DISTRICT COURT OF QUEENSLAND
CITATION:
Baker v Baker [2019] QDC 92
PARTIES:
KENNETH NOEL BAKER
(first applicant)and
MARK KENNETH BAKER
(second applicant)v
WAYNE NOEL BAKER and HAYDEN KENNETH BAKER as executors of the will of GWENDA DAWN BAKER (deceased)
(respondents)FILE NO/S:
D3793/17
DIVISION:
PROCEEDING:
Family provision application
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
7 June 2019
DELIVERED AT:
Maroochydore
HEARING DATE:
15, 16 April 2019
JUDGE:
Judge McGill SC
ORDER:
Order that provision be made from the estate of the deceased for the first applicant, KENNETH NOEL BAKER, in the sum of $200,000, and for the second applicant, MARK KENNETH BAKER, in the sum of $75,000.
Order that the specific bequests in clause 6(b), (c), (d) and (e) of the will be exonerated under s 41(4), and under s 41(3) that otherwise the orders for provision fall first on the share of the respondent HAYDEN KENNETH BAKER, and then rateably on the balance of the estate.
Adjourn the question of costs to 14 June 2019.
CATCHWORDS:
TESTATOR’S FAMILY MAINTENANCE – Application of spouse - estate to son and grandson – small estate – whether need shown – strength of competing claims to bounty – significance of quality of relationship – provision ordered.
TESTATOR’S FAMILY MAINTENANCE – Application of adult son – estate to sibling and grandson – small estate – whether need shown – strength of competing claims to bounty – whether disentitling conduct – provision ordered.
Succession Act 1981 s 41.
UCPR r 430, r 435(10), (11), (12), r 700A.
Albury v Sammut [2019] QSC 105 – cited.
Anderson v Teboneras [1990] VR 527 – cited.
Blair v Blair (2014) 10 VR 69 – cited.
Clifford v Mayr [2010] NSWCA 6 – cited.
Collins v Mutton [2012] NSWSC 548 – cited.
Re Davies [2014] VSC 248 – cited.
Foley v Ellis [2008] NSWCA 288 – cited.
Freeman v Jaques [2006] 1 Qd R 318 – applied.
Frey v Frey [2009] QSC 43 – cited.
Larke v Nugus [2000] WTLR 1033 – considered.
Marks v Marks [2003] WASCA 297- cited.
Palmer v Dolman [2005] NSWCA 361 – cited.
Singer v Berghouse (1994) 181 CLR 210 – applied.
Re Sinnott [1948] VLR 279 – not followed.
Smith v Johnson [2015] NSWCA 297 – cited.
Stewart v Stewart [2015] QSC 238 – followed.
Vigolo v Bostin (2005) 221 CLR 191 – applied.
Warriner v Warriner [2015] VSC 314 – considered.
White v Barron (1980) 144 CLR 431 – applied.COUNSEL:
RD Williams for the applicants
AM Laylee for the respondentsSOLICITORS:
James and Co Lawyers for the applicants
CSG Law for the respondents
This is an application for provision under s 41 of the Succession Act 1981 (“the Act”). Gwenda Dawn Baker died on 20 March 2017, at the age of 76. She was survived by her husband, the first applicant, known as Noel,[1] and two sons, the second applicant (Mark) and the first respondent (Wayne). Wayne has two children, while Mark has three, one…
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- AGLC
- Baker v Baker [2019] QDC 92
- Case
- [2019] QDC 92
- Decision Date
CaseChat Overview and Summary
The court examined the evidence of need presented by both applicants, weighing the strength of their claims against the provisions in the deceased's will. Kenneth Noel Baker argued his need based on his relationship with the deceased and the absence of other support. Mark Kenneth Baker emphasised his financial dependency and the deceased's expressed intention to provide for him. The court also considered the disentitling conduct of Kenneth Noel Baker, who had been estranged from the deceased for many years. The quality of the relationships and the expressed intentions of the deceased were critical in assessing the respective claims.
After thorough consideration of the evidence and the legal principles governing family maintenance, the court ordered provision from the estate. Kenneth Noel Baker was granted $200,000, and Mark Kenneth Baker was granted $75,000. The court also exonerated specific bequests from certain clauses of the will and directed that the orders for provision first fall on the share of Hayden Kenneth Baker, and then rateably on the balance of the estate. The question of costs was adjourned to a later date.
Orders
Orders of the court
Order that provision be made from the estate of the deceased for the first applicant, KENNETH NOEL BAKER, in the sum of $200,000, and for the second applicant, MARK KENNETH BAKER, in the sum of $75,000.
Order that the specific bequests in clause 6(b), (c), (d) and (e) of the will be exonerated under s 41(4), and under s 41(3) that otherwise the orders for provision fall first on the share of the respondent HAYDEN KENNETH BAKER, and then rateably on the balance of the estate.
Adjourn the question of costs to 14 June 2019.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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