Whiteford v Crofts
[2025] WASC 177
•14 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WHITEFORD -v- CROFTS [2025] WASC 177
CORAM: WHITBY J
HEARD: ON THE PAPERS
DELIVERED : 14 MAY 2025
FILE NO/S: CIV 1942 of 2023
BETWEEN: ADDOLORATA WHITEFORD
Plaintiff
AND
EMMA KIRSTY CROFTS as executor of the will of DAVID NEILL LIVINGSTONE
First Defendant
EMMA KIRSTY CROFTS
Second Defendant
REBECCA KATE LIVINGSTONE
Third Defendant
Catchwords:
Family provisions and maintenance - Application by de facto spouse - Whether deceased made adequate provision for the proper maintenance of his spouse by his will - Application under s 6(1) Family Provision Act 1972 (WA) - In‑principle agreement reached between parties
Legislation:
Family Provision Act 1972 (WA)
Result:
Orders made for further provision from the estate of the deceased to the plaintiff in terms of memorandum of consent orders executed on 4 April 2025
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance (on the papers) |
| First Defendant | : | No appearance (on the papers) |
| Second Defendant | : | No appearance (on the papers) |
| Third Defendant | : | No appearance (on the papers) |
Solicitors:
| Plaintiff | : | McFarlane Lawyers |
| First Defendant | : | Hall & Wilcox (Perth) |
| Second Defendant | : | Hall & Wilcox (Perth) |
| Third Defendant | : | Croftbridge |
Case(s) referred to in decision(s):
Dean v Collins [No 2] [2015] WASCA 151
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Luciano v Rosenblum (1985) 2 NSWLR 65
Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148
WHITBY J:
Introduction and summary
On 22 August 2023, the plaintiff commenced proceedings by originating summons seeking an order for further provision from the estate of her de facto partner, David Neill Livingstone (the Deceased) pursuant to s 6(1) of the Family Provision Act 1972 (WA) (Act). The plaintiff's claim is supported by her affidavit sworn on 29 September 2023.
The parties have reached an in‑principle agreement in relation to the distribution of the Deceased's estate and have filed consent orders seeking to amend the Deceased's will dated 23 June 2018 (Will) as if it had been amended by codicil. The plaintiff relies upon the affidavit of Louella Morgan McFarlane sworn on 11 April 2025 in support of the consent orders.
The parties have agreed that the matter be determined on the papers.
Background
The Deceased had two children to his ex‑wife, being:
(1)Emma Kristy Crofts, the second defendant; and
(2)Rebecca Kate Livingstone, the third defendant.
In December 2008, the Deceased commenced a relationship with the plaintiff.
During the plaintiff's relationship with the Deceased, they lived at various properties including:
(1)Eudora Way, North Coogee, Western Australia from 2010 to 2017 (Deceased's home);
(2)Oxburgh Link, Success, Western Australia from 2011 to 2019 (the plaintiff's home); and
(3)Localita Crugnaleta 11, Varco Sabino, Lazio, Italy from 2018 to 2022 (Rome Property).
The Deceased was the registered proprietor and owner of the Rome Property.
The plaintiff and the Deceased shared living expenses, including the cost of furnishing and renovating the properties, as well as food, utility and holiday expenses. They would pay each other in cash or by electronic bank transfer and had access to each other's bank accounts.
In June 2015, the Deceased proposed to the plaintiff. The Deceased and the plaintiff discussed marriage ceremony arrangements but did not settle on a suitable date.
On 11 June 2022, the Deceased died in Rome, Italy.
Up until the Deceased's death, he was in a relationship with the plaintiff. The Deceased and the plaintiff were de facto partners for approximately 13 years and 6 months.
On 22 February 2023, probate of the Deceased's Will was granted to the first defendant.
The Will provides, by cl 11:
I bequeath to Addolorata Whiteford my 50% share of the property located at Varco Sabino, Rieti, Lazio, Italy.
The property consists of a domestic dwelling on three particles of land in the Commune of Varco Sabino. These particles of land are numbered 15, 78 and 79 and are covered by Folio 3 in the Varco Sabino Commune.
I also bequeath to Addolorata Whiteford my 50% share in a separate parcel of land which has an area of approximately 1.6 hectares consisting of particles 101 and 176 covered by Folio 4 in the commune of Varco Sabino. In addition I bequeath to Addolorata Whiteford my share of any possessions located at Varco Sabino including but not limited to furniture, chattels, motor vehicles etc. Any bank accounts in my name in Banks located in the Republic of Italy are also bequeathed to Addolorata Whiteford in entirety.
The Will provides that the residuary of the Deceased's estate be shared equally between the second and third defendants.
The first defendant filed an affidavit sworn on 8 March 2025 verifying the assets and liabilities of the Deceased's estate.
The parties have reached an in‑principle settlement by a deed of family agreement dated 20 March 2025[1] pursuant to which:
(1)all the Deceased's Italian assets, real and personal, will be transferred to the plaintiff;
(2)the sum of $110,000 will be paid the plaintiff from the Deceased's superannuation fund in her capacity as his de facto partner; and
(3)the balance of the Deceased's estate will be divided equally between the second and third defendants.
[1] Affidavit of Louella McFarlane sworn 11 April 2025, annexure LMM1.
On 4 April 2025, the parties executed a memorandum of consent orders seeking the following order:[2]
[2] Affidavit of Louella McFarlane sworn 11 April 2025, annexure LMM3.
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 from the Estate by way of an alteration to the distribution of the Estate such that it be distributed as if the Will had been amended by codicil (in accordance with section 10 of the Act) so as to delete clause 13 of the Will in its entirety and to delete clause 11 of the Will and replacing it with the following clause:
'11.I bequeath to Addolorata Whiteford of 3 Oxburgh Link Success in the State of Western Australia:
(a)All my interest and rights in the property located at Varco Sabino, Rieti, Lazio, Italy and described as Localita Crugnaleta 11, Varco Sabino, Lazio 02020, Italy. The property consists of a domestic dwelling on three particles of land in the Commune of Varco Sabino (Residence). These particles of land are numbered 15, 78 and 79 and are covered by Folio 3 in the Varco Sabino Commune.
(b)Any interest and rights I may have at the date of my death in a separate parcel of land which has an area of approximately 1.6 hectares consisting of particles 101 and 176 covered by Folio 4 in the Commune of Varco Sabino.
(c)All my possessions located in the Residence including but not limited to furniture and chattels.
(d)Any motor vehicles owned by me including my 17 HP Peugeot 2008 Licence Plate EP351JV and located in Italy.
(e)Bank accounts in my name located in Italy.'
2.Upon the Court making an order in the terms set out in paragraph 1 hereof:
(a)The First Defendant shall deliver up to the Probate Registry the grant of probate for the purpose of inclusion of these orders with the request that the address of the Deceased on the probate be amended to read:
'The Estate of David Neill LIVINGSTONE late of Localita Crugnaleta 11, Varco Sabino, Lazio 02020, Italy.'
Legal principles
The court cannot make the orders agreed by the parties unless it is satisfied that the jurisdiction conferred by s 6(1) of the Act is enlivened.[3]
[3] Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148 [7] (Le Miere J).
The principles outlining the operation of s 6(1) of the Act are uncontentious and have been considered by the Court of Appeal on numerous occasions. Recently, the principles were outlined by the Court of Appeal in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod.[4] I adopt those principles without repeating them.
[4] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [43] ‑ [50] (Quinlan CJ, Vandongen JA & Seaward J).
In summary, the court must engage in the following two‑stage process when considering a claim under s 6(1) of the Act:
(1)the first stage is to determine whether the claimant was left without adequate provision for his or her proper maintenance, support, education or advancement in life - this is referred to as the jurisdictional question; and
(2)the second stage only arises if the first stage is satisfied and involves the exercise of the court's discretion to make an order for such provision as the court thinks fit out of the Deceased's estate for the proper maintenance, support, education or advancement in life of the claimant.
The first stage is determined at the date of death of the deceased and the second stage is determined at the date of the order made by the court.
In undertaking the first stage assessment, the court has regard to, amongst other things:
(1)the claimant's financial position;
(2)the size and nature of the estate;
(3)the totality of the relationship between the claimant and the deceased; and
(4)the relationship between the deceased and other persons who have legitimate claims on his bounty.[5]
[5] Dean v Collins[No 2] [2015] WASCA 151 [24] (Martin CJ, Buss JA & Chaney J).
In undertaking the second stage assessment, in relation to claims by a spouse (including a de facto spouse) there is a general rule (which is flexible depending upon the circumstances, nature and length of the relationship) that a spouse is entitled to have a home, income to enable them to live in the style to which they are accustomed, and to provide them with a fund to meet unforeseen contingencies.[6]
[6] Luciano v Rosenblum (1985) 2 NSWLR 65.
Disposition
The plaintiff was born on 30 June 1963 and is now 62 years of age. She was in a continuous de facto relationship with the Deceased from December 2008 to the date of his death on 11 June 2022.
Prior to his relationship with plaintiff, the Deceased was married once and had two children from that marriage - the second and third defendants. The second defendant was born on 5 February 1984 and is now aged 41 years. The third defendant was born on 23 January 1986 and is now aged 39 years.
The Deceased had no other children during his lifetime. The second and third defendants have made no claim for further provision in the proceedings and there is no other person who has a statutory right to make a claim pursuant to the Act.
The Deceased had been divorced for many years when he met the plaintiff in 2008.
The Rome Property bequeathed to the plaintiff by cl 11 of the Will is the only provision made for the plaintiff by the Deceased. There are no bank accounts in the Deceased's name in Italy with funds. The Rome Property is valued at €95,000 (which equates to approximately $155,553 as at 26 August 2022).
The plaintiff works part‑time as a clerical officer at the Department of Justice. At the time of the Deceased's death, the plaintiff was earning a net fortnightly wage of $1,931.41 - this was less than her estimated fortnightly expenses and outgoings. At the time of the Deceased's death, the plaintiff estimated that her total assets were $669,852 including her residence worth $560,000. The plaintiff also had $48,661.46 in superannuation. The plaintiff had no liabilities.
I am satisfied, that in considering the first stage of the process, that the Will failed to make adequate provision for the plaintiff as at the date of the Deceased's death. I am so satisfied, having regard to:
(1)the age and needs of the plaintiff;
(2)the modest size of the Deceased's estate;
(3)the nature and length of the relationship between the Deceased and the plaintiff; and
(4)the nature of the second and third defendants' competing claims on the Deceased's bounty.
I therefore turn to the second stage of the process.
At the date of the plaintiff's affidavit sworn on 29 September 2023, her total assets had increased to $786,347 (primarily as a result of an increase in the value of her residence) and she had a liability of $9,000 to her lawyers. The plaintiff's fortnightly income remained at $1,931.41 which was still exceeded by her estimated fortnightly liabilities.
The plaintiff does not have private health cover and suffers from lower back pain for which she requires regular physiotherapy.
The plaintiff has a modest amount of savings. In my view, the plaintiff does not have an adequate buffer for contingencies as she ages. The plaintiff is now 62 years old and her remaining working life is diminishing.
The total value of the Deceased's assets in Australia (including superannuation) at the time of death were $657,078.30 and his assets in Italy had an estimated value of $155,553.26. The Deceased's estate is relatively modest in size.
The in‑principle settlement makes provision to the plaintiff of the Deceased's Italian assets (including the Rome Property) and the amount of $110,000. I am of the view that this provision will provide the plaintiff with a degree of financial security, will permit her to continue to live the lifestyle she and the Deceased had shared together during their relationship and that it will provide her with a buffer to meet any unexpected contingencies.
Further, the second and third defendants will receive the balance of the Deceased's estate worth approximately $547,078 ($273,539 each).
I am satisfied that, in the exercise of my discretion, it is proper to make orders in the terms sought by the parties so as to make adequate provision for the plaintiff's proper maintenance, support, education or advancement in life under s 6 of the Act.
Conclusion and orders
For these reasons, I make orders in terms of the memorandum of consent orders executed on 4 April 2025.
In those orders, the parties also seek an order to correct the address of the Deceased on the grant of probate.
Pursuant to s 14(7) of the Act, the court may give such consequential directions as it thinks fit for the purpose of giving effect to an order made under the Act. I therefore make the order sought to amend the grant of probate to correct the address of the Deceased.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
14 MAY 2025
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