Allsop v Henderson - [2015] QSC 105

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

Vigolo v Bostin (2005) 221 CLR 191, cited

COUNSEL:

D J Topp for the applicant

C A Brewer for the respondents

SOLICITORS:

Colavitti Lawyers for the applicant

Dowd & Co…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allsop v Henderson

Details

AGLC: Allsop v Henderson [2015] QSC 105
Case: [2015] QSC 105
Decision Date: 1 May 2015

CaseChat Overview and Summary

In the case of Allsop v Henderson, the applicant, Steven Charles Allsop, sought additional financial provision from his father’s estate, Charles Edward Allsop, who had recently passed away. Steven, an adult son from the testator's first marriage, claimed that the provision made for him under the will was inadequate for his proper maintenance and support. The primary dispute was over whether the estate had made sufficient provision for Steven, considering his poor financial position and limited earning capacity due to injury, his troubled relationship with the testator, and the substantial provision made for the testator’s widow and son from his second marriage.

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

The financial position of the estate was therefore considerably in excess of that deposed to by the respondents. It is not necessary to put a precise figure on the financial position of Charles’ estate except to say that its net position was understated by as much as $10,000,000.Conclusion In answering the factual question determining whether or not the provision made for Steven was inadequate for his proper maintenance and support, I have had regard to, inter alia, the factors referred to in Singer v Berghouse.[18] As can be seen from the foregoing, the applicant’s financial position and earning capacity are poor, while the size of the estate is very large and was understated by the respondents. The relationship between the applicant and his deceased father was very troubled, but fault cannot be attributed to the applicant for the emotional suffering caused to him by his father throughout his life. The other persons who have a legitimate claim on the deceased’s bounty are his widow and the son of his second marriage. They are well provided for under the Will and are otherwise in very comfortable circumstances because of financial entitlements provided for them by Charles during his lifetime. The applicant and his family are in very poor financial circumstances.[18] (1994) 181 CLR 201. As noted at the beginning of these reasons, the first question to be answered in a family provision case is whether, in all of the circumstances, adequate provision has been made from the estate for the applicant. An analysis of all of the circumstances set out in these reasons leads me to the conclusion that it was not. It is therefore necessary to determine, in the exercise of my discretion, what provision should be made out of the estate for the applicant. He was left a car, a house and $500,000. In my view, an additional $500,000 would appropriate. That would enable the entire amount of $1,000,000, if invested at current term deposit rates of two to three per cent per annum, to generate annual income of $20,000 to $30,000. That would be adequate provision for Steven from Charles’ estate. It is by no means equal to the provision for Richard, who will receive the whole of the residuary estate on his mother’s death, but it is not the role of the court to rewrite the Will to make it fairer or to assuage the damage caused to a fractured family relationship by hurt and unequal treatment.Order I therefore 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.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Vigolo v Bostin (2005) 221 CLR 191, cited
COUNSEL:	D J Topp for the applicant C A Brewer for the respondents
SOLICITORS:	Colavitti Lawyers for the applicant Dowd & Co…