Schumacher v Joshua Pierre Cornwall as executor of the estate of Betty May Schumacher

[2024] WASC 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SCHUMACHER -v- CORNWALL as executor of the estate of SCHUMACHER [2024] WASC 164

CORAM:   MASTER RUSSELL

HEARD:   ON THE PAPERS

DELIVERED          :   8 MAY 2024

FILE NO/S:   CIV 2209 of 2023

BETWEEN:   TESSA LOUISE SCHUMACHER

Plaintiff

AND

JOSHUA PIERRE CORNWALL as executor of the estate of BETTY MAY SCHUMACHER

First Defendant

JOSHUA PIERRE CORNWALL

Second Defendant

Catchwords:

Wills and Estates - Application by grandchild 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)(d), 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	:	Arns & Associates
First Defendant	:	Birman & Ride
Second Defendant	:	In Person

Cases referred to in decision:

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

Musasghi v Gebremariam [2022] WASCA 37

MASTER RUSSELL:

Introduction

1. By originating summons filed on 26 October 2023, pursuant to s 6 of the Family Provision Act 1972 (WA) (Act), the plaintiff, Tessa Louise Schumacher, seeks further provision from the deceased estate of her late grandmother, Betty May Schumacher (Deceased), who died on 14 March 2023. 

2. Joshua Pierre Cornwall is the Deceased's grandson and the plaintiff's half-brother.  He is the first defendant in this proceeding in his capacity as executor of the Deceased's estate and second defendant in his own capacity.

3. With no disrespect to either party, I will refer to the plaintiff and the second defendant by their first names.

4. A resolution of Tessa's application was agreed between the parties at a mediation in March 2024, following which they filed a memorandum recording their consent to orders being made, subject to the court's approval and satisfaction it is appropriate to exercise its discretion to grant the agreed relief.  The memorandum of consent orders, initially filed on 21 March 2024, sought orders varying the Deceased's will dated 4 February 2023 (Will) by the deletion and insertion of certain provisions. 

5. 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, relevantly, 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 [10].

6. Through my associate, I referred the parties to the Court of Appeal's decision in Keremestevski (S), following which Tessa's lawyers filed an outline of submissions in support of orders for further provision for Tessa 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 Tessa 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.

7. I have determined this matter on the papers and 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 filed, being:

   (a)an affidavit sworn by Tessa on 26 October 2023; and

   (b)affidavits sworn by Joshua on 5 and 7 March 2024.

2. Tessa is 36 years old, having been born on 23 October 1987.  She is the granddaughter of the Deceased. 

3. Joshua is 39 years old, having been born on 11 June 1984.  He is the grandson of the Deceased and Tessa's half-brother.

4. Tessa and Joshua have different mothers.  They shared the same father, Scott Schumacher, who was the Deceased's son.  He died in 1994. Tessa and Joshua both enjoyed a close relationship with their late grandmother, the Deceased.

5. Tessa has a number of mental health conditions, as outlined in her affidavit and the documents attached to it.  She had been supported financially and emotionally by her grandparents before they passed away.  Her grandfather died in 2013.

6. Joshua also has some mental health conditions, as referred to in his affidavit.

7. There is no suggestion that either of Tessa or Joshua's conditions were such as to affect their capacity.

8. By her Will, the Deceased relevantly gifted:

   (a)to Tessa, a residential property in Clarkson (the Property) as described in the Will and in Tessa's affidavit;

   (b)$420,000 to Joshua; and

   (c)the residue of the estate equally to Tessa and Joshua. 

9. On 27 April 2023, probate of the Will was granted to Joshua as executor appointed under the Will.

10. Tessa has resided at the Property since January 2019.  The Property needs maintenance and repair.

11. Tessa and Joshua each depose to their financial positions in their affidavits. Tessa's financial position is such that she does not have the financial resources to maintain or meet the outgoings on the Property. 

12. In his affidavit sworn on 5 March 2024, in his capacity as executor of the Deceased's estate, Joshua deposes that, as at that date, the assets of the estate comprise movable property valued at $740,202.24 and the Property valued at $600,000.

13. Tessa deposes that the residue of the estate which she will share with Joshua is not sufficient to meet the future outgoings for, repairs to and maintenance of the Property. 

14. Tessa and Joshua have agreed, subject to the court's determination, that further provision be made for Tessa by providing that $220,000 of the residue of the estate be distributed to Tessa and the balance of the residue be distributed to Joshua. 

Disposition

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

2. Probate of the Will was granted on 27 April 2023. The proceedings were commenced by originating summons filed on 26 October 2023 and within the time limit prescribed by s 7(2) of the Act.

3. 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[3] and Musasghi v Gebremariam,[4] and recently summarised in Keremestevski v McLeod as executor of the estate of McLeod.[5]

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

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

   [5] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [44] - [50].

4. I accept the submissions made on behalf of Tessa that the disposition of the Deceased's estate effected by the Will is not such as to make adequate provision from the estate for Tessa's proper maintenance, support, or advancement in life in terms of s 6(1) of the Act. The provision made for Tessa is not sufficient to meet the cost of ownership and maintenance of the Property and, in the absence of greater provision from the estate, would have necessitated the sale of the Property.

5. In the circumstances, in my view, it is appropriate for the court to exercise its discretion to make orders for further provision for Tessa under s 6(1) of the Act, and to make orders substantially in terms of the amended memorandum filed on 12 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, Tessa Louise Schumacher, from the Estate of Betty May Schumacher (Estate), by way of an alteration to the distribution of the Estate such that it be distributed as if the Will of Betty May Schumacher dated 4 February 2023 (Will) had been amended by codicil (in accordance with section 10 of the Act) to:

   (a)insert a clause 5.3.lA (after existing clause 5.3.1) reading '5.3.lA $220,000 to Tessa Louise Schumacher'; and

   (b)delete clause 5.4 and replace it with a new clause 5.4 reading '5.4 the residue to Joshua Pierre Cornwall 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.

6. Orders will be made in those terms.

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

AM

Associate to Master Russell

8 MAY 2024