CROTHERS -v- CAHILL [2025] WASC 478 (12 November 2025)

1. The Deceased's three children are the defendants in this action.
2. In December 2014, the Deceased met Ms Crothers. The Deceased worked as a truck driver and Ms Crothers worked as a school teacher.
3. On or about February 2015, the Deceased and Ms Crothers began living together as a de facto couple at a house owned by the Deceased in Withers, Bunbury (Withers Property).
4. In late 2017, the Deceased sold the Withers Property and the Deceased and Ms Crothers purchased 7 Roman Road, Bunbury (Roman Road Property) as tenants in common in equal shares.
5. The Deceased and Ms Crothers renovated the Roman Road Property, sharing the costs of the renovation.
6. In 2018, Ms Crothers sold a property she owned in Nannup and, from the proceeds of that sale, paid $170,000 in reduction of the mortgage over the Roman Road Property.
7. In late 2018, approximately one year after purchasing the Roman Road Property, the Deceased and Ms Crothers paid off the Roman Road Property mortgage.
8. On 4 July 2024, the deceased died leaving the Will.
9. On 19 August 2024, probate of the Will was granted to Ms Cahill.
10. The Will provides inter alia, that:

(1) Ms Cahill is appointed as the executor and trustee of the estate (Trustee), and the Deceased's sons are appointed as substitute executors;

(2) the Trustee will permit Ms Crothers to reside in the Roman Road Property for 10 years following the Deceased's death as long as she makes the Roman Road Property her primary place of residence, and pays to keep, maintain and insure the Roman Road Property;

(3) after Ms Crothers' right to reside determines, the Roman Road Property is to be divided into three equal parts and distributed equally amongst the Deceased's three children; and

(4) subject to debts and expenses, the residue of the Deceased's estate is to be divided into three equal parts and distributed equally amongst the Deceased's three children.

1. On 30 January 2025, Ms Crothers commenced this proceeding.
2. On 21 July 2025, the parties to the proceedings signed a deed of settlement and release (Deed). The Deed provides that, in return for Ms Crothers paying $150,000 to the Deceased's estate, Ms Crothers is transferred the 50% share of the Roman Road Property which forms part of the residuary of the Deceased's estate.
3. On 9 October 2025, the parties executed a memorandum of consent orders in the following terms:

1. Pursuant to s 6 of the Family Provision Act (WA) ('Act'), provision be made for the proper maintenance, support and advancement in life of the plaintiff, Vanda Crothers from the estate of the late Robin Geoffrey Tarrant ('Estate'), by way of an alteration to the distribution of the Estate such that it be distributed as if the Will of Robin Geoffrey Tarrant made on 20 June 2020 ('Will') had been amended by codicil (in accordance with s 10 of the Act) to:

(a) Delete clauses 7, 8, 9 and 10;
>
> (b) Insert a new clause 7 immediately after clause 6 reading:

1. I give to VANDA CROTHERS my share in the land known as 7 Roman Road, Bunbury, Western Australia, being more particularly described as Lot 42 on Diagram 31443 and being the whole of the land comprised in Certificate of Title Volume 1310 Folio 516.
2. A certified copy of these orders be included in the Probate and, within 7 days, the first defendant do produce the Grant to the Court for that purpose.
3. Such other order as the Court thinks fit.
4. There be no order as to costs.

1. The court cannot make the orders agreed by the parties unless it is satisfied that the jurisdiction conferred by s 6(1) of the Act is enlivened.[1]
2. The principles outlining operation of s 6(1) of the Act are uncontentious and have been considered by the Court of Appeal on numerous occasions. Recently, the principles were outlined by the Court of Appeal in Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod.[2] I adopt those principles without repeating them.
3. In summary, the court must engage in the following two‑stage process when considering a claim under s 6(1) of the Act:

(1) the first stage is to determine whether the claimant was left without adequate provision for his or her proper maintenance, support, education or advancement in life - this is referred to as the jurisdictional question; and

(2) the second stage only arises if the first stage is satisfied and involves the exercise of the court's discretion to make an order for such provision as the court thinks fit out of the deceased's estate for the proper maintenance, support, education or advancement in life of the claimant.

1. The first stage is determined at the date of death of the deceased and the second stage is determined at the date of the order made by the court.
2. In undertaking the first stage assessment, the court has regard to, amongst other things:

(1) the claimant's financial position;

(2) the size and nature of the estate;

(3) the totality of the relationship between the claimant and the deceased; and

(4) the relationship between the deceased and other persons who have legitimate claims on his bounty.[3]

1. In undertaking the second stage assessment, in relation to claims by a spouse (including a de facto spouse) there is a general rule (which is flexible depending upon the circumstances, nature and length of the relationship) that a spouse is entitled to have a home, income to enable them to live in the style to which they are accustomed, and to provide them with a fund to meet unforeseen contingencies.[4]

1. Ms Crothers was born in Surrey, England on 25 April 1960 and is now 64 years of age. She has been an Australian citizen since 1982.
2. Ms Crothers met the Deceased in late December 2014. They were in a continuous de facto relationship from about February 2015 to the date of his death on 4 July 2024.
3. Prior to his relationship with Ms Crothers, the Deceased had three children. The second, third and fourth defendants are these children.
4. The Deceased had no other children during his lifetime. The second, third and fourth defendants have made no claim for further provision in the proceedings and there is no other person who has a statutory right to make a claim pursuant to the Act.
5. Ms Crothers works as a school teacher. At the time of the Deceased's death and in the financial year of 2023 ‑ 2024, she earned an annual taxable income of $72,375 (approximately $1,390 per week). As at 30 January 2025, Ms Crothers estimates her weekly expenditure is $1,084.96. This leaves her with a surplus of approximately $305 per week.
6. As at 30 January 2025, Ms Crothers estimates that her total assets are $1,149,007.30, including her half share of the Roman Road Property and her property in Sussex Street. Ms Crothers estimates her total liabilities are $199,275.30, which is comprised of a mortgage and credit card debt.
7. The Deceased's net estate, as at 4 July 2024, was valued at approximately $519,084.74. The half share of the Roman Road Property was valued at $280,000. On 3 November 2025, the net value of the Deceased's estate was $495,342.80 with the half share of the Roman Road Property valued at $347,000.
8. Ms Crothers plans to sell her house on Sussex Street and pay off the mortgage over that property. She has three children from her previous marriage. Her daughter Katie and Katie's 6‑year‑old son live in the Sussex Street house. Katie is not currently employed.
9. I am satisfied that, in considering the first stage of the process, the Will failed to make adequate provision for Ms Crothers as at the date of the Deceased's death. I am so satisfied, having regard to:

(1) Ms Crothers' age and her needs;

(2) the modest size of the Deceased's estate;

(3) the nature and length of the relationship between the Deceased and Ms Crothers; and

(4) the nature of the competing claims on the Deceased's bounty.

1. I therefore turn to the second stage of the process.
2. Ms Crothers has type 2 diabetes and suffers complications from the condition that require medication and monitoring. Ms Crothers also has diabetic retinopathy - an eye condition - for which she takes eye drop medication. Ms Crothers has had three operations for endophthalmitis.
3. In my view, Ms Crothers does not have an adequate buffer for contingencies given she is 64 years old and her remaining working life is diminishing.
4. The Deceased's estate is modest in size.
5. The Deed provides that Ms Crothers receives the Deceased's half of the Roman Road Property, in exchange for Ms Crothers paying the Deceased's estate $150,000. The effect of this is that Ms Crothers has a secure place of residence and, as at 3 November 2025, a net increase in her assets of $197,000.
6. I am of the view that this provision will provide Ms Crothers with a degree of financial security, will permit her to continue to live the lifestyle she and the Deceased had shared together during their relationship and that it will provide her with a buffer to meet any unexpected contingencies.
7. I am satisfied that, in the exercise of my discretion, it is proper to make orders in the terms sought by the parties so as to make adequate provision for Ms Crothers' proper maintenance, support, education or advancement in life under s 6 of the Act.

1. For these reasons, I make orders in terms of the memorandum of consent orders filed 9 October 2025.

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

[1] Schaechtele v Otto Wilhelm Schaechtele as Executor of the Will of Maria Regina Grundner‑Schaechtele [2008] WASC 148 [7] (Le Miere J).

[2] Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [43] - [50] (Quinlan CJ, Vandongen JA & Seaward J).

[3] Dean v Collins [No 2] [2015] WASCA 151 [24] (Martin CJ, Buss JA & Chaney J).

[4] Luciano v Rosenblum (1985) 2 NSWLR 65.