Wilderspin v Dale Lorene Croker as executor of the will of Clive Eric Wilderspin

[2024] WASC 25

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WILDERSPIN -v- DALE LORENE CROKER as executor of the will of CLIVE ERIC WILDERSPIN [2024] WASC 25

CORAM:   FORRESTER J

HEARD:   ON THE PAPERS

DELIVERED          :   12 FEBRUARY 2024

FILE NO/S:   CIV 1056 of 2024

BETWEEN:   CRAIG CLIVE WILDERSPIN

Plaintiff

AND

DALE LORENE CROKER as executor of the will of CLIVE ERIC WILDERSPIN

First Defendant

DALE LORENE CROKER as beneficiary of the estate of CLIVE ERIC WILDERSPIN

Second Defendant

DANE MICHAEL ROYSTON WILDERSPIN as beneficiary of the estate of CLIVE ERIC WILDERSPIN

Third Defendant

Catchwords:

Succession - Application by deceased's son for an order under s 6(1) of the Family Provision Act 1972 (WA) - Whether disposition of the estate provided by the deceased's will makes adequate provision for maintenance, support and advancement of life - Settlement - Application to vary deceased's will as agreed by the parties - Discretion of the court

Legislation:

Family Provision Act 1972 (WA)

Result:

Orders made so as to give effect to the settlement between the parties

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Solomon Hollett Lawyers
First Defendant	:	P A Martino
Second Defendant	:	P A Martino
Third Defendant	:	P A Martino

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

Schaechtele v Schaechtele [2008] WASC 148

FORRESTER J:

Introduction

1. The plaintiff has applied by originating summons for an order that the court make provision for him out of the estate of the late Clive Eric Wilderspin (Estate) pursuant to s 6(1) of the Family Provision Act 1972 (WA) (the Act) on the ground that he was a child of the deceased and there has been inadequate provision for his proper maintenance, support, education or advancement in life from the will of the deceased.[1]

   [1] Plaintiff's Originating Summons filed 19 January 2024, 2.

2. The deceased died on 13 November 2021.  By consent, and having regard to affidavit material filed in support, on 18 January 2024 I ordered that the time in which the plaintiff was entitled to make an application under the Act be extended to 1 February 2024.  The application is therefore within time.

Parties have consented to orders

1. The approach to be taken where the parties have reached an agreement in relation to proceedings under the Act was summarised by Le Miere J in Schaechtele v Schaechtele.[2]  In such a case, provided the court is satisfied that the plaintiff appears to have a proper basis for his or her claim, the court will usually make orders to give effect to the settlement.  However, the decision remains one for the court's discretion.

   [2] Schaechtele v Schaechtele [2008] WASC 148 [4] ‑ [6].

2. Pursuant to s 6(1) of the Act, the court only has jurisdiction to make an order if it is of the opinion that the disposition of the Estate, as provided for by the deceased's will, is not such as to make adequate provision for the proper maintenance, support, education or advancement in life of the plaintiff.

Factual background

1. The deceased died on 13 November 2021, at the age of 91 years.  The plaintiff, who was born in April 1957 and is 66 years old, is the eldest of three children born to the deceased.  The plaintiff's sister and brother are aged 64 and 57 respectively.  There is no other person of whom the plaintiff is aware who might have a right to make a claim under the Act.[3]

   [3] Affidavit of Craig Clive Wilderspin sworn 4 September 2023 [4] - [5] (Wilderspin Affidavit).

2. The deceased left a will dated 29 January 2021 (the Will).  Probate of the Will was granted to the plaintiff's sister on 19 January 2022.

3. Pursuant to the Will, specific gifts were made to each of the deceased's grandchildren, and the deceased's property in Wembley Downs was gifted to the plaintiff's sister.[4]  The residue of the Estate is divided equally into three separate testamentary trusts.

   [4] Wilderspin Affidavit, 11 - 12 (CCW2).

4. One of the testamentary trusts named the plaintiff's sister as the Primary Beneficiary, Appointor and Trustee, and her children as additional Primary Beneficiaries.  Another named the plaintiff's brother as the Primary Beneficiary, Appointor and Trustee, and his children as additional Primary Beneficiaries.[5]

   [5] Wilderspin Affidavit, 17 (CCW2).

5. In the case of the third testamentary trust (the Fund), the plaintiff is named as the 'Income Beneficiary' and his siblings are named as 'Capital Beneficiaries'.[6]

   [6] Wilderspin Affidavit, 17 (CCW2).

6. Anthony Trovato is appointed as the Trustee and Appointor of the Fund (Trustee).[7]

   [7] Wilderspin Affidavit, 13, 15 (CCW2).

7. The Income Beneficiary is entitled to receive income from the Fund and the Capital Beneficiaries are entitled to receive the capital of the Fund.  The Trustee must pay or apply such of the Fund's income for a financial year as is available for distribution to, or for the benefit of, the Income Beneficiary.  However, the Trustee may comply with this requirement by 'setting aside' the payment in a separate account in the books of the Fund.[8]

   [8] Wilderspin Affidavit, 17, 19 - 20 (CCW2).

8. The Trustee may vest the Fund and pay the capital to a Capital Beneficiary at any time prior to the termination date, being a date determined by the Trustee and consented to by the appointor, but no later than 80 years from the date of the deceased's death.[9]

   [9] Wilderspin Affidavit, 15 (CCW2).

9. The combined effect of the terms of the Will is that the plaintiff has no entitlement to the capital of the Fund, and his entitlement to the income is subject to the Trustee's discretion as to 'setting aside' payments, and as to vesting the Fund.

Jurisdiction

1. The affidavit of the plaintiff sworn on 4 September 2023 sets out his personal circumstances at the date of the deceased's death, and as at the date of swearing the affidavit.

2. On the balance of that evidence, and having regard to the agreement of the defendants as established by the Consent Order filed on 22 January 2024, I am satisfied that the disposition of the Estate as effected by the Will is not such as to make adequate provision for the proper maintenance or support of the plaintiff.

Discretion

1. In considering whether to exercise the discretion to order further provision be made out of the Estate, the court is required to take into account the relevant facts as they exist at the time of making the order.  The court must be satisfied that provision should be made out of the Estate for the proper maintenance or support of the plaintiff.  However, where the matter has been the subject of an agreed settlement by the parties, and that settlement falls within the bounds of a reasonable exercise of discretion, the court should make orders which give effect to it.

2. The provision sought to be made by the settlement is that the plaintiff will receive a lump sum and a minimum regular monthly income from the Fund, with greater distributions if the income of the Fund allows.  Further, the Fund is to pay the plaintiff's medical expenses.

3. In the present case, having regard to the personal circumstances of the plaintiff, including his age, health, income earning capacity and financial circumstances, and the different provision for the plaintiff's sister (which the Will explains, in part) and his brother, I am satisfied that the terms of the resolution fall within the bounds of a reasonable exercise of discretion in this matter.  Accordingly, I will make the orders sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SI

Associate to the Honourable Justice Forrester

12 FEBRUARY 2024