JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ZITMAN -v- ZITMAN [2023] WASC 135
CORAM: TOTTLE J
HEARD: 14 MARCH 2023, 12 & 13 APRIL 2023
DELIVERED : 2 MAY 2023
FILE NO/S: CIV 2168 of 2021
BETWEEN: PEGGY ZITMAN
Plaintiff
AND
LOUELLA DENISE ZITMAN as executrix of the estate of WILLEM ZITMAN
First Defendant
LOUELLA DENISE ZITMAN
Second Defendant
Catchwords:
Succession - Wills - Inheritance - Application under s 6(1) of the Family Provision Act 1972 (WA) for further and better provision from the testator's estate - Whether gift under the will makes adequate provision for the proper maintenance, support, education or advancement in life for the plaintiff - Turns on own facts
Legislation:
Family Provision Act 1972 (WA), s 6(1), s 7(1)(c)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | A Spencer |
| First Defendant | : | S Patrick |
| Second Defendant | : | PG McGowan |
Solicitors:
| Plaintiff | : | Solomon Hollett Lawyers |
| First Defendant | : | Alto Legal Pty Ltd |
| Second Defendant | : | Haynes Leeuwin |
Case(s) referred to in decision(s):
Blendell v Byrne [2019] NSWSC 583
Bondelmonte v Blanckensee [1989] WAR 305;
Bosch v Perpetual Trustee Co [1938] AC 463
Butcher v Craig [2009] WASC 164
Christie v Manera [2006] WASC 287
Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Grant v Roberts [2019] NSWSC 843
Hawkins v Prestage (1989) 1 WAR 37
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
Lathwell v Lathwell [2008] WASCA 256
Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Salmon v Osmond [2015] NSWCA 42
Taylor v Farrugia [2009] NSWSC 801
TOTTLE J:
Introduction
In these proceedings the plaintiff, one of the five surviving children of the late Willem Zitman (Bill), seeks an order pursuant to s 6 of the Family Provision Act 1972 (WA) (the Act) that adequate provision be made for her proper maintenance, support, education and advancement in life out of her father's estate (the Estate). Intending no disrespect, I will follow the practice adopted at the trial, and will refer to members of the Zitman family by their first names.
After payment of pecuniary legacies of $100,000 to each of Peggy and her brother Paul, the net value of the residue of the Estate is approximately $340,000.…
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- AGLC
- Zitman v Zitman [2023] WASC 135
- Case
- [2023] WASC 135
- Decision Date
CaseChat Overview and Summary
The court's decision was based on a two-stage test. The first stage required the court to determine whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, support, education and advancement in life of the claimant. The court found that the $100,000 legacy to Peggy did not constitute adequate provision for her proper maintenance, support, education or advancement in life. The second stage involved the exercise of discretion, taking into account the relevant facts as they existed at the time of making the order. The court considered the relevant facts, including Peggy's financial position, the strength of her moral claim on the estate, and the value of the estate. The court decided that adequate provision for Peggy's proper maintenance, support, education or advancement in life required that the provision made for her out of the estate be increased by $100,000.
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
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