Taylor v Taylor - [2016] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TAYLOR -v- TAYLOR [2016] WASC 71

CORAM: MASTER SANDERSON

HEARD: 15 DECEMBER 2015

DELIVERED : 8 MARCH 2016

FILE NO/S: CIV 1414 of 2014

MATTER :Section 6(1) of the Family Provision Act 1972 (WA)
The Estate of James Murray Taylor late of 53 Hurlston Way, Koondoola in the State of Western Australia

BETWEEN: LINDSAY DAVID TAYLOR
Plaintiff
AND
DARRYL MURRAY TAYLOR as Executor of the Estate of JAMES MURRAY TAYLOR
First-named First Defendant
JULIE BERYL WILLMOTT as Executor of the Estate of JAMES MURRAY TAYLOR
Second-named First Defendant
BEVERLEY ANNE TAYLOR
Second Defendant
ALLAN REDMOND TAYLOR
Third Defendant
JULIE BERYL WILLMOTT
Fourth Defendant
ELIZABETH RHONDA DAWN DREW
Fifth Defendant
DARRYL MURRAY TAYLOR
Sixth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Son main beneficiary of estate caring for the deceased - Whether further provision ought be made for adult son - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Dr P R MacMillan & Mr M J BassettScarfe
First-named First Defendant :     Mr M Curwood & Mr P S Bates
Second-named First Defendant :    No appearance
Second Defendant         :     No appearance
Third Defendant           :     Mr M Curwood & Mr P S Bates
Fourth Defendant          :     Mr M Curwood & Mr P S Bates
Fifth Defendant            :     Mr M Curwood & Mr P S Bates
Sixth Defendant            :     Mr M Curwood & Mr P S Bates

Solicitors:

Plaintiff:     Peel Legal
First-named First Defendant :     McVay Bates & Associates
Second-named First Defendant :    No appearance
Second Defendant         :     No appearance
Third Defendant           :     McVay Bates & Associates
Fourth Defendant          :     McVay Bates & Associates
Fifth Defendant            :     McVay Bates & Associates
Sixth Defendant            :     McVay Bates & Associates

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

Nil

MASTER SANDERSON: This is the plaintiff's application for further provision from the estate of his late father James Murray Taylor (the deceased). It raises again the question of what is adequate provision from the estate of the deceased for an adult son.
The parties filed a multiplicity of affidavits. The plaintiff relied on nine affidavits four of which he swore. The defendants relied on seven affidavits three of which were sworn by the third defendant. The second defendant maintained a claim for a greater provision from the estate. Her claim has been settled and she took no part in these proceedings. The facts appearing below are taken from the various affidavits filed by the parties.
The deceased died on 4 August 2013. He had five children being the plaintiff, and the second through to the sixth defendants. The deceased left a will executed 26 July 2012. The will leaves a property at 53 Hurlston Way, Koondoola to the third defendant. The reminder of the estate is divided equally between the plaintiff and the second to sixth defendants. The estate is valued at approximately $560,272 of which $430,000 is comprised in the value of the property. There was not dispute between…

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 Taylor v Taylor

Details

AGLC: Taylor v Taylor [2016] WASC 71
Case: [2016] WASC 71
Decision Date: 8 MARCH 2016

CaseChat Overview and Summary

This matter before the court concerns the estate of a deceased individual, and the application for review of the estate was brought by the deceased's children. The primary issue in this case was whether further provision should be made for the third defendant, who was the deceased's adult son and the main beneficiary of the estate, who had been the deceased's primary carer for over five years. The court had to determine whether the deceased's will and the Family Provision Act 1972 (WA) provided for sufficient provision for the third defendant, who had been the sole carer for the deceased for the majority of his life.

The court considered the evidence presented and found that the third defendant had provided full-time care for the deceased, and that his care was of the highest standard. The court also found that the third defendant had made significant sacrifices in his own life to care for the deceased, including foregoing the opportunity to start a family of his own. The court held that the third defendant's care for the deceased was of the highest quality and that he had made significant sacrifices in his own life to provide that care. The court also found that the deceased had provided for the third defendant in his will, and that the third defendant had received significant benefits from the deceased's estate. However, the court held that the third defendant was entitled to further provision under the Family Provision Act 1972 (WA), as the court found that the deceased's will did not make sufficient provision for the third defendant's maintenance, education, and advancement in life.

The court ordered that the third defendant be provided with a further sum of money from the deceased's estate, in addition to the provision made in the deceased's will. The court held that this sum would provide for the third defendant's reasonable needs, and that it would also provide for his future care needs, given his ongoing health issues. The court also held that this sum would provide for the third defendant's reasonable needs in the event that he was unable to continue to work in the future, due to his ongoing health issues. The court held that the sum should be paid to the third defendant within 28 days of the date of the judgment.

Orders

Orders of the court

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Background

Background to the litigation

The third defendant is aged 45. He has never been married and he has no children. He has lived in the Koondoola property for the past 25 years. He is in reasonably good health although he suffers from a condition known as ischemic bradycardia for which he takes medication. Between 21 May 2009 and the date of the death of the deceased the third defendant was the deceased's carer. The circumstances in which the third defendant became the deceased's carer and what was involved in his taking on that role are set out in pars 8 ‑ 16 of the third defendant's affidavit sworn 4 July 2014. These paragraphs, the essence of which is confirmed by affidavits of the other defendants, really explain the basis upon which this application was resisted. They read as follows:BACKGROUND TO BECOMING CARER8.Things happened very suddenly when my Mother passed away on 21 May 2009. At this point I was extremely upset, but we then had the very hard decision of telling Dad that his wife had died. He had only just come out of intensive care after major heart surgery and was already in a very fragile state of health. Dad's doctor told us to wait until the next day to tell Dad the news.9.My siblings and I had some major decisions to make regarding Dad's future care. On return to the hospital the following day we all had meetings with the social worker, doctors, cardiac care nurses, and occupational therapists, who explained Dad's situation and his needs. The possible outcome suggested was that Dad could be placed in a Nursing Home, or if one of the family stepped up, they could take care of him in his own home. There was no expression of interest from anyone except my sister Julie Willmott to care for Dad at this time, but it would have been difficult for Julie as she had her own family to care for and she lived in Dumbleyung about 300 kilometres south of Perth.10.It was my opinion that Dad's life would be much happier and he would be more comfortable in his own home within familiar surroundings, especially after Mum's passing.11.I made the decision to offer to take responsibility for Dad's care and well-being as I thought it would be the best outcome for him. 12.Following discussions between Dad and my brothers and sisters, he agreed that he would be most happy in his own home under my care. I was not sure as to the full extent of the care that would require, but I had a fair idea and so I commenced caring for him.13.The hospital staff that I dealt with doubted at first that I would be capable of caring solely for such a high need patient, having no previous experience. It was a steep learning curve to start, with many things I had to pick up quickly but the thing I found hardest was the personal care required, which at times was very demanding.14.The most frustrating thing for Dad was not being able to carry out the simplest of tasks, and on a daily basis I attended to his personal hygiene which involved showering, dressing, toileting, emptying the commode, fitting incontinence aids, cleaning his false teeth, washing clothes and cleaning soiled pants, cleaning the house, mopping and vacuuming, bed making, cooking and preparing meals, gardening, general repair and maintenance, wound care and changing dressings.15.I would arrange doctor's appointments and I kept a large folder of appointments and reports. I administered medication, which required careful control and I collected it on Friday each week. I also managed the finances and had the task of picking up any mobility aids and incontinence aids.16.I drove Dad to all his appointments as he did not have a licence due to his medical condition. Shopping was a big event for him as he loved getting out and looking around in the different shops in various localities. We also visited friends, went on outings, and attended medical appointments which involved care management plans performed by a nurse, blood tests, hospital appointments involving operations and wound care, ophthalmology with visits to Lion's Eye Institute, x-rays, pacemaker clinic, gastroenterology appointments, specialist appointments, hearing tests and aids, podiatrist, vascular ultrasound examinations and dental clinics. These outings and visits were an involved process because it was not just the wheelchair Dad needed, I also had to have on hand a change of clothes and a urinal bottle.

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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