SUSAN PATRICIA KILKENNY as executrix of the estate of JOAN MARY KILKENNY

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : KILKENNY -v- KILKENNY [2017] WASC 127

Family Provision Act 1972 (WA) - Appeal - Claim by adult daughter for whole of estate - Where estate small - Where claimant had provided care for the deceased - Where other children and stepchildren of deceased had not adduced evidence of financial position - Whether primary court erred in assessing claimant's claim without considering whether an inference should be drawn that they have sufficient resources to meet their own needs - Whether error may be inferred on the basis that the primary decision to dismiss the application is unreasonable or plainly unjust - Turns on own facts

Family Provision Act 1972 (WA), s 6

Anderson v Teboneras [1990] VicRp 47; [1990] VR 527

Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14

Butcher v Craig [2010] WASCA 92

Christie v Manera [2006] WASC 287

Davison v Kempson [2018] VSCA 51

Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127

Golosky v Golosky [1993] NSWCA 111

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kennedy v Kennedy [2016] WASC 210

Kilkenny v Kilkenny [2017] WASC 127

Lemon v Mead [2017] WASCA 215

Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

Re Adamow (1989) 97 FLR 410

Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757

1. This is an appeal against the decision of Acting Master Strk in Kilkenny v Kilkenny[1] (primary decision).
2. The primary decision concerned an application by the appellant for an order under s 6 of the Family Provision Act 1972 (WA) that adequate provision be made out of the estate of her mother, Joan Mary Kilkenny (the deceased), for the appellant's proper maintenance, support, education and advancement of life.[2] The appellant sought orders that the whole of the deceased's estate be vested in her.[3]
3. The acting master dismissed the appellant's application. The appellant, in her capacity as a beneficiary,[4] now appeals against the primary decision. She seeks an order to the effect that the deceased's will be amended to provide that the only substantial asset of the estate, a property in Maddington, be left to her.
4. The parties to the appeal are the deceased's seven adult children (the appellant/first respondent, and the second - seventh respondents) and the deceased's late de facto partner's two adult children (the eighth and ninth respondents). From time to time in these reasons, for convenience and without any disrespect intended, reference will be made to the parties by their first names.
5. Of the nine respondents to the appeal, the fifth (Margaret), sixth (Bernadette) and seventh (Therese) filed a notice of intention to be heard, and appeared at the hearing of the appeal. They were all unrepresented. The appellant was represented by senior counsel at the hearing of the appeal.
6. The primary proceedings were heard by the acting master on 29 March 2017. The transcript of the primary proceedings indicates that the appellant appeared, unrepresented, but with a McKenzie friend, and that two of the deceased's children (Michael and Bernadette) appeared by counsel. The transcript also indicates that the other children of the deceased and the children of the deceased's de facto had indicated that they would abide by the decision of the court.[5] Bernadette filed an affidavit in the primary proceedings, but no other child (apart from the appellant) adduced evidence.[6]

1. The deceased died on 8 January 2014, at age 82. Her previous de facto partner was Mr Norman Alexander Wright. Mr Wright and the deceased owned certain property in Maddington (Maddington Property) as tenants in common in equal shares. Mr Wright died on 15 August 2009.[8]
2. Mr Wright's will, made on 25 February 2006, provided that the deceased have a life tenancy in the Maddington Property, and that upon her death, the reversion be divided between his two children and the deceased's seven children.[9]
3. In 2010, the deceased, and Mr Wright's son, Cameron, commenced proceedings claiming further provision from Mr Wright's estate. These proceedings were settled in 2012, and Mr Wright's will was amended accordingly. The deed of settlement recited that the deceased suffered from Alzheimer's, and that the appellant acted as her attorney pursuant to an enduring power of attorney dated 25 August 2005.[10]
4. The settlement was to the following effect: [11]
   1. The deceased would receive the unencumbered title to Mr Wright's 50% interest in the Maddington Property, so that she would then hold a 100% interest in the Maddington Property.
   2. The deceased would pay to Cameron the sum of $10,000.
   3. The deceased's children (the appellant and the first - seventh respondents to this appeal) would pay to the deceased, by way of loan repayable on demand, the $10,000 that the deceased had to pay to Cameron, plus a total of $54,482.11 in respect of the deceased's legal costs in bringing her claim.
   4. In relation to the total of $54,482.11, each of the deceased's children, other than Peter and Bernadette, would each pay (approximately) $5,000. Peter was to pay $9,227.08 and Bernadette was to pay $20,500.
5. The deceased made her will on 25 February 2006 and probate was granted on 15 January 2015 to the appellant as executor. The deceased gifted her jewellery to her four daughters, and gave the residue, after payment of her debts, to Mr Wright for the rest of his natural life, and thereafter to Mr Wright's two children and her seven children to be shared equally between them.[12]
6. The deceased left an estate, as at the date of her death on 8 January 2014, of the Maddington Property, household goods, effects and some cash.[13] The acting master accepted that the Maddington Property was valued at approximately $350,000. She also accepted that the estate's liabilities were approximately $60,000, making the estimated net current value of the estate to be about $295,000.[14] If the will were undisturbed, each beneficiary would receive a little over $32,000 each.[15] The appellant became, however, entitled to two-ninth shares in the deceased's estate (around $64,000), as she had acquired Peter's interest.[16]
7. In relation to the liabilities of the estate, the acting master found that:
   1. The appellant was herself a creditor of the estate in an amount of approximately $45,700.[17]
   2. Other legitimate expenses of the estate had not been properly quantified by the appellant in her capacity as executor.[18]
   3. The appellant had claimed that she was a creditor of the estate in respect of household expenses, in an amount exceeding $72,000, and wages due to her in caring for the deceased, in an amount exceeding $1.6 million.[19]
   4. There was no evidence to support the amounts referred to in point 3, and the acting master excluded them for the purposes of establishing the net value of the estate.[20]

1. The acting master recounted the evidence as follows.

1. The appellant's evidence included the following. The appellant was 57 years old at the date of the hearing (in March 2017). She had a troubled childhood and did not successfully complete her secondary education. She was employed as a permanent casual carer for children, but in about 2008 she left her employment to care for the deceased.[21]
2. The deceased resided in a nursing home from January 2007 to January 2009. In January 2009, the appellant removed the deceased from her nursing home, and the deceased came to live with the appellant and her husband in their Thornlie home. After Mr Wright died (in August 2009), the appellant and the deceased moved into the Maddington Property to prevent it from being sold, and to prevent having the proceeds distributed to the beneficiaries of Mr Wright's estate.[22]
3. Sometime after the deceased and the appellant moved into the Maddington Property, the appellant's marriage failed. The Thornlie home was sold in March 2013. The appellant received $233,652.42 from the proceeds of sale of the Thornlie property, and a share of household contents and personal effects.[23]
4. The appellant did not adduce evidence about her true financial position as at the date of the death of the deceased in January 2014.[24]
5. In an affidavit sworn in July 2015, the appellant said that at the time (July 2015 - some 20 months after the death of the deceased), she had a car worth about $4,000, superannuation worth about $11,000, and about $112,800 in the bank. At the hearing, her evidence was that she no longer had the $112,800 in the bank, as she 'had paid bills' and 'been on a couple of holidays'. The evidence was that she had holidays including trips to Phuket and Singapore in 2014, and a cruise from Rome to the Greek Islands, and other travels in Europe and Ireland in 2015.[25]
6. The appellant's evidence at the hearing was that she had experienced ill health from carpel tunnel syndrome for a few years from 1991, tennis elbow in 2015, panic attacks and, possibly, two heart attacks. No medical evidence was led.[26]
7. The appellant gave evidence that she did not know how hard it would be for her to get a job.[27]
8. The appellant continued living in the Maddington Property after the death of the deceased in January 2014. She did not own any land, and did not pay rent while residing with the deceased. Also she had not paid rent for living in the Maddington Property since the deceased's death. The appellant said she funded some of the deceased's living expenses from the proceeds of the sale of the Thornlie property.[28]

1. There was also other evidence, accepted by the acting master, that:[29]
   1. some of the maintenance costs of the Maddington Property were borne by some of the respondents;
   2. the deceased received a pension and, for at least some years prior to her death, had carers who attended to her three times a day to shower and dress her;
   3. an understanding had been reached between the family members that while the appellant continued to care for her mother, she would have at least five weeks of holidays each year, and that her siblings would contribute to paying her $1,800 toward a holiday allowance; and
   4. the appellant received a carer pension from 16 January 2009 to 15 April 2014, and a New Start Allowance from 16 April 2014 onwards.
2. There was no evidence as to the financial position of the second - ninth respondents other than searches (annexed to the appellant's affidavit sworn 25 November 2016) of the certificates of title to properties, which revealed that the second - ninth respondents' properties, other than Cameron's, were subject to mortgages.[30]

1. In determining whether adequate provision was made for the proper maintenance, support, education or advancement in life of the appellant, the acting master made the following findings and observations.
2. The acting master said that in determining the 'jurisdictional question', namely whether the deceased failed to make adequate provision for the appellant as the date of her death, reference should be made to four primary factors:[31]

(b) the appellant's needs and any moral claim that she has;

(d) the provision made by the deceased for the appellant.

1. The estate is a small one. The deceased left an estate in which the primary asset was the Maddington Property.[32]

1. As to the appellant's needs, the following factors weighed in favour of her meeting the jurisdictional threshold. As at the date of the deceased's death, the appellant was aged 53 years, she had separated from her husband, she was not in a de facto relationship, she had not worked since 2008, she received a carer pension, and she no longer owned a home.[33]
2. There was no evidence that the appellant was incapable of working as at the deceased's death on 8 January 2014. The appellant had left her work to care for the deceased, not due to ill health.[34]
3. It was difficult to obtain a clear picture of the appellant's true financial position when the deceased died. The acting master found that the appellant received $233,652.42 from the sale of her Thornlie home at some time within 10 months prior to the deceased's death. It could also reasonably be inferred that within that 10 month period prior to the deceased's death, the appellant would have had approximately $11,000 in superannuation.[35]
4. Whilst the appellant was in need of a place to live as at the date of the deceased's death, the acting master was not satisfied that this need could not be satisfied out of the appellant's own resources at that time. The acting master said there was no evidence the appellant could not afford rent or that her cash reserves were inadequate to satisfy her needs.[36]
5. The acting master ultimately concluded that:[37]

As at the date of death of the deceased, allowing for her entitlement to a one-ninth share of the deceased's residuary estate, she would have had available to her cash reserves of about $265,652.42, together with a modest amount of superannuation.

1. The sum of $265,652.42 referred to above appears to be the sum of $233,652.42 received from the sale of her Thornlie home (see [30] above), plus $32,000 under the will. The 'modest amount' of superannuation appears to be a reference to the sum of $11,000 (see [30] above).

1. As to the appellant's moral claim on the estate, the acting master said it appeared that she had a close relationship with the deceased, having lived with her for about five years prior to her death. The acting master said there was no doubt that because the appellant took on the role of carer, the deceased did not have to return to the nursing home. However, the acting master also said it was clear that the appellant moved into the Maddington Property with the deceased to prevent it from being sold and to prevent the proceeds from being distributed, and that there was no evidence that the deceased desired to return to the Maddington Property. The acting master said the evidence suggested that deceased suffered from Alzheimer's disease and dementia such that the appellant made all decisions on her behalf pursuant to an enduring power of attorney.[38]

1. The acting master observed that the appellant's evidence was that she took on the role of carer for the deceased without consultation or the agreement of her siblings.[39]
2. The acting master said that there was no evidence to suggest that the other children did not have a good relationship with the deceased, or that they were estranged from her.[40]
3. The acting master also referred to the absence of evidence filed by the respondents. The acting master said, in passages which are attacked in this appeal:[41]

In Butcher v Craig, the second defendant did not provide any information about her situation. The court noted she did not challenge the distribution from the estate but did not give any indication as to how that lack of information was to feed in to the determination of the jurisdiction question.

In Kennedy v Kennedy, Master Sanderson observed that there

'appears to be no direct authority on the point. Perhaps all that can be said is that there is no evidence of need on the part of the ... defendants but nor is there a concession their entitlement under the will ought be adversely effected by any decision.'

In determining the jurisdictional question in this case, I have had regard to the fact that there is no evidence of need on the part of the [second - ninth respondents]. I have also had regard to the fact that there is no concession by the [second - ninth respondents] that their entitlement under the will ought to be effected by any decision. In the circumstances of this case, notice and regard of this primary factor does not particularly advance the determination of the jurisdiction question.

...

The deceased made provision for Susan in her will. She was gifted one-ninth of the estate. She was treated equally with her siblings and the children of Mr Wright. Accordingly, the jurisdictional question is whether provision was adequate and proper. (emphasis added)

The authorities are clear that the words 'adequate and proper' are always relative and the court is left to form opinions on the basis of its own general knowledge and experience of current social conditions and standards.

In the end, I am not satisfied the jurisdictional question should be answered in the plaintiff's favour. By acting as she did and caring for the deceased, [the appellant] has a legitimate moral claim on the estate. However, having carefully considered the evidence, I find that she has received in all of the circumstances adequate provision under the deceased's will taking into account her needs and moral claim on the estate and the size of the estate, as at the date of the testator's death.

1. The acting master accordingly dismissed the appellant's application.

1. The appellant relies upon two grounds of appeal:
   1. In all of the circumstances, including as the acting master found, the appellant having cared full-time for the deceased for the last five years of the deceased's life, it was not open to find, and the acting master erred in finding, that the deceased's will made adequate provision for the appellant's proper maintenance, support, education and advancement.
   2. The acting master ought to have found that:

(a) the deceased's will did not make adequate provision for the appellant's proper maintenance, support, education and advancement; and

(b) if the deceased's will had made adequate provision for the appellant, the deceased's will would have bequeathed the Maddington Property to the appellant.

1. In relation to pars 1 and 2(a) of the grounds of appeal, the appellant, in her written submissions, submits, in effect, that the only inference open to the acting master was that adequate provision had not been made for the appellant from the deceased's estate within the meaning of s 6 of the Family Provision Act because:[43]
   1. she was divorced and without a home of her own;
   2. she had no great skills or qualifications which would enable her to return to the workforce towards the end of her working life;
   3. she had applied some of her capital assets for the benefit of the deceased in maintaining her;
   4. she only had a small amount of capital left from the settlement of her marital breakdown, which appeared to be about $113,000 in July 2015;
   5. she had devoted herself to caring for her mother during the last five years of her life, while her mother had suffered from Alzheimer's disease and dementia;
   6. no inference could be drawn that the second - ninth respondents had any financial need; and
   7. no other child had advanced any other financial or moral claim upon the estate.
2. The appellant contended that the acting master erred in not expressly adverting to, or considering, the fact that there was no other moral or financial claim that had been established by any other child. It is alleged that the acting master 'could not properly reach the conclusion that the provision [for the appellant] was adequate ... without specifically considering the need and moral claim of the other children'.[44]
3. In relation to ground 2(b), the appellant further contends that in the absence of evidence of any other moral or financial claim against the estate, the court 'ought act on the basis that there is no such claim, and that adequate provision for [the appellant] requires that the Maddington Property ought to belong to her'.[45]
4. In oral submissions, senior counsel for the appellant also emphasised the following factual matters:
   1. The holiday to Phuket and Singapore was taken in early 2014, and was cut short by the death of the deceased in January 2014.[46]
   2. The other holidays referred to by the acting master had been undertaken well after the date of the deceased's death.[47]
   3. The appellant's entitlement to Peter's share occurred in circumstances where, after the deceased's death, Peter was ill and the appellant paid Peter the share which he would expect to receive from the deceased's will (presumably on the basis that, contrary to her application, the will remains unchanged), and Peter agreed that when the estate was distributed, the appellant would receive his share.[48]
   4. The appellant personally paid, on behalf of the deceased's estate, the money lent to the deceased pursuant to the deed of settlement, which resulted in the appellant becoming a creditor of the estate in the sum of (approximately) $45,700.[49]
5. The appellant referred, in particular, to Devereaux-Warnes v Hall [No 3].[50] In that case, McLure JA said:[51]

Ordinarily, what is adequate financial provision is assessed by reference to, inter alia, the size of the estate, the need and moral claim of the applicant(s) and the need and moral claim of other persons who have a legitimate claim upon the bounty of the testator. I should add for completeness that 'need' is not determined by reference only to minimum standards of subsistence and that I use the concept of 'moral claim' in the way approved by the majority in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. (emphasis added)

1. Also in Devereaux-Warnes v Hall [No 3],[52] Buss JA referred to the observations of Ormiston J in Anderson v Teboneras.[53] In Anderson, Ormiston J said:[54]

[I]t was argued ... that it was not appropriate to examine either the needs or the 'moral claims', as they have been described, of the other beneficiaries, because, it was said, a failure to make adequate provision must always be made out by the plaintiff by reference to his own circumstances, his financial position and his right to call upon the testator's bounty. It may be conceded that absence of moral obligation to the named beneficiaries will not establish the plaintiff's right to provision, if he can make out no moral claim to be benefited. It is, however, an oversimplification to say that in every case the decision rests solely upon an evaluation of the merits of the plaintiff's position. More often than not one cannot decide whether the testator has made adequate provision for a particular claimant without also looking at the size of the estate and to 'the means and deserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty'.

...

Here the estate is one of significant but moderate value so that it is relevant to inquire what are the competing claims of the beneficiaries, without ignoring the need to leave untouched the testator's distribution so far as may be fairly practicable. Moreover, after making due allowance for the testator's desire to benefit his widow and children, it has been accepted over many years that, if a beneficiary says nothing as to his or her financial position or other claims on the testator's bounty, then the court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.

In the present case the other beneficiaries have said something of their dealings with the testator but little as to their financial resources ... Therefore it is appropriate to consider the comparative moral claims of the widow and other children of the testator upon the assumption that each in their own way has a sufficient income and sufficient resources to meet his or her needs. (emphasis added)

1. In oral submissions, senior counsel for the appellant appeared to contend that the challenge to the acting master's decision is made essentially on two bases. The first basis was inferred error on the basis that the acting master's decision is plainly unjust or unreasonable in the sense referred to in House v The King.[55] The second basis was that there was express error. In that regard, senior counsel for the appellant referred to [57] - [58] of the primary decision and said, with respect to the acting master's observations:[56]

She has applied that by saying the fact that you notice that there is no evidence from them of financial needs doesn't particularly advance the determination of the jurisdictional question. Well, we would say that is wrong because, with respect, the absence of evidence does advance it because it means that you are left in a position where you have evidence on the one hand from my client of substantial financial need with no counterbalancing evidence at all and therefore the answer to the question is advanced by understanding that.

It is not as if you can say, 'well, everything is still equal', which is the import of that sentence and, I mean, that's the basic point that we make and that is the gravamen of the appeal and we say that what has been articulated by Master Sanderson in Kennedy v Kennedy ... was not correct, and it's not correct for the reason that even if there's no concession made by a respondent in such a case that doesn't supply evidence, and so if one side has provided evidence and the other side has not, then that is an important matter because you would draw the inference then ... particularly in a case where the respondents in this case were legally represented and chose not to advance any evidence, that the evidence would not have assisted them.

1. The principles governing appellate review of discretionary decisions apply to a review of a decision on the 'jurisdictional question' under s 6(1) of the Family Provision Act.[57] This requires an appellant to demonstrate error of the kind referred to in House v The King.[58] In Monteleone v The Owners of the Old Soap Factory,[59] McLure JA (as her Honour then was) summarised the relevant principles as follows:[60]

In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted to the Court: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519.

1. Wherever a discretion is to be exercised, minds may reasonably differ on the result.[61]

1. As to the alleged express error, the learned acting master, in our respectful view, erred in law in treating the absence of evidence by the deceased's other children, and Mr Wright's children, as no more than (1) an absence of evidence of need, and (2) evidence that they did not concede that their entitlement under the will ought be affected by the appellant's claim.[62] In our view, at least in relation to Bernadette and Michael, who were legally represented and (in the case of Bernadette) adduced evidence on other matters, the acting master was, in assessing the appellant's claim, required to consider whether the positive inference should be drawn that they had sufficient resources to meet their needs.
2. In our view, the acting master was led into error by her reliance on what was said by the master in Kennedy v Kennedy, in the passage quoted at [37] above.
3. Both the acting master in the present case and the master in Kennedy v Kennedy relied on the decision of this court in Butcher v Craig.[63]
4. In Butcher, the deceased's will left a disposition of about $20,000 to her son, who was the plaintiff, and about $30,000 to her daughter, who was the second defendant. The balance of the estate, valued at about $1.2 million, was left to the three children of the second defendant (the grandchildren of the deceased). There was evidence as to the financial position of both the son and the grandchildren.[64]
5. The master in Butcher was held to have misdirected himself in stating that the moral claims of the grandchildren were not relevant to the jurisdictional question.[65] However, the misdirection was held not to give rise to a miscarriage as the master had gone on to examine the circumstances of the grandchildren while addressing the jurisdictional issue.[66] In the course of finding the master's decision on the jurisdictional issue was unreasonable or plainly unjust, the court observed:[67]

The other beneficiaries named in the will included the second respondent, the appellant's sister, but she did not proffer any information about her situation and she does not challenge the provision made for her in the will. The other beneficiaries are the three children of the second respondent. They are all employed and, as the master found, have no unmet needs.

1. The passage just quoted is not authority for the proposition that absence of evidence of the means of a person who is a beneficiary of the estate is a neutral factor in the determination of the jurisdictional question. The second defendant in Butcher, who did not challenge the will, also received a very small bequest. The small bequest to the plaintiff was not, in those circumstances, explicable by reference to the second defendant's needs or moral claim on the estate.
2. An applicant under the Family Provision Act bears the onus of establishing the claim. No onus lies upon a beneficiary of the deceased's estate to uphold the bequest.[68] However, what is adequate provision is assessed by reference to the totality of the circumstances, including the needs and moral claims of other persons having a legitimate claim on the bounty of the testator.[69] Accordingly, if a defendant beneficiary adduces no evidence of need or particular moral claim, that may provide a basis for the court to infer that they have no special claim other than their relationship to the deceased, and that they have sufficient resources to meet their needs.[70]
3. The acting master seems, with respect, to have overlooked the potential significance, in this context, of the absence of evidence of the means of any of the children in an assessment of the appellant's claim. The acting master's reasoning on this aspect of the matter reveals an error of principle.
4. To this extent, the appellant has established express error.

The jurisdictional question is answered adversely to the appellant

1. Express error having been established, it is then necessary for this court, which has the necessary material, to consider whether it is of the opinion that the deceased's will fails to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the appellant.
2. The principles governing the court's consideration of the jurisdictional question were summarised by Buss JA, with whom Pullin JA agreed, in Devereaux-Warnes. Much of that summary was repeated by Buss P in Lemon v Mead.[71] The following points may be noted:

(1) The jurisdictional issue involves a question which is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision arises from the fact that the court must determine whether the claimant has been left without 'adequate' provision for his or her 'proper' maintenance, etc.[72]

(2) The question which arises at the jurisdictional stage must be formulated and determined as at the date of death of the deceased, having regard to all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.[73]

(3) The word 'proper' connotes something different from the word 'adequate'. For example, a small sum may be sufficient for the 'adequate' maintenance, etc, of the claimant but, having regard to all the circumstances, including the size of the deceased's estate and the lifestyle to which the claimant had become accustomed during the deceased's lifetime, may be wholly insufficient for his or her 'proper' maintenance. By contrast, a sum may be quite insufficient for the 'adequate' maintenance, etc, of the claimant, and nevertheless be sufficient for his or her maintenance, etc, on a scale that is 'proper' in all the circumstances.[74]

(4) The determination of whether the provision, if any, made for the claimant is 'adequate' for his or her 'proper' maintenance, etc, involves not only a scrutiny of the requirements of the claimant for maintenance, etc, that were reasonably foreseeable by the deceased, but also an examination of the totality of the relationship between the claimant and the deceased.[75]

(5) The totality of that relationship would include any sacrifices made or services given by the claimant to or for the benefit of the deceased; any contributions by the claimant to building up the deceased's estate; and the conduct of the claimant towards the deceased and of the deceased towards the claimant.[76]

(6) Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Family Provision Act.[77]

(7) 'Adequate' is concerned with the quantum, whereas 'proper' prescribes the standard, of maintenance, etc. The propriety of the provision, if any, for the claimant is to be assessed by reference to all the circumstances including contemporary accepted community standards.[78]

(8) Freedom of testamentary disposition is a relevant and important consideration. A will should only be disturbed if, and to the extent that, 'adequate' provision has not been made for the 'proper' maintenance, etc, of the claimant. It was never meant that the court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the court.[79]

(9) In considering the jurisdictional question, the court should also have regard to the deceased's 'moral duty' to other people who are within the statutory class of claimants (whether or not they are also beneficiaries of the deceased's will), and the 'moral claims' of those other people against the deceased, especially where the deceased's estate is of modest or moderate value.[80]

(10) The court, in considering the jurisdictional question, should have regard to:

(a) the totality of the relationship between the deceased and a beneficiary of the deceased's will; and

(b) the financial and personal circumstances of the beneficiary,

even though the beneficiary is not an eligible claimant within s 7 of the Family Provision Act.[81]

1. We are prepared to consider the appellant's claim on the assumption that all the other children[82] had sufficient income and resources to meet their needs. However, regard must also be had to the following matters, established by the unchallenged findings of primary fact and other uncontested evidence.
2. First, in relation to the appellant's own financial circumstances:
   1. The onus was on the appellant to establish an affirmative answer to the 'jurisdictional question' as at the date of the deceased's death. She did not adduce evidence of her true financial position at that time.
   2. Even though the appellant had not adduced evidence of her true financial position as at the date of the deceased's death, the acting master evidently accepted that:

(a) she had been living rent-free at the Maddington Property; and

(b) had cash reserves of around $233,600 from the sale of her home, plus superannuation in the order of $11,000, on top of which she would receive $32,000 under the will.

1. The acting master was not satisfied that she could not meet her accommodation needs out of her own resources.
2. There was no evidence that the appellant was incapable of working.
3. Secondly, the weight that might ordinarily be given to a claim with regard to care is reduced by the acting master's unchallenged findings that:
   1. There was no evidence that the deceased, who had Alzheimer's disease and dementia, had wished to reside at the Maddington Property with the appellant.
   2. The appellant had, in effect, removed the deceased from the nursing home to live at the Maddington Property to prevent it from being sold, and to prevent the proceeds being distributed to the beneficiaries of Mr Wright's estate.
   3. The appellant had claimed to be a creditor of the estate for 'wages' and other expenses in caring for her mother in excess of $1.6 million.
   4. Some years prior to the deceased's death, the deceased also had other carers who attended to her three times a day to shower and dress her.
4. Thirdly, in relation to the other children, the acting master found that there was no evidence that they did not have a good relationship with the deceased, or that they were estranged from her. Accordingly their claim on the estate was to be assessed on the basis of the ordinary ties of blood[83] and familial affection. Also, although the point is relatively slight, the deceased's children provided the deceased with funds, by way of loan, to meet her costs in relation to her claim against Mr Wright's estate, and thereby assisted in her claim against that estate.
5. Finally, the size of the estate is relatively small. The appellant's claim to, in effect, the entirety of the estate, if successful, would mean that the other children, who have a moral claim through their relationship with the deceased, would be deprived of any benefit under the will. Further, in considering the question of adequate provision, even, eg, a doubling of the appellant's share as compared with her siblings would not significantly alter the appellant's financial position.
6. In all the circumstances of this case, we are not satisfied that the deceased's will fails to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the appellant. In these circumstances, while express error has been established, that error does not justify allowing the appeal.
7. Having reached this conclusion, the second stage of the inquiry - determining the provision which ought to be made out of the deceased's estate - does not arise.[84] We note that, if the jurisdictional question had been resolved in the appellant's favour, it would have been necessary to remit the matter to the General Division for a new trial of the matter. At the second stage the court exercises its discretion to order adequate provision for the proper maintenance, etc, of the claimant by reference to the circumstances as they exist at the date of the order.[85] It was evident from the submissions made by the (unrepresented) respondents in this appeal[86] that their current financial circumstances would need to be considered.[87]

1. In considering the appellant's submissions as to inferred error, it is appropriate to bear in mind the observations of Kirby P (as his Honour then was) in Golosky v Golosky,[88] referred to with approval by Mason CJ, Deane and McHugh JJ in Singer v Berghouse:[89]

Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.

1. In considering the merits of the case for ourselves we have concluded that the jurisdictional question is to be answered in favour of the respondents. It follows that we would not infer error on the basis that the same conclusion reached by the acting master's decision is plainly unjust or unreasonable in the sense referred to in House v The King.

1. For these reasons the appeal should be dismissed.

1. The background, evidence, findings of the acting master, grounds of appeal and submissions are outlined in the reasons of Murphy and Mitchell JJA (joint reasons).
2. I agree with their Honours, for the reasons they give, that the acting master's reasons reveal an error of principle concerning the significance of the absence of evidence of the financial resources of any of the other children of the deceased.[90]
3. Consequently, this court must decide for itself the jurisdictional question: whether the deceased's will fails to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the appellant. The principles relating to that question are outlined in the joint reasons.[91]
4. Murphy and Mitchell JJA have set out the matters which lead them to conclude that the jurisdictional question is not to be answered favourably to the appellant. Acknowledging the force of their Honours' reasons, I have come to a different conclusion. In all the circumstances of the case, I am satisfied that the deceased's will failed to make adequate provision from her estate for the proper maintenance, support, education or advancement in life of the appellant. In that regard, I refer to the following facts and circumstances:

(1) At the date of death of the deceased, the appellant was 53 years old and divorced. She did not own a home.

(2) The appellant, who was not legally represented at the hearing before the acting master, did not lead evidence directed to her financial circumstances at the date of death of the deceased. The appellant's evidence as to her financial circumstances was directed to the current position as at the time she swore her affidavit. For a person without legal training, this was an understandable approach.

(3) The master found that the appellant had received a sum of $234,000 (approximately) from the sale of her home in the period within 10 months prior to the deceased's death. The master also inferred that the appellant had approximately $11,000 in superannuation.

(4) The appellant had not worked for some years prior to the death of the deceased. The master found that it was not proved that the appellant was incapable of working. Nonetheless, on the evidence before the master and on her findings, I would conclude that there was significant uncertainty as to when, if and for how long the appellant, as a 53-year-old, who had not worked for several years, would return to regular employment.

(5) The appellant was the deceased's full-time carer for about the last five years of the deceased's life. While I accept that the matters referred to in [63] of the joint reasons reduce the weight that would ordinarily be given to a claimant having cared full-time for five years for the deceased, to my mind, that circumstance nevertheless attracts significant weight in the assessment of the jurisdictional question in this case.

(6) In the circumstances, it is to be inferred that none of the other beneficiaries of the deceased's estate had any financial need.

1. In my respectful opinion, the apparent need to award the appellant a substantial portion of this small estate in order to significantly assist the appellant's financial circumstances is a matter bearing on the exercise of discretion at the second stage of the inquiry, rather than informing the jurisdictional question, namely whether the claimant has been left without adequate provision for her proper maintenance, support of advancement in life.
2. For these reasons, I conclude that the will failed to make adequate provision for the proper maintenance, support, education or advancement in life of the appellant.
3. I agree with the joint reasons that, for the reasons they give, it is thus necessary to remit the matter to the General Division for a new trial of the proceeding. An order for a retrial is always a regrettable outcome, and all the more so given the nature of these proceedings and the small size of the estate. However, justice would require that the respondents be given an opportunity to lead evidence of their current financial circumstances to inform the court's exercise of discretion at the second stage of determining the provision which ought to be made for the appellant.
4. For these reasons, I would uphold the appeal and order a retrial.

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

[1] Kilkenny v Kilkenny [2017] WASC 127.

[4] The appellant is also the executrix of the deceased's will.

[6] See the affidavit of Bernadette Pragnell sworn 20 December 2016; GB 355; primary decision [2].

[7] The background is taken from the primary decision, unless otherwise indicated.

[10] Deed of Settlement, recital B; GB 360.

[11] Primary decision [8] - [10]; deed of settlement, cl 1, cl 2, cl 4, cl 7; GB 361 - 364.

[41] Primary decision [56] - [59]. The passage referred to is Kennedy v Kennedy [2016] WASC 210 [33]. See also appeal ts 51 - 52.

[43] Appellant's submissions, pars 29, 31, 34; WB 17.

[44] Appellant's written submissions, pars 36 - 38; WB 18.

[45] Appellant's written submissions, par 40; WB 18.

[50] Reference was made to Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [9].

[53] Anderson v Teboneras [1990] VicRp 47; [1990] VR 527.

[55] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; appeal ts 47.

[57] Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 [47].

[58] House v The King (504 - 505).

[59] Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79.

[61] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 539 - 540.

[63] Butcher v Craig [2010] WASCA 92.

[68] Re Adamow (1989) 97 FLR 410, 415.

[69] Devereaux-Warnes [9]; Anderson (534).

[70] Anderson (534 - 535); Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 [94]; Davison v Kempson [2018] VSCA 51 [38].

[71] Lemon v Mead [2017] WASCA 215.

[72] Devereaux-Warnes [68]; Lemon v Mead [52].

[73] Devereaux-Warnes [70]; Lemon v Mead [54].

[74] Devereaux-Warnes [72] - [73]; Lemon v Mead [60] - [61].

[75] Devereaux-Warnes [74]; Lemon v Mead [62].

[76] Devereaux-Warnes [75]; Lemon v Mead [63].

[77] Devereaux-Warnes [76]; Lemon v Mead [64].

[78] Devereaux-Warnes [77]; Lemon v Mead [65].

[79] Devereaux-Warnes [91], adopted in Lemon v Mead [269].

[82] And not just Bernadette and Michael who were legally represented at trial.

[83] In the case of the second - seventh respondents.

[84] Devereaux-Warnes [69]; Lemon v Mead [53].

[85] Devereaux-Warnes [71]; Lemon v Mead [56].

[86] Appeal ts 65 - 66, 68. See also appeal ts 52.

[87] Christie v Manera [2006] WASC 287 [81]; Lemon v Mead [225].

[88] Golosky v Golosky [1993] NSWCA 111, 8.

[89] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 212.