Robinson v Patricia Joan Robinson as administrator of the estate of Harold Lowah - [2024] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ROBINSON -v- PATRICIA JOAN ROBINSON as administrator of the estate of HAROLD LOWAH [2024] WASC 140
CORAM:   COBBY J
HEARD:   5 MARCH 2024 & 3 APRIL 2024
DELIVERED          :   26 APRIL 2024
FILE NO/S:   CIV 2331 of 2022
BETWEEN:   PATRICIA JOAN ROBINSON
Plaintiff

AND

PATRICIA JOAN ROBINSON as administrator of the estate of HAROLD LOWAH
First Defendant

SHERRY LEE LOWAH
Second Defendant

KYARAH LEE LOWAH
Third Defendant

Catchwords:

Family Provision and Maintenance - Intestacy - Application by de facto partner for an order under s 6(1) of the Family Provision Act 1972 - Whether laws of intestacy make adequate provision for proper maintenance of partner - Application granted.

Legislation:

Administration Act 1903 (WA)
Family Provision Act 1972 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	I T Blatchford
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Blatchfords
First Defendant	:	Ruby & Associates
Second Defendant	:	No appearance
Third Defendant	:	No appearance

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

Boscolo v Australian Unity Trustees Ltd (as administrator of the estate of Boscolo) [2023] WASC 391
Devenish v Devenish [2011] WASC 129
Keremestevski v McLeod (as executor of the estate of McLeod) [2024] WASCA 12
Kilkenney v Kilkenny [2018] WASCA 197
Marks v Marks [2003] WASCA 297

COBBY J:

By an originating process filed 15 December 2022 the plaintiff seeks orders pursuant to the Family Provision Act 1972 (WA) that she be entitled to 'retain' a 2011 Toyota FJ cruiser and the property known as 42 Tappak Street, Waggrakine, being the whole of the land comprised in Certificate of Title Volume 2156 Folio 25 (the Property).
The plaintiff was granted letters of administration of the estate of Harold Lowah on 17 June 2022. Mr Lowah died on 7 January 2018.
It appears that the plaintiff has had the use of the FJ Cruiser and continued to live at the Property since the death of Mr Lowah.
The plaintiff's evidence is that she did not obtain legal advice in relation to Mr Lowah's estate prior to mid-2020, having been prompted to do so by an insurance company having informed her that she could not insure the Property without letters of administration in relation to Mr Lowah's estate.
The plaintiff's claim was accordingly made within the six months required under the Family Provision Act, calculated from the date on which the plaintiff obtained letters of administration.
The plaintiff has filed a notice of intention to abide by the orders of the court in her capacity as the administrator of the estate.
Mr Lowah had two adult children from a prior relationship, being Sherry Lee Lowah, born in 1992, and Kyarah Lee Lowah, born in 1997. The children are the second and third defendants to the application.
I am satisfied that both the second and third defendants were served with the originating summons and the affidavit of the plaintiff sworn 15 December 2022. Neither has entered an appearance to the proceedings, or otherwise taken any part in them.
No distribution has been made in relation to the estate, although it seems that Mr Lowah's mother took possession of a Commodore utility and a motorbike, having a combined estimated value of approximately $8,000, after her son's death.
The only remaining assets of any value in the estate are the 2011 Toyota FJ Cruiser with an estimated value of $30,000 and the Property, estimated to have a value of approximately $400,000 as at the date of the deceased's death.
The plaintiff therefore seeks orders that would result in her receiving the whole of the remaining assets of the estate.
The plaintiff's evidence is that she commenced a relationship with the deceased in about 2003, the two having met in Perth. At some point, she and the deceased came to live in a rented unit in Hardman Street, Rangeway in Geraldton. They lived there until in or about August 2017, when the deceased bought the Property and the FJ Cruiser using his superannuation proceeds.
The plaintiff commenced working as a housekeeper when the couple moved to Geraldton. Her evidence is that while they lived together, she and the deceased maintained individual bank accounts, but shared the costs of living such as utility bills, groceries and the like. The plaintiff and Mr Lowah did not have any joint assets, other than jointly owned household furniture.
The plaintiff's evidence is that she and the deceased lived together continuously for approximately 15 years until his death, notwithstanding that there were a number of occasions where she was hospitalised as a result of domestic violence committed against her by the deceased.
In the circumstances, I find that the plaintiff was in a de facto relationship with the deceased at the time of his death, and had been in that relationship for approximately 15 years.
The plaintiff estimates her current net assets to be approximately $40,000, but I note that $20,000 of that amount is attributed to the FJ Cruiser, properly an asset of the deceased estate. When that is taken into account, her assets comprise approximately $9000 in superannuation and her household furniture. She has no capital liabilities, but her fortnightly salary is approximately $750, with her fortnightly living expenses being approximately $1195.
The plaintiff's evidence is that as at the date of the death of the deceased her financial circumstances were not vastly different, with she and the deceased sharing the day-to-day living expenses, together with the maintenance costs for the FJ Cruiser and the Property.
As at December 2022, the plaintiff's daughter was staying with her on a temporary basis, and contributing to the plaintiff's costs of living.
As Mr Lowah died intestate, the court proceeds on this application as if the entitlements set out in s 14, Administration Act1903 (WA) had been set out in a will made by the deceased.[1]
[1] Boscolo v Australian Unity Trustees Ltd (as administrator of the estate of Boscolo) [2023] WASC 391, [132] - [136].
In determining the application, I apply the principles summarised by the Court of Appeal at [44] - [50] in Keremestevski v McLeod as executor of the estate of McLeod),[2] which I do not repeat here. In particular, I bear in mind that the court is not to exercise the discretion conferred by s 6(1) of the Family Provision Act to make what might appear to the court to be a fair distribution of the estate.
[2] Keremestevski v McLeod (as executor of the estate of McLeod) [2024] WASCA 12 [44 ] - [50].
As the second and third defendants have taken no part in the proceedings, there is no evidence as to their financial circumstances. I have accordingly inferred that they do not have any financial need.[3]
[3] Kilkenney v Kilkenny [2018] WASCA 197, [56], [74(6)].
The plaintiff was 59 years of age at the time of the deceased's death. She had accumulated very little in the way of savings, very little superannuation and had no capital reserves to assist her with dealing with the vicissitudes of life. Her income at the time of the deceased's death was modest, and inadequate to meet her living expenses.
I find that the plaintiff required financial assistance to improve her prospects in life at the time of the deceased's death. Given her age, she also required capital to provide her with some protection against the vicissitudes of life as her ability to earn an income declined with age.
The plaintiff is presently 65 years old. She is of retirement age with very little superannuation, no savings and no other financial buffer.
The plaintiff has been unable to meet her living expenses without the assistance of her daughter. There is nothing to suggest that her circumstances will improve.
In assessing whether adequate provision has been made for the proper maintenance, support, education or advancement in life of a claimant, the question what constitutes adequate financial provision is to be assessed by reference to, amongst other things, the size of the estate, the need and moral claim of the claimant or claimants, and the need and moral claim of other persons who have a legitimate claim upon the estate.
The value of the deceased's estate as at the date of his death was estimated to be between approximately $394,000 and $444,000. Assessed as at the date of the death of the deceased, the plaintiff's entitlement under the Administration Act 1903 is $50,000, together with interest thereon at 5% per annum from that date, being approximately $15,625 as at April 2024. In addition, the plaintiff is entitled to one third of the value of the balance of the estate, being $148,000, giving an approximate total of $213,625.[4]
[4] Section 14, Administration Act 1903 (WA.).
I accept that the plaintiff would be unable to purchase alternative accommodation if the estate were to be distributed in accordance with the statute, which would involve the sale of the Property.
I accordingly find that if the estate were to be distributed in accordance with the Administration Act, the plaintiff would be left without permanent accommodation, minimal financial resources, and no buffer against the vicissitudes of life.
I find that, in those circumstances, the law relating to intestacy did not make adequate provision for the plaintiff's proper maintenance, support, education or advancement in life.
Having made that finding, I am required to exercise the discretion to make such provision as I consider fair, taking into account relevant facts as they now exist. In doing so I am guided by the considerations which would inform a just and wise testator.
As the de facto partner of the deceased, the plaintiff has a statutory claim on his estate, as well as a moral claim based on their relationship for some 15 years.
In considering maintenance, support or advancement, the court should assess the standard of living and anticipated future needs of a claimant.[5] In doing so, the court should consider whether there is a need for financial security and a fund to protect an applicant against the vicissitudes of life.[6]
[5] Devenish v Devenish [2011] WASC 129 [70].
[6] Marks v Marks [2003] WASCA 297 [43].
In my view, the plaintiff's very limited financial resources require that provision be made for her accommodation, to provide her with an income to assist with her living expenses and to provide her with a fund to meet any unforeseen contingencies. So far as provision for the plaintiff's accommodation is concerned, given her age it should be capable of being sold to allow for the possibility that the plaintiff will need to live in aged care accommodation in the future.
I note that the plaintiff will qualify for the age pension in October 2025, but that her receipt of the pension is unlikely to substantially impact upon her financial position.
Given the relatively small size the estate and the lack of any competing claim, in all the circumstances I consider that provision should be made for the plaintiff by granting her application. That will allow her to be secure in her accommodation, with the ability to sell the Property should her circumstances change, with the proceeds of sale of the FJ Cruiser available to assist her in meeting her ongoing living expenses and to provide a small fund against the ordinary vicissitudes of life.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
26 APRIL 2024