Southwell v Staite - [2019] ACTSC 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Southwell v Staite
Citation:	[2019] ACTSC 2
Hearing Date(s):	4 June 2018, 29 August 2018
DecisionDate:	29 January 2019
Before:	McWilliam AsJ
Decision:	See [78]
Catchwords:	FAMILY PROVISION – whether extension of time should be granted – where 19-month delay – whether adequate provision for the proper maintenance, education or advancement in the plaintiff’s life is available under the will – where the circumstances include a modest estate, the testator’s apparent intention was for equality among beneficiaries, and the plaintiff receiving an extra $10,000 under the will – claim dismissed WILLS – whether executors paid the plaintiff her full entitlement in accordance with the contents of the will – where executors entered into subsequent agreement with plaintiff as to specific amount – whether amount equates to entitlement under the will – application allowed
Legislation Cited:	Administration and Probate Act 1929 (ACT) s 57 Bankruptcy Act 1966 (Cth) ss 5, 58, 77 Family Provision Act 1969 (ACT) ss 7, 8, 9
Cases Cited:	In the Estate of Southwell [2017] ACTSC 154 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Re Guskett [1947] VLR 212 Roberts v Stern [2017] ACTSC 182 Sgro v Thompson [2017] NSWCA 326 Slack v Rogan [2013] BSWSC 522; 85 NSWLR 253 Smith v Public Trustee of the Australian Capital Territory [2012] ACTSC 4; 6 ACTLR 126
Parties:	Kristi Jacqueline Southwell (Plaintiff) Kerry Anne Staite and Mark Edward Southwell as executors of the estate of the late Shirley Southwell (Defendants)
Representation:	Counsel Ms M Pringle (Plaintiff) Mr B Gillies (Defendants)
Solicitors Campbell & Co Lawyers (Plaintiff) Symons Phillips Lawyers (Defendants)
File Number:	SC 472 of 2016

McWilliam AsJ

This proceeding concerns the estate of the late Shirley Southwell (deceased), who died on 8 June 2014, leaving a will executed on 5 December 2008 (Will).

The plaintiff is one of the daughters of the deceased. The defendants, Ms Kerry Staite and Mr Mark Southwell, are two of her siblings who were appointed executors of the Will, and probate was granted to them on 25 September 2014. The deceased had five children in total, the other two being estranged from her for many years, including prior to the execution of the Will.

The plaintiff’s complaints relate to Clause 3 of the Will. It relevantly provides:

I GIVE the whole of my estate to my Trustee on trust equally for those of my children MARK EDWARD SOUTHWELL (MARK), KERRY ANNE STAITE (KERRY) and KRISTI JACQUELINE SOUTHWELL (KRISTI) who survive me but if one of my children dies before me…

The remainder of the clause is immaterial as all three of the deceased’s named beneficiaries survived her. Under the Will, the plaintiff also had the option to purchase the primary asset of the estate, the deceased’s home in Kambah at market value. This was where she was living at the time the deceased died. The plaintiff did not avail herself of that option, and the…

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 Southwell v Staite

Details

AGLC: Southwell v Staite [2019] ACTSC 2
Case: [2019] ACTSC 2
Decision Date: 29 January 2019

CaseChat Overview and Summary

The case of Southwell v Staite involved a dispute over the interpretation and execution of a will. The plaintiff sought an extension of time to bring a family provision claim, arguing that there had been a significant delay of 19 months. Additionally, she argued that adequate provision for her proper maintenance, education, or advancement in life was not available under the will. The estate in question was modest, and the testator's intention appeared to be for equality among beneficiaries, with the plaintiff receiving an additional $10,000 under the will. The court was tasked with deciding whether the extension of time should be granted and if the plaintiff had been adequately provided for.

The court considered whether the 19-month delay was justified and if there was any adequate provision for the plaintiff under the will. The testator had intended for equality among the beneficiaries, with the plaintiff receiving an extra $10,000. The court had to determine if this constituted adequate provision and if the delay in bringing the claim warranted an extension of time. Furthermore, the court examined whether the executors had paid the plaintiff her full entitlement in accordance with the will, despite a subsequent agreement with the plaintiff regarding a specific amount. The court needed to decide whether this amount equated to the plaintiff's entitlement under the will.

The court found that the delay in bringing the claim was not justified and therefore denied the extension of time. Regarding the will, the court concluded that the testator's intention for equality among the beneficiaries, including the extra $10,000 for the plaintiff, constituted adequate provision. Thus, the claim for family provision was dismissed. The court also determined that the subsequent agreement between the executors and the plaintiff regarding the specific amount did equate to her entitlement under the will, and the application was allowed. The final orders of the court were to dismiss the family provision claim and allow the application regarding the payment of the plaintiff's entitlement.

Orders

Orders of the court

See [78]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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