Wiegand v Wiegand

[2012] WASC 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WIEGAND -v- WIEGAND [2012] WASC 32

CORAM:   McKECHNIE J

HEARD:   27 JANUARY 2012

DELIVERED          :   27 JANUARY 2012

FILE NO/S:   CIV 2292 of 2005

BETWEEN:   JOHN THOMAS WIEGAND

Plaintiff

AND

ROBERT LOUIS WIEGAND
Defendant
 

Catchwords:

Wills - Beneficiary refusing to bank cheque from trustee - Whether intention to disclaim the gift

Legislation:

Nil

Result:

Declaration that gift disclaimed

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     In person

Trustee:     Mr A P Herschowitz

Solicitors:

Plaintiff:     No appearance

Defendant:     In person

Trustee:     DLA Piper Australia

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

Nil

1. McKECHNIE J:  This action is of long standing, commencing by originating summons in 2005.  The relevant history in relation to the matter that has come before me is set out in the affidavit of Kenneth Robert Foggo dated 17 June 2011.  I do not propose to read or incorporate any of that into these short reasons other than to say that it is clear that the relationship between Mr Weigand and his brother has broken down and that Mr Weigand, in his comments to me this morning, remains deeply unhappy about aspects of the administration of the estate.

2. The matter I have to resolve, however, is in relation to what is sought by the trustee, Mr Foggo, which essentially is for certain orders which I consider I have power to make them under the Trustees Act 1962 (WA) s 90, and under the general power under O 58 r 29, if it is necessary to do justice in the case.

3. In essence, what the executor seeks is a declaration that Mr Robert Weigand has disclaimed his entitlement under the Will.  This morning Mr Weigand has quite clearly stated that he has disclaimed it.  He has told me that it is an insignificant amount not worth contending and that the amount can pass to his brother if he wants.  In answer to a direct question to me he has repeated these comments.  I am quite satisfied that Mr Robert Weigand has disclaimed his entitlement and the consequence is that the estate should now be wound up.

4. I am prepared to make orders in the minute forwarded by Mr Hershowitz, who appears for Mr Foggo, in orders 1, 2, 3, 5 and 6.  I am not prepared to make orders in relation to 4 because I do not have sufficient information as to whether such a blanket indemnity should be made and therefore leave that open.  If anybody wishes to challenge any aspect of the administration they may, if there is time, bring proceedings to do so.  I make no comment on the advisability or otherwise of that but otherwise would make the orders in terms of the summons.