Kitson & Anor v Franks & Anor

[2001] WASCA 134

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Inheritance
3. › Family provision
4. › Adequate provision for proper maintenance, support, education or advancement in life
5. › Two-stage inquiry
6. › Jurisdictional question determined at date of death
7. › Whether adult grandchild left without adequate provision
8. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d)
1. Succession
2. › Inheritance
3. › Family provision
4. › Adult grandchildren
5. › Whether special need or special claim required
6. › Whether grandchildren rank differently from children
7. › Relevance of financial self-sufficiency
8. › Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 7(1)(d)
1. Succession
2. › Inheritance
3. › Family provision
4. › Exercise of discretion as to quantum of provision
5. › Whether trial judge erred in assuming deceased would have provided for predeceased child
6. › Wise and just testator standard
7. › Appellate review of discretionary decision
1. Practice and Procedure
2. › Costs
3. › Family provision applications
4. › Costs of unsuccessful claimant
5. › Whether costs should be paid from estate

Quick Take

Under the Inheritance (Family and Dependants Provision) Act 1972 (WA), no distinct test of 'special need' or 'special claim' applies to adult applicants; the fact that an applicant is a healthy, employed adult is a material fact to be weighed but does not preclude a finding of inadequate provision. Grandchildren and children have equal standing under s 7(1) and the same test under s 6(1) applies to both, though the relative remoteness of the grandchild relationship may be relevant to quantum. The mere possibility of future injury or ill health affecting capacity to work does not provide adequate foundation for a finding that provision from the estate is required.