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Zitman v Zitman

Zitman v Zitman

Case [2023] WASC 135 2 May 2023

Adequate Provision

Proper Maintenance

Family Provision Act 1972 (WA)

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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
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

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.…

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 Zitman v Zitman

Details

AGLC: Zitman v Zitman [2023] WASC 135
Case: [2023] WASC 135
Decision Date

CaseChat Overview and Summary

Peggy Zitman, one of five surviving children of the late Willem Zitman, sought an order under s 6 of the Family Provision Act 1972 (WA) that adequate provision be made for her proper maintenance, support, education and advancement in life out of her father's estate. Willem left a will which provided that the residue of his estate be held on trust for his wife Louella, and if she predeceased him, on trust for his sons Xavier, Roury, and Storm as tenants in common. Peggy sought an order for the entirety of the residue of the estate to be converted into cash and paid to her so that she can buy an apartment. The court found that the pecuniary legacy of $100,000 left to Peggy did not constitute adequate provision for her proper maintenance, support, education or advancement in life. The court considered that Peggy had a moral claim on the estate, but the complete breakdown in the relationship between her and her father significantly reduced her claim. 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.

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.

Orders