Whiteford v Crofts - [2025] WASC 177

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…

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 Whiteford v Crofts

Details

AGLC: Whiteford v Crofts [2025] WASC 177
Case: [2025] WASC 177
Decision Date: 14 MAY 2025

CaseChat Overview and Summary

In the case of Whiteford v Crofts, the applicant, Whiteford, sought a declaration from the court that the deceased, Crofts, had not made adequate provision for her proper maintenance under the Family Provision Act 1972 (WA). The dispute arose out of the deceased's will, which the applicant argued did not provide sufficiently for her maintenance. The matter was heard in the Supreme Court of Western Australia.

The court was required to determine whether the deceased had made adequate provision for the applicant's proper maintenance in accordance with section 6(1) of the Family Provision Act 1972 (WA). This involved assessing the terms of the deceased's will and considering the financial circumstances of both the deceased and the applicant. The court also needed to evaluate the contributions made by the applicant to the deceased's estate and the overall fairness of the provision made.

The court examined the deceased's financial situation, the nature of the relationship between the applicant and the deceased, and the provisions made in the will. It considered the applicant's contribution to the estate and the extent to which she was reliant on the deceased. The court also took into account the in-principle agreement reached between the parties, which reflected the deceased's intention to provide for the applicant. Ultimately, the court found that the deceased had made adequate provision for the applicant's proper maintenance, and dismissed the application.

The court's final order was that the applicant's application under section 6(1) of the Family Provision Act 1972 (WA) was dismissed, and the court declared that the deceased had made adequate provision for the applicant's proper maintenance. This outcome was based on the assessment of the deceased's will, the financial circumstances of both parties, and the in-principle agreement reached between them.

Orders