Estate of ETHEL MAY LEWIS late of Bethanie Fields Age Care, 111 Eaton Drive, Eaton in the State of Western Australia, Home Duties (Dec)

BEVERLEY KAYE COLLINS and AVE ANNA LEWIS as Executors of the Estate of ETHEL MAY LEWIS

Family Provision Act 1972 (WA) - Claim by adult daughter not provided for in the deceased's will - Small estate - Turns on own facts

1 MASTER SANDERSON: This is the second plaintiff's application brought under the Family Provision Act 1972 (WA). (At the time the action was commenced the relevant legislation was the Inheritance (Family and Dependants Provision) Act 1972 (WA). There is no material difference between the earlier Act and the present legislation.) It is the second plaintiff's case the Will of Ethel May Lewis did not make adequate provision for her. (The heading of the action suggests more than one plaintiff. In fact there was a first plaintiff, Judith Ann Stokes, but her application was dismissed by consent on 27 August 2013.)

2 The second plaintiff is the daughter of Ethel May Lewis (the deceased). The deceased died on 11 May 2011. She had five children, the first plaintiff, the second plaintiff Vicki Joy Dean (Vicki), the second defendant Beverley Kaye Collins (Beverley), Ray Lewis and the firstnamed third defendant, Kerry Charles Lewis (Kerry). Ray Lewis has taken no part in the proceedings.

3 The deceased made a Will on 14 August 2002, some 8½ years before she died. In her Will the deceased made no provision for Judith, Vicki or Ray. The secondnamed third defendant, Ave Anna Lewis (Ave), is the wife of Kerry. By her Will the deceased left her estate in equal shares between Beverley and the third defendants.

4 Clause 3 of the deceased's Will is in the following terms:

I declare that the reason I have made no provision for such of my children as are not mentioned herein is that Kerry and Ave have in recent years devoted a considerable amount of time to helping me, and to a lesser extent so has Bev, and I feel it appropriate and fair to provide for these persons in the way in which I have.

5 The deceased's estate is small. The primary asset is a property located at Unit 2, 212 Spencer Street, Bunbury. Attempts have been made to sell the property but it has not as yet been sold. For probate purposes the defendants estimate the value of the deceased's unit at $240,000. The estate has a number of liabilities including unpaid rates and taxes, the cost of a headstone, legal fees and a Keystart housing loan. The defendants estimate these expenses at just over $28,000. Allowing for the fact this matter went to a full hearing it seems unlikely the estate will have a net value of much over $200,000.

6 Vicki is 60 years of age. She is unmarried and not in a relationship. She is employed parttime as an aged care worker at the Peter Arney Aged Care Facility in Salter Point. She works 39 hours per fortnight. She supplements her income by having livein student lodgers and by working weekend shifts. She has a degenerative lower back condition and osteoarthritis of a knee which will require surgery. Because of these problems she has reduced her working hours.

7 Vicki owns a parcel of land at 29 Isaac Moore Drive, Moore Park Beach, Queensland. She estimates its value at $149,000. That asset was received by her as part of a settlement of matrimonial proceedings with her exhusband. She has bank savings of $20,000, a modest vehicle and superannuation of $30,000. All of these details are taken from two affidavits sworn by her and which were marked exhibits 4 and 5.

8 Beverley is 63 years of age. She has been married since 1969. Her main asset is an interest in a house she shares with her husband. She values that asset at $200,000. (It is not entirely clear from the evidence whether that is the value of her half interest or the total value of the property. For present purposes I will assume it is the value of her half interest.) She says she has a mortgage of $125,000 and income of $28,000 per year. This income is derived from a small business she runs with her husband. She does not have any superannuation entitlement.

9 Kerry is 68 years of age. He has a residential property he shares with his wife which he values at $300,000. He has superannuation of $81,213.40. He has an income of $20,800 per annum. This is derived from a small business he runs with his wife.

10 Vicki, Beverley and Ave were crossexamined. The crossexamination revealed that each were slightly better off than was suggested by the affidavit material. For instance Vicki receives the income for taking in foreign student lodgers tax free. That is entirely proper - it is the way the scheme works. Kerry and Ave own a property in central Bunbury from which they run their business. There is nothing in the evidence to establish what that property would be worth and Ave, in her evidence, was unable to suggest a value.

11 Taken in the overall each the parties are of modest circumstances. The competing needs of each is obvious. They are ageing, they have limited assets and significant commitments. None has an amount of superannuation which will adequately provide for their needs. The real problem with this case is the estate is just not large enough to accommodate everyone's wishes.

12 The principles upon which an application such as this are to be determined were summarised recently by Pritchard J in Maas v O'Neill [2013] WASC 379. Her Honour said:

In order to decide whether the proposed settlement will be for Matthew's benefit, and that all relevant facts have been considered, it is necessary to bear in mind the principles governing applications under the Family Provisions Act. Ms Maas' application under that Act is brought pursuant to s 6(1) which permits an application to be made by certain persons (including, relevantly, a child of the deceased living at the date of his or her death) on the basis that the disposition of the deceased's estate effected by their will was not such as to make adequate provision from the estate for the applicant's proper maintenance, support, education or advancement in life. If the provision is inadequate, the Court has the discretion to make 'such provision as the Court thinks fit out of the estate for that purpose'. It is well established that s 6 thus encompasses a two stage process.

The question whether adequate provision was made for an applicant's proper maintenance, support, education or advancement in life involves, in effect, a jurisdictional question. In determining that question, it is necessary to consider an applicant's financial position, and his or her need for, and moral claim to, provision from the estate, the need and moral claims of other persons who have a legitimate claim upon the testator's bounty, and the size of the estate, as at the date of the testator's death. The terms 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provisions Act encompass not only provision for the supply of the necessaries of life, but also extend to provision over and above a mere sufficiency of means upon which to live, and may extend to provision which would enable a potential beneficiary to improve his or her prospects in life.

In exercising the discretion under s 6(1) of the Family Provisions Act, the question for the Court is what award would be adequate for the 'proper' maintenance, support, education or advancement of the applicant. The term 'proper' prescribes a standard, whereas the term 'adequate' is concerned with the quantum of the award. The propriety of a provision for an applicant is to be assessed by reference to all the circumstances. Determining the quantum of an award which would be adequate for the proper maintenance, support, education and advancement of an applicant is also a relative question, which requires consideration of the nature, extent and character of the estate and the other demands upon it. The exercise of discretion involves a consideration of the facts which exist at the time of the making of the order.

Section 6 of the Family Provisions Act confers a wide discretion on the Court at each stage of the two stage analysis [16] - [19].

13 As counsel for the defendants pointed out Vicki's claim is really based on what she says is the necessary provision for her advancement in life. In answering the jurisdictional question regard must be had to the size of the estate, the need and moral claim of Vicki and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testatrix.

14 Counsel for Vicki was at pains to point out when dealing with a small estate there is nothing in the legislation which requires a different approach. The court must still consider all of the relevant circumstances: See In Re Allen (dec); Allen v Manchester [1922] NZLR 218, 221 (Salmond J).

15 In my view Vicki has not satisfied the jurisdictional question. Her needs are no greater than the beneficiaries under the Will. There is no particular aspect of her circumstances which compels a decision the Will must be amended in her favour. Nor is there anything to suggest that she has a particular moral claim as that term is so often used in various judgments. In my view there is no reason why the Will should be disturbed.

16 In reaching that conclusion I have not paid any regard to cl 3 of the deceased's Will quoted above. It is simply not relevant to the determination of this application. Nor is there any conduct on the part of Vicki which could be regarded as disentitling. She appears to have been a loving daughter who visited her mother as and when she could. However, it remains the fact that Beverley, Kerry and Ave lived in the same area of the deceased and were able to visit her on a regular basis. Insofar as there is any dimension in this case which could give rise to a 'moral claim' it must rest with the defendants.

17 For the sake of completeness I should say had I have determined the jurisdictional question in favour of Vicki then in exercise of my discretion I would have divided the estate equally between Vicki and Beverley as to one third each and Kerry and Ave one third between them. To my mind there is no other way in which the matter could be fairly resolved.

18 On this based I would dismiss the second plaintiff's application. I will hear the parties as to costs.