Baker v Baker

[2019] QDC 92

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 respondents

SOLICITORS:

James and Co Lawyers for the applicants
CSG Law for the respondents

1. 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…