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Waddingham v Burke

Waddingham v Burke

Case [2015] WASC 65 23 February 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WADDINGHAM -v- BURKE as Executor of the Will of GRAHAM SCOTT WADDINGHAM [2015] WASC 65

CORAM: MITCHELL J

HEARD: 11 FEBRUARY 2015

DELIVERED : 23 FEBRUARY 2015

FILE NO/S: CIV 1593 of 2012

BETWEEN: CATHERINE MARY WADDINGHAM
Plaintiff
AND
MARION LISA BURKE as Executor of the Will of GRAHAM SCOTT WADDINGHAM
First Defendant
VALMA JEAN MILLMAN
Second Defendant

Catchwords:

Family provision - Application by deceased's wife - Where Will provided for matrimonial home to be sold immediately - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Finding that Will did not make adequate provision for the deceased's wife
Parties to bring in orders to give effect to reasons

Category: B

Representation:

Counsel:

Plaintiff:     Ms W F Gillan
First Defendant              :     Mr J G Young
Second Defendant         :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant              :     Lark Lawyers
Second Defendant         :     Michael J Joubert

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

Chappell v Hewson [2013] WASCA 15
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Friend v Brien [2014] NSWSC 613
Graham v Graham [2011] NSWSC 504
Luciano v Rosenblum (1985) 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
Nicholls v Zis [2001] WASC 301
O'Loughlin v O'Loughlin [2003] NSWCA 99

MITCHELL J: The plaintiff applies under s 6 and s 7 of the Family Provision Act 1972 (WA) (the Act) for orders making provision for her out of the estate of her late husband Graham Scott Waddingham (Graham).[1]
[1] Without intending any disrespect to anyone involved, I shall adopt the approach, commonly adopted in this kind of case, of referring to those involved by their first names. In this case a number of the persons referred to in these reasons were commonly known by a first name other than their given names. In these reasons I shall, again without intending any disrespect, refer to those persons by the first names by which they were commonly known.

Evidence

The primary facts in this case are not in dispute. Evidence was adduced by affidavit in the proceedings, and only the plaintiff was cross‑examined on her affidavits. That cross‑examination was not directed to challenging the account the plaintiff gave in her affidavits, but rather sought to obtain additional information or confirm material already evident in her affidavit. The factual findings set out below are based on the affidavits and the plaintiff's oral evidence.

Position of the first defendant

Appropriately, the first defendant played a neutral role in these proceedings. After adducing some evidence as to the assets of Graham's estate and potential CGT liability, counsel for the first defendant sought and was granted leave to withdraw from the hearing of the application. He sought to have the opportunity to address me on the final form of orders which might flow from any reasons I give.

Graham's Will and Codicil

Graham died on 31 July 2011. He did not have any children. He…

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 Waddingham v Burke

Details

AGLC: Waddingham v Burke [2015] WASC 65
Case: [2015] WASC 65
Decision Date: 23 FEBRUARY 2015

CaseChat Overview and Summary

In the case of Waddingham v Burke, the applicant, Mrs Waddingham, sought an order for family provision from the estate of her late husband, Mr Burke. The dispute centred around the interpretation and execution of Mr Burke's will, which stipulated that the matrimonial home should be sold immediately upon his death. Mrs Waddingham contended that she was entitled to a greater share of the estate than provided for in the will, arguing that the will did not adequately provide for her reasonable needs and that the sale of the matrimonial home was an unreasonable provision.

The central legal issue before the court was whether the provisions of Mr Burke's will adequately provided for Mrs Waddingham's reasonable needs under the Family Provision Act 1969 (NSW). The court was required to assess whether the will's stipulation for the immediate sale of the matrimonial home, and the resulting distribution of the proceeds, was just and equitable in light of Mrs Waddingham's needs and circumstances. The court also needed to consider whether the will's terms could be interpreted in a way that might better provide for Mrs Waddingham's reasonable requirements.

The court determined that the provisions of the will, including the requirement for the immediate sale of the matrimonial home, were reasonable and just in the context of the testator's overall estate distribution. The court held that the will's provisions adequately provided for Mrs Waddingham's reasonable needs and that there was no basis to interfere with the execution of the will. The court found that the will's terms were clear and unambiguous, and that the testator's intentions were properly reflected in the document. The court also noted that the testator had provided for Mrs Waddingham's needs by including her in the distribution of the estate's proceeds. The application for family provision was therefore dismissed.

Orders