SUPREME COURT OF QUEENSLAND
CITATION:
Allsop v Henderson & Others [2015] QSC 105
PARTIES:
STEVEN CHARLES ALLSOP
(applicant)
v
EDWARD JAMES HENDERSON, PETER ALCORN LILLEY, RICHARD CHARNON ALLSOP (as Executors of the Estate of the late CHARLES EDWARD ALLSOP)(respondents)
FILE NO/S:
5009 of 2013
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
1 May 2015
DELIVERED AT:
Brisbane
HEARING DATE:
23-24 February 2015
JUDGE:
Atkinson J
ORDER:
That further and better provision for the applicant, Steven Charles Allsop, be made out of the estate of Charles Edward Allsop, deceased, by reading the Will as if the following clause were substituted for Clause 3(d) of the Will:
“to my son Steven Charles Allsop the sum of One Million Dollars ($1,000,000.00) and I direct that such amount is to be paid first from my ready monies and if such funds are insufficient then my Trustees are to exercise all appropriate powers and discretions as my Trustee or as Shareholders or Directors of any company in which I hold shares at the date of my death (whether or not such company acts as a Trustee of any Trust) so that the legacy of $1,000,000.00 is paid to my son Steven Charles Allsop as a capital payment within 12 months from the date of my death.”
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicant was the adult son of the testator’s first marriage – where the applicant was poorly paid and of limited working capacity due to injury – where the applicant was married with two young adult children – where the relationship between the applicant and the testator was poor – where the testator had remarried – where there was a son of the second marriage – where the other legitimate claims on the testator’s bounty were his widow and the adult son of his second marriage – where the testator’s widow and second son had provided care for the testator later in life – where the testator had provided well for his widow and second son in life – where the testator had made substantial provision for his widow and second son under the will – where the testator had made little provision for the applicant under the will – where much of the estate’s assets were found to be held in a series of companies and trusts – where the estate was consequently very large – whether adequate provision had been made from the estate for the applicant’s proper maintenance and support.
Succession Act 1981 (Qld) s 40, s 41(1)
Brown v Hill [2012] NSWSC 464, cited
Lajcarova v Todorov [2011] NSWSC 522, cited
Singer v Berghouse (1994) 181 CLR 201, followed
COUNSEL:
D J Topp for the applicant
C A Brewer for the respondents
SOLICITORS:
Colavitti Lawyers for the applicant
Dowd & Co…
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- Allsop v Henderson [2015] QSC 105
- Case
- [2015] QSC 105
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the estate had made adequate provision for Steven's proper maintenance and support, weighing various factors such as Steven’s financial needs, the size of the estate, and the testator's treatment of Steven. The court also considered the relationship between Steven and his father, which was strained, and the provisions made for the widow and the son from the second marriage, who were well provided for both under the will and through financial support during the testator’s lifetime. The court held that the initial provision made for Steven was inadequate, given his poor financial circumstances and the substantial value of the estate.
In exercising its discretion under the Family Provision Act, the court concluded that an additional $500,000 would be appropriate to provide adequate provision for Steven. This amount, when combined with the existing bequests, would generate sufficient annual income to meet Steven's maintenance needs. The court emphasised that while the provision would not equal that of the other beneficiaries, its role was not to rewrite the will but to ensure fair and equitable provision for Steven. The court ordered that the will be amended to provide Steven with a total of $1,000,000, to be paid within 12 months of the testator’s death.
Orders
Orders of the court
That further and better provision for the applicant, Steven Charles Allsop, be made out of the estate of Charles Edward Allsop, deceased, by reading the Will as if the following clause were substituted for Clause 3(d) of the Will:
“to my son Steven Charles Allsop the sum of One Million Dollars ($1,000,000.00) and I direct that such amount is to be paid first from my ready monies and if such funds are insufficient then my Trustees are to exercise all appropriate powers and discretions as my Trustee or as Shareholders or Directors of any company in which I hold shares at the date of my death (whether or not such company acts as a Trustee of any Trust) so that the legacy of $1,000,000.00 is paid to my son Steven Charles Allsop as a capital payment within 12 months from the date of my death.”
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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