Banks v Seemann

[2008] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:	Banks v Seemann [2008] QSC 202
PARTIES:	KEVIN FREDRICK BANKS (applicant) v LORRAINE RITA SEEMANN as Executrix and Trustee of the estate of NORMA BANKS (deceased) (respondent)
FILE NO:	BS5294 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	2 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2008
JUDGE:	Mullins J
ORDER:	Application filed on 9 July 2008 is dismissed
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – PROCEDURE – ORDERS AND MATTERS – where application made to dismiss summarily claim for family provision – whether applicant’s affidavits establish a prima facie case Succession Act 1981, s 41 Higgins v Higgins [2005] 2 Qd R 502, considered Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, followed Singer v Berghouse (1994) 181 CLR 201, followed Vigolo v Bostin (2004) 221 CLR 191, considered
COUNSEL:	PD Tucker for the applicant DR Cooper SC for the respondent
SOLICITORS:	SR Wallace & Wallace for the applicant MacGillivrays for the respondent

1. MULLINS J:  The applicant and the respondent are the children of the late Norma Banks (the deceased).  The deceased died on 14 September 2007.  Probate of the deceased’s will made on 7 October 2005 was granted to the respondent on 17 December 2007 as executor named in the will.  Under the will the applicant receives a bequest in the sum of $200,000 and the residue of the estate is given to the respondent. 

1. By originating application filed on 6 June 2008 the applicant seeks further provision out of the deceased’s estate pursuant to s 41 of the Succession Act 1981 (the Act). By application filed on 9 July 2008, the respondent seeks an order that the applicant’s claim be summarily dismissed, on the basis that the material that he relies on does not establish a prima facie case.       

Background

1. The applicant was born in 1942.  At that time his parents resided with his mother’s parents.  In 1947 the applicant’s parents moved to their own home at Coorparoo, but the applicant continued to live with his mother’s parents.  The respondent was born in 1950.  When the respondent was three years old, the applicant moved to his parents’ house to live.  The applicant lived with his parents until he was 19 years old, when he married.

1. The applicant had left school at age 15 years to commence a five year apprenticeship as a panel beater.  At that stage his parents owned the business Buranda Motor Garage which was a mechanical business that did engine repairs and like jobs.  The applicant’s parents owned the freehold on which the business was located. 

1. The applicant and his father discussed changing the nature of his father’s business (which was declining) to one of panel beating and spray painting.  When the applicant completed his apprenticeship, he went to work in his father’s business.  The name of the business was changed to Buranda Motor Body Works.  The applicant worked with his father in…