JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BLYTH -v- WILKEN [2015] WASC 486

CORAM : MASTER SANDERSON

HEARD : 15 SEPTEMBER 2015

DELIVERED : 22 DECEMBER 2015

FILE NO/S : CIV 2398 of 2015

BETWEEN : STEVEN JOHN BLYTH

Plaintiff

AND

SHARON LEE WILKEN
First-named First Defendant

ROBERT JAMES SCOTT
Second-named First Defendant

RODNEY STEPHEN SCOTT
Third-named First Defendant

LEONARD FOREST SCOTT
Fourth-named First Defendant

KATHRINE MARY SIMEON (formerly KATHRINE MARY MURRAY)
Second Defendant

Catchwords:

Wills - Property left to de facto wife - Relationship ended before death of deceased - Whether property passes to person no longer de facto wife - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Wills Act 1970 (WA)

Result:

Property not passing to former de facto wife

Category: B

Representation:

Counsel:

Plaintiff : Ms H Da Silva
First-named First Defendant : In person
Second-named First Defendant : Ms L T Marchesi
Third-named First Defendant : No appearance
Fourth-named First Defendant : No appearance
Second Defendant : In person

Solicitors:

Plaintiff : Lewis Blyth & Hooper
First-named First Defendant : In person
Second-named First Defendant : L T Marchesi
Third-named First Defendant : No appearance
Fourth-named First Defendant : No appearance
Second Defendant : In person

Case(s) referred to in judgment(s):

Nil


1 MASTER SANDERSON: This action concerns the proper interpretation of the will of the late Wayne Stewart Scott (the deceased). The deceased died on 28 August 2014 and on 25 March 2015 probate was granted to the plaintiff. The will was dated 2 December 2003.

2 The difficulty arises with cl 3 of the Will. It is in the following terms:

I GIVE DEVISE AND BEQUEATH the rest and residue of my real and personal estate whatsoever and wheresoever situate unto my Trustee UPON TRUST to sell, call in and convert into money the same or all such parts thereof as shall not constitute of money or investments of the nature hereinafter authorised (with power in the discretion of my Trustee to postpone such sale, calling in and conversion for such period or periods as my Trustees shall think fit) and with and out of the moneys arising from such sale, calling in and conversion and out of my ready moneys with recourse if considered necessary to any such investments as aforesaid to pay my funeral and testamentary expenses and just debts and all probate and estate duties on the whole of my estate and to invest the residue of such moneys in or upon any investments for the time being authorised by law for the investment of trust funds with power in the discretion of my Trustee to vary or transpose such investments from time to time and to stand possessed of such moneys and the investments for the time representing the same and all such portions of my residuary estate as shall for the time being remain unconverted (all of which moneys investments and property are hereinafter referred to as 'my Trust Estate') UPON TRUST for my de facto wife KATHRINE MARY MURRAY absolutely provided she survives me for a period of twenty-eight (28) days PROVIDED AND I DECLARE that if Kathrine Mary Murray shall fail to survive me as aforesaid then for such one or more of her sons AARON PETER MURRAY and SCOTT VERNON MURRAY as shall survive me for a period of twenty-eight (28) days and if more than one as tenants in common in equal shares FURTHER PROVIDED AND I DECLARE that if either of Kathrine's said sons shall die before attaining a vested interest in my Trust Estate leaving a child or children him or her surviving who shall survive me and who shall have attained or shall live to attain the age of eighteen (18) years then such child or children shall take if more than one as tenants in common in equal shares the share of and in my Trust Estate which his or her or their parent respectively would have taken if he had lived to attain a vested interest.

3 In this day and age that is a remarkable clause. It is one sentence. It would have brought a wry smile to the face of Charles Dickens; if it had been available to him he doubtless would have used it when writing Bleak House.

4 In support of the application the plaintiff filed an affidavit sworn 1 September 2015. He sets out the history of the relationship between the deceased and Kathrine Mary Murry (now known as Kathrine Mary Simeon). Ms Murray was the de facto wife of the deceased at 2 December 2003 when the will was made. The relationship ended on 21 December 2011. It is not in dispute Ms Murray was the not the de facto wife of the deceased as at the date of his death on 28 August 2014.

5 The plaintiff has distilled out the following question which he seeks to have answered by the court:

Was the gift in clause 3 of the Will of Wayne Stewart Scott signed on 2 December 2003 to Katherine Mary Murray dependant or conditional on her being the de facto of the deceased at the date of his death?

6 In construing the will regard must be had to s 26 and s 28A of the Wills Act 1970 (WA). I will not quote these sections. It is enough if I say that I have taken them into account in construing the will. I have also taken into account s 15 of the Administration Act 1903 (WA) which deals with de facto partners and distribution on intestacy. That section is not directly relevant to this case. However, it is worth noting that to take under an intestacy a de facto partner must have 'lived as de facto ... for a period of at least 2 years immediately before the death of the intestate'.

7 Pursuant to s 14(2) of the Wills Act when a married couple is divorced any will then in existence is revoked. The section makes it plain revocation takes place upon the orders dissolving the marriage being issued. In other words the involvement of the Family Court of Western Australia is a precursor to the will being revoked. With a de facto relationship the parties are free to go their own way by agreement. They may, under the appropriate legislation, resort to the Family Court if they cannot resolve their differences with respect to property or children. But even if the Family Court is involved in those types of disputes at no time does the Family Court issue a decree which dissolves the relationship. Thus a will entered into by a de facto partner when the relationship is sound continues to apply even when the relationship is dissolved.

8 The argument advanced by the second defendant was to the effect the phrase 'my de facto wife' was descriptive and nothing else. The important reference was to Kathrine Mary Murray. It was submitted it was plain Ms Murray was the intended recipient of the gift and the descriptor could be conveniently ignored.

9 In my view to read the will in that way ignores the reality of the relationship. The deceased bequeathed the property to Ms Murray because she was his de facto wife. Once that ceased to be the case it seems to me the intended disposition should fall away. The position can be contrasted with a gift to 'my son John'. If after the signing of the will the testator and his son became estranged it would not alter the fact that the phrase 'my son John' would still describe a particular person and a particular relationship.

10 It must also be borne in mind that pursuant to s 26(1)(a) of the Wills Act the will of the deceased is said to speak from the date of death. As at the date of death of the deceased he and Ms Murray had gone their separate ways. It is difficult to imagine the deceased would have wished his property to go to Ms Murray from whom he had been separated for a number of years. That was a point made by the first defendants who, although they did not appear at the hearing, made written submissions to that effect.

11 The precise form of the orders in this matter may be the subject of further debate. On publication of these reasons I will hear from the plaintiff as to the form of the orders and as to costs.