Burgess v Abbott

[2017] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Burgess v Abbott & anor [2017] QDC 323

PARTIES:

ROBERT WARWICK BURGESS
(plaintiff)

v

JOHANNA MARY ABBOTT
(first defendant)

&

JENNIFER ANNE McPERSON
(second defendant)

FILE NO/S:

68 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District court in Southport

DELIVERED ON:

15 September 2017 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

15 September 2017

JUDGE:

Muir DCJ

ORDER:

1.   Further provision be made for the proper maintenance and support of the applicant by way of provision in the sum of $15,000 in addition to the applicant’s existing entitlement under the Will of the deceased dated 24 July 2009.

2.   The applicant bear his own costs of and incidental to the proceeding.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION –  where deceased is survived by three children - where applicant is the son of the deceased – where the respondents are daughters of the deceased – where the applicant has made unpaid contributions to the family farm – where settlement of the substantial claim has been reached to reduce further legal costs – where courts discretion is required to give effect to the terms of settlement – whether applicant left with insufficient provision.

Succession Act 1981 (Qld), section 41(1)

Abrahams v Abrahams [2015] QCA 286, considered
Affoo v Public Trustee of Queensland [2011] QSC 309, cited
Singer v Berghouse 2 [1994] 181 CLR 201, followed
Vigolo v Bostin [2005] 221 CLR 191, cited
Watts v Public Trustee of Queensland [2010] QSC 410, followed

SOLICITORS:

Ramsden Lawyers for the plaintiff

Parsons Law for the defendants

Introduction

1. This is an application for orders to put into effect the settlement of a family provision application filed on 14 of March 2017. I have determined in the exercise of my discretion to make the orders sought. These are my reasons.

1. Unfortunately, when the application came before me, I was not provided with any assistance by way of written or oral submissions. The applicant’s solicitor, when I asked her, could not and did not assist me in any way regarding the relevant considerations.  In the future, parties who appear in this court on such applications are to be prepared to address the relevant considerations and be prepared to assist the court in identifying the matters relevant to the court’s discretion, in particular jurisdictional issues.

1. Parties should not assume the jurisdictional issue is a rubberstamp matter.  If, in the future, parties have a genuine concern about that issue, then, of course, settlement agreements can be reached without final orders being sought from the Court. Whilst I accept that this course may pose some discomfort to executors who are placed in such a position, I do not wish, in the future, by having acceded to the orders sought in this case, to be taken to, in any way, encouraging ill-considered or unmeritorious applications for family provision.

1. In the present case, the deceased died…