Willis v Steven Edward Johnston as executor of the estate of Edward John Willis
[2024] WASC 130
•16 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: WILLIS -v- STEVEN EDWARD JOHNSTON as executor of the estate of EDWARD JOHN WILLIS [2024] WASC 130
CORAM: GLANCY J
HEARD: 26 MARCH 2024
DELIVERED : 26 MARCH 2024
PUBLISHED : 16 APRIL 2024
FILE NO/S: CIV 1133 of 2023
BETWEEN: TARA MARIE WILLIS
Plaintiff
AND
STEVEN EDWARD JOHNSTON as executor of the estate of EDWARD JOHN WILLIS
First Defendant
HONOR MICHELE WILLIS as beneficiary of the estate of EDWARD JOHN WILLIS
Second Defendant
JESSE WILLIS as beneficiary of the estate of EDWARD JOHN WILLIS
Third Defendant
Catchwords:
Succession - Application by Deceased's daughter for an order under s 6(1) of the Family Provision Act 1972 (WA) - Whether disposition of the estate provided by Deceased's Will makes adequate provision for maintenance, support and advancement of life - Settlement - Application to vary Deceased's Will agreed by parties - Discretion of the court - Application granted in terms of parties' agreement
Legislation:
Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application to vary terms of Deceased's Will granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms L Monk |
| First Defendant | : | Ms B Heiderich |
| Second Defendant | : | Mr R Spiegl |
| Third Defendant | : | In Person |
Solicitors:
| Plaintiff | : | Contested Wills And Probate Lawyers |
| First Defendant | : | Mayberry Hammond & Co |
| Second Defendant | : | Victoria Park Legal |
| Third Defendant | : | In Person |
Case referred to in decision:
Schaechtele v Schaechtele [2008] WASC 148
GLANCY J:
(This judgment was delivered extemporaneously on 26 March 2024 and edited from the transcript.)
Introduction
Ms Tara Marie Willis (Plaintiff) has applied by way of originating summons for an order that the court make provision for her out of the estate of the late Edward John Willis (Deceased) pursuant to s 6(1) of the Family Provision Act 1972 (WA) (FP Act) on the ground that she was a child of the Deceased and there has been inadequate provision for her maintenance, support education or advancement in life from the Deceased's will. As a child of the Deceased she is entitled to make the claim.[1]
[1] FP Act s 6(1) and s 7(1)(c).
The Deceased died on 3 July 2021.[2] Probate was granted on 19 August 2022.[3] The originating summons was filed on 9 February 2023. Accordingly, the application was commenced within time.[4]
[2] Grant of probate dated 19 August 2022 attached as Annexure TMW 2 to the Plaintiff's affidavit of 9 February 2023.
[3] Grant of probate dated 19 August 2022 attached as Annexure TMW 2 to the Plaintiff's affidavit of 9 February 2023.
[4] Claims must be commenced within six months of the grant of probate: FP Act s 7(2). The Originating Summons was amended on 14 July 2023.
Parties have consented
The parties have reached an agreement in relation to the proceedings under the Act. The third defendant, Jesse Willis (Third Defendant), is self‑represented. In order to ensure that O 42 r 8 of the Rules of the Supreme Court 1971 (WA) (RSC) was complied with, the Third Defendant was required to attend before me and provide his consent in person.
The approach which the court takes when parties have reached an agreement in relation to the proceedings under the FP Act was summarised by Le Miere J in Schaechtele v Schaechtele [2008] WASC 148 [4] ‑ [6]. In such cases, the court must be satisfied that the plaintiff appears to have a proper basis for their claim, and provided that is the case, the court will usually make the orders giving effect to the settlement. Nevertheless, the decision remains one for the court's discretion.
Pursuant to s 6(1) of the FP Act, the court has jurisdiction only when it is of the opinion that the disposition from the estate, as provided for by a 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
The factual background to this matter is set out in the Plaintiff's affidavits sworn on 17 February 2023 and 1 July 2023. They establish the following matters.
The Deceased died on 3 July 2021.
The Plaintiff was born on 27 January 1983 and is one of two children of the Deceased. The Plaintiff's sister, Ms Honour Michele Willis (Second Defendant), is the Deceased's elder child. She was 42 years of age.
The Second Defendant has one son, the Third Defendant.
The Plaintiff is unaware of any other person who may have a right to make a claim under the FP Act.
The Deceased left a will dated 22 June 2021 (Will). Probate of the Will was granted to Steven Edward Johnston (First Defendant) on 19 August 2022.
The terms of the Will provided that the Deceased's estate be distributed in the following manner:
(1)the property at 1407 Qualen Road, Gilgering, Western Australia, to the Second Defendant;
(2)the sum of $20,000 to Make a Wish Australia;
(3)the balance of his Westpac Term Deposit to the Second Defendant and the Third Defendant in equal shares;
(4)the 2003 Holden Acclaim motor vehicle to the Second Defendant; and
(5)the residue of his estate to the Second Defendant.
No provision is made for the Plaintiff by the Deceased's Will.
The executor, who is the First Defendant to the proceeding, has filed an affidavit dated 15 May 2023 which annexed a statement of the Deceased's assets and liabilities as at the Deceased's date of death and as at the 11 May 2023. The First Defendant also deposes that assets have not been transferred into the name of the executor or called into the estate pending finalisation of the Plaintiff's proceeding. He then sets out the payment which have been made from the Deceased's Westpac Bank account since his death. These are probate filing fees, legal fees and disbursements, insurance premiums for the Gilgering property and the motor vehicle.
Jurisdiction
The Plaintiff's affidavit of 17 February 2023 sets out her personal circumstances as at the date of the Deceased's death and as at the date of the making of the affidavit. The personal circumstances of her partner/de facto as at the date of the making of the affidavit are set out in the Plaintiff's affidavit of 1 July 2023.
On the basis of the Plaintiff's evidence, and having regard to the agreement of the parties established by the consent orders and the oral consent of the Third Defendant, 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
In considering whether to exercise the discretion to order (further) provision out of the estate of the Deceased, the court is required to take into account the relevant facts as the exist at the time of the making of 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 is the subject of an agreed settlement and that settlement falls within the bounds of reasonable exercise of discretion, the court should make orders which give effect to the terms of the agreed settlement.
The provision sought by the parties is that the Plaintiff will receive a lump sum of $179,000 from the Deceased's estate which, from the statement of assets and liabilities is valued at $1,272,510.57.
In this case, having regard to the Plaintiff's personal circumstances, including her age, income, earning capacity and financial circumstances and those of her partner, and the different provision made for the Plaintiff, the Second and Third Defendants, I am satisfied that the terms of the settlement fall within the bounds of a reasonable exercise of discretion in this matter.
There is nothing in the materials before me which would amount to conduct of the Plaintiff which would cause me to exercise my discretion to refuse to make adequate provision for her from the Deceased's estate. No such conduct is asserted by the Second or Third Defendants.
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.
FS
Associate to the Hon Justice Glancy
16 APRIL 2024
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