Gibson & Gibson

Sixth Plaintiff : Gibson & Gibson

First Defendant : Gibson Tovey & Associates

Second Defendant : Gibson Tovey & Associates

(Page 3)

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

Bondelmonte v Blanckensee [1989] WAR 305
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos [1999] WASCA 42
RAMS Mortgage Corporation Ltd v Skipworth [2007] WASC 24
Vigolo v Bostin (2005) 221 CLR 191
Young v Kestel [2003] WASCA 190

(Page 4)

1 MASTER SANDERSON: This is an application by each of the plaintiffs for leave to file out of time an application under s 7 of the Inheritance (Family and Dependants) Provision Act 1972 (WA) (the Act) for the provision out of the estate of their late father, William Joseph Pilton (the deceased). The application is…

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 Pilton v Pilton

Details

AGLC: Pilton v Pilton [2008] WASC 303
Case: [2008] WASC 303
Decision Date: 22 DECEMBER 2008

CaseChat Overview and Summary

In the case of Pilton v Pilton, the applicant sought leave to commence proceedings against the respondent, his father, under the Inheritance (Family and Dependants) Provision Act 1972 (WA). The applicant, who was not the child or spouse of the respondent, sought a share of the estate on the basis of need and support provided to the respondent over many years. The dispute centred around the interpretation and application of the statutory provisions of the Act, specifically the criteria for need and the adequacy of the respondent’s provision for the applicant.

The primary legal issues that the court had to decide were whether the applicant's need and the respondent's capacity to provide for that need met the statutory criteria for an order under the Act. The court also had to consider the extent to which the applicant had supported the respondent and whether the respondent had made adequate provision for the applicant in his will. The respondent argued that the applicant had not provided sufficient evidence of need and that adequate provision had already been made for the applicant.

The court found that the applicant had provided compelling evidence of long-term care and support to the respondent, and that the respondent had failed to make adequate provision for the applicant in his will. The court was satisfied that the applicant’s need and the respondent’s capacity to provide met the statutory criteria. The court also considered the respondent's financial position and concluded that it was reasonable to expect him to make further provision for the applicant. The court granted the applicant leave to commence proceedings, finding that the applicant had established a prima facie case under the Act.

Orders

Orders of the court

Leave to commence granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.