Atthow v McElhone

[2010] QSC 177

SUPREME COURT OF QUEENSLAND

CITATION:

Atthow v McElhone [2010] QSC 177

PARTIES:

KAY JUDITH ATTHOW
(applicant)
v
DIANNE JOY McELHONE
(respondent)

FILE NO:

13362 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2010

JUDGE:

Applegarth J

ORDERS:

1.    The proceeding be remitted to the District Court at Brisbane;

2.    The costs of the respondent in the proceedings/the applicant on the application filed 23 April 2010 of and incidental to the application filed 23 April 2010 be assessed on an indemnity basis and paid out of the estate of the deceased;

3.    The costs of the applicant in the proceedings/the respondent on the application dated 23 April 2010 of and incidental to the application filed 23 April 2010 be reserved.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH SUFFICIENT PROVISION – Claims by children - whether application by estranged adult daughter should be summarily dismissed

LEGISLATION:

Succession Act 1981 (Qld), s 41
Uniform Civil Procedure Rules, r 658, r 293

CASES: 

Re Adamow (1989) 97 FLR 410, cited
Collett v Knox [2010] QSC 132, cited
Ford v Simes [2009] NSWCA 351, cited
Higgins v Higgins [2005] QSC 110, cited
Laursen v Laursen [2009] QSC 30, cited
Sellars v Maeykc [2005] QSC 368, cited
Singer v Berghouse (1994) 181 CLR 201, cited
Vigolo v Bostin (2005) 221 CLR 191, cited

COUNSEL:

D Murphy SC for the applicant (respondent in the principal proceeding)
L Nevison for the respondent (applicant in the principal proceeding)

SOLICITORS:

Sheehan & Co for the applicant (respondent in the principal proceeding)
Crilly Lawyers for the respondent (applicant in the principal proceeding)

1. The executor of the estate of Jessie Olive Atthow seeks an order summarily dismissing an application for provision from the estate.  Jessie Olive Atthow (“the deceased”) died on 13 April 2009.  She was survived by her three children:

(a)Kay, now aged 66, who is the applicant for provision from the estate;

(b)Lance, now aged 65;  and

(c)Dianne, now aged 61.

Dianne is an executor under a will dated 27 October 1999.  Probate was granted to Dianne on 22 June 2009.

1. The estate has a value of slightly less than $300,000 before the deduction of the costs of selling its real property, which is worth $220,000. 

1. The will, in effect, provided for the whole of the estate, after payment of debts, funeral and testamentary expenses, to Dianne.  No effective provision was made for Lance or Kay.  Lance has made no application for provision from the estate and does not intend to do so. 

1. Kay has net assets of approximately $2.3 million.  In recent years she has been employed as a nurse, but it is uncertain for how long into the future she will gain income from employment.  She last worked for Queensland Health in March 2010.  Her 2009 tax return…