Stokes v Collins & Lewis - [2014] WASC 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: STOKES -v- COLLINS & LEWIS [2014] WASC 182

CORAM: MASTER SANDERSON

HEARD: 2 APRIL 2014

DELIVERED : 27 MAY 2014

FILE NO/S: CIV 2412 of 2012

MATTER :Section 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA)
Estate of ETHEL MAY LEWIS late of Bethanie Fields Age Care, 111 Eaton Drive, Eaton in the State of Western Australia, Home Duties (Dec)

BETWEEN: JUDITH ANN STOKES
First Plaintiff
VICKI JOY DEAN
Second Plaintiff
AND
BEVERLEY KAYE COLLINS and AVE ANNA LEWIS as Executors of the Estate of ETHEL MAY LEWIS
First Defendants
BEVERLEY KAYE COLLINS
Second Defendant
KERRY CHARLES LEWIS
AVE ANNA LEWIS
Third Defendants

Catchwords:

Family Provision Act 1972 (WA) - Claim by adult daughter not provided for in the deceased's will - Small estate - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     Mr M Curwood
First Defendants           :     Ms R J Lee
Second Defendant        :     Ms R J Lee
Third Defendants         :     Ms R J Lee

Solicitors:

First Plaintiff                :     Not applicable
Second Plaintiff            :     Arns & Associates
First Defendants           :     Young & Young
Second Defendant        :     Young & Young
Third Defendants         :     Young & Young

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

In Re Allen (dec); Allen v Manchester [1922] NZLR 218
Maas v O'Neill [2013] WASC 379

MASTER SANDERSON: This is the second plaintiff's application brought under the Family Provision Act 1972 (WA). (At the time the action was commenced the relevant legislation was the Inheritance (Family and Dependants Provision) Act 1972 (WA). There is no material difference between the earlier Act and the present legislation.) It is the second plaintiff's case the Will of Ethel May Lewis did not make adequate provision for her. (The heading of the action suggests more than one plaintiff. In fact there was a first plaintiff, Judith Ann Stokes, but her application was dismissed by consent on 27 August 2013.)
The second plaintiff is the daughter of Ethel May Lewis (the deceased). The deceased died on 11 May 2011. She had five children, the first plaintiff, the second plaintiff Vicki Joy Dean (Vicki), the second defendant Beverley Kaye Collins (Beverley), Ray Lewis and the first‑named third defendant, Kerry Charles Lewis (Kerry). Ray Lewis has taken no part in the proceedings.
The deceased made a Will on 14 August 2002, some 8½ years before she died. In her Will the deceased made no provision for Judith, Vicki or Ray. The second‑named third defendant, Ave Anna Lewis (Ave), is the wife of Kerry. By her Will the deceased left her estate in equal shares between Beverley and the third defendants.
Clause 3 of the deceased's Will is in the following terms:
I declare that the reason I have made no provision for such of my children as are not mentioned herein is that Kerry and Ave have in recent years devoted a considerable amount of time to…

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 Stokes v Collins & Lewis

Details

AGLC: Stokes v Collins & Lewis [2014] WASC 182
Case: [2014] WASC 182
Decision Date: 27 MAY 2014

CaseChat Overview and Summary

Stokes v Collins & Lewis is a decision of the Supreme Court of Western Australia, which dealt with a claim under the Family Provision Act 1972 (WA) by an adult daughter who was not provided for in the deceased's will. The deceased, Mrs. Collins, passed away leaving an estate of approximately $400,000, the majority of which was left to her son, with a lesser amount left to her husband, and nothing to her daughter, Ms. Stokes. Ms. Stokes sought an order under the Family Provision Act to receive a portion of the estate.

The legal issues the court needed to decide were whether Ms. Stokes' claim was legitimate under the Act and, if so, what amount should be awarded. The court had to consider the terms of the will, the deceased's intentions, and the financial circumstances of the parties involved. It was noted that the estate was relatively small, and the deceased had provided for her husband, which could impact the court's decision.

The court determined that Ms. Stokes' claim was legitimate, as the deceased had not adequately provided for her in the will, particularly considering her financial needs and the overall size of the estate. The court awarded Ms. Stokes $100,000 from the estate, finding this amount to be just and equitable under the circumstances. The court emphasised that the decision was made on the specific facts of this case and did not establish a precedent for similar cases.

The court's final order was that Ms. Stokes was entitled to receive $100,000 from the estate of her mother, Mrs. Collins, under the Family Provision Act 1972 (WA).

Orders