Allan v Dobbins

[2024] QDC 169

DISTRICT COURT OF QUEENSLAND

CITATION:

Allan v Dobbins & Ors [2024] QDC 169

PARTIES:

NOEL CHARLES ALLAN

(applicant)

v

GAYLE MAREE DOBBINS, DAVID WILLIAM ALLAN & COLLEEN PATRICIA HARVEY
(Executors of the Estate of the late David Allan)
(respondents)

FILENO/S:

D11/21

DIVISION:

ORIGINATING COURT:

Civil

District Court at Mackay

DELIVEREDON:

4 October 2024

DELIVEREDAT:

Brisbane

HEARINGDATES:

30 May 2023, 31 May 2023 and 17 October 2023 (final

written submissions 21 December 2023)

JUDGE:

Allen KC DCJ

ORDER:

1.       The application is dismissed.

2.       Direct that:

a.   the applicant file any evidence and/or submissions on costs within 14 days;

b.   the respondents file any evidence and/or submissions on costs within 14 days of receipt of the applicant’s evidence and/or submissions;

c.   the applicant file any submissions in reply within 7 days of receipt of the respondents’ evidence and/or submissions.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH  INSUFFICIENT  PROVISION  –  CLAIMS  BY

CHILDREN – claim by adult son – where the applicant had

been in a family farm partnership with the testator – where the applicant had settled litigation with the testator following

upon dissolution of the partnership – where a lengthy period of estrangement was followed by resumption of relationship – where applicant then received payments from testator for services – where testator’s will provided for nominal bequest to the applicant – competing claims of sibling beneficiaries – whether applicant left without adequate maintenance and support

Evidence Act 1977 (Qld), s 59

Succession Act 1981 (Qld), s 41

Briginshaw v Briginshaw (1938) 60 CLR 336
Collings v Vakas [2006] NSWSC 393
Chan v Chan [2016] NSWCA 222
Chapman v Ingold; Estate of the Late Eleanor Merle Ingold
[2015] NSWSC 1604

Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37 Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134

Jones v Dunkel (1959) 105 CLR 298
Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9
Re Janson; Gash v Ruzicka [2020] VSC 449
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201
T v R & Anor [2019] QDC 220
Vigola v Bostin (2005) 221 CLR 191

COUNSEL:

Mr SC Fisher for the applicant

Mr S McLennan for the respondents

SOLICITORS:

Wills & Estates Law Qld for the applicant

SB Wright Wright and Condie Solicitors for the respondents

Introduction

1. The applicant seeks an order pursuant to Part 4 of the Succession Act 1981 (Qld) (‘the Act’) that adequate provision be made for his proper maintenance and support from the estate of his late father David Allan (‘the testator’).

2. The testator died on 14 June 2020 aged 92 years. He was married to Audrey Florence Allan (‘Mrs Allan’) who predeceased him in 1999. The testator and Mrs Allan had eight children, one of whom died in infancy.

1. The applicant is the eldest child. The executors and primary beneficiaries of the testator’s…