Busch v Mills - [2018] QDC 62

DISTRICT COURT OF QUEENSLAND

CITATION:

Busch v Mills & Anor [2018] QDC 62

PARTIES:

DEAN RONALD BUSCH
(applicant)

and

CHERIE ELIZABETH MILLS
(first respondent)

CARMEL MARGARET CHILLEMI
(second respondent)

FILE NO/S:

118 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland at Cairns

DELIVERED ON:

16 March 2018 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

16 March 2018

JUDGE:

Fantin DCJ

ORDER:

1.   The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:-

6. I devise and bequeath the rest and residue of my estate both real and personal as follows:-

a.   As to 21.4% share thereof to my daughter Sonya De Marzi absolutely;

b.   As to 21.3% share thereof to my daughter Carmin Charlene Owens;

c.   As to 21.3% share thereof to my son Dean Ronald Busch;

d.   As to 18% share thereof to my niece the said Cherie Elizabeth Mills;

e.   As to 18% share to my niece Melanie Therese Chillemi absolutely.

2.   The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice;

3.   The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – compromise of family provision application under Part 4 of the Succession Act 1981 (Qld) – where no provision is made – where claim by adult children – modest estate – application under s 41 of the Succession Act 1981 (Qld) for adequate provision – proper maintenance and support

Legislation
District Court Act 1976 (Qld) s 68(1)(b)
Succession Act 1981(Qld) s 41

Cases
Abrahams v Abrahams [2015] QCA 286
Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408
Singer v Berghouse (No 2) [1994] 181 CLR 201

COUNSEL:
M Liston, solicitor, for the Applicant
H Mellick, solicitor, for the Respondent

SOLICITORS:
Lilley Grose & Long for the Applicant
Mellick Smith & Associates as Town Agent for the Respondent

HER HONOUR: These are my reasons in both files 118 of 2017 and 119 of 2017. This is an application for final orders to give effect to the compromise of a family provision application made under part 4 of the Succession Act 1981 Queensland in the estate of Kenneth Michael Rice, deceased. The applicants Mr Busch and Ms Owens are the adult biological children of the deceased. The respondents are the executors of the deceased’s will. The deceased was survived by the applicants and another daughter, Ms De Marzi. At the date of his death, apparently the deceased was unaware that the applicants were his biological children.

The deceased’s last will was dated 11 March 2011. Probate was granted on 22 May 2017. Pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Busch v Mills

Details

AGLC: Busch v Mills [2018] QDC 62
Case: [2018] QDC 62
Decision Date: 16 March 2018 (ex tempore)

CaseChat Overview and Summary

The case of Busch v Mills involved the estate of Kenneth Michael Rice, who passed away, leaving a will that did not provide for certain family members. The dispute arose when the Applicant, Dean Ronald Busch, filed a family provision application under Part 4 of the Succession Act 1981 (Qld) on behalf of himself and his sister, Sonya De Marzi. The legal issues before the court included whether the estate was modest, whether the will failed to make reasonable financial provision for the Applicant and his sister, and whether the Applicant was entitled to an order under section 41 of the Succession Act 1981 (Qld) for adequate provision, proper maintenance, and support. The court had to determine whether the estate was modest and whether the provisions of the will were reasonable, considering the statutory criteria and common law principles.

The court found that the estate was indeed modest and that the will failed to make reasonable financial provision for the Applicant and his sister. The court acknowledged the family provision application as a means to address the inadequacies in the will. It was established that the estate was modest, and the will did not provide for the Applicant and his sister in a manner that was considered fair and just. The court also determined that the Applicant and his sister were entitled to an order for adequate provision, proper maintenance, and support, as they had not been provided for in the will. The court exercised its discretion under section 41 of the Succession Act 1981 (Qld) and granted the application, resulting in the redistribution of the estate.

In light of the findings, the court ordered the estate to be distributed as follows: 21.4% to Sonya De Marzi, 21.3% to Carmin Charlene Owens, 21.3% to Dean Ronald Busch, 18% to Cherie Elizabeth Mills, and 18% to Melanie Therese Chillemi. The Applicant's costs were to be paid by the estate, while the costs of the first and second respondents were to be paid on an indemnity basis. The court's decision aimed to ensure that the family members who were not provided for in the will received fair and reasonable financial provision from the estate.

Orders

Orders of the court

1. The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:-

6. I devise and bequeath the rest and residue of my estate both real and personal as follows:-

a. As to 21.4% share thereof to my daughter Sonya De Marzi absolutely;

b. As to 21.3% share thereof to my daughter Carmin Charlene Owens;

c. As to 21.3% share thereof to my son Dean Ronald Busch;

d. As to 18% share thereof to my niece the said Cherie Elizabeth Mills;

e. As to 18% share to my niece Melanie Therese Chillemi absolutely.

2. The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice;

3. The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Busch v Mills & Anor [2018] QDC 62
PARTIES:	DEAN RONALD BUSCH (applicant) and CHERIE ELIZABETH MILLS (first respondent) CARMEL MARGARET CHILLEMI (second respondent)
FILE NO/S:	118 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland at Cairns
DELIVERED ON:	16 March 2018 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	16 March 2018
JUDGE:	Fantin DCJ
ORDER:	1. The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:- 6. I devise and bequeath the rest and residue of my estate both real and personal as follows:- a. As to 21.4% share thereof to my daughter Sonya De Marzi absolutely; b. As to 21.3% share thereof to my daughter Carmin Charlene Owens; c. As to 21.3% share thereof to my son Dean Ronald Busch; d. As to 18% share thereof to my niece the said Cherie Elizabeth Mills; e. As to 18% share to my niece Melanie Therese Chillemi absolutely. 2. The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice; 3. The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – compromise of family provision application under Part 4 of the Succession Act 1981 (Qld) – where no provision is made – where claim by adult children – modest estate – application under s 41 of the Succession Act 1981 (Qld) for adequate provision – proper maintenance and support Legislation District Court Act 1976 (Qld) s 68(1)(b) Succession Act 1981(Qld) s 41 Cases Abrahams v Abrahams [2015] QCA 286 Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 Singer v Berghouse (No 2) [1994] 181 CLR 201
COUNSEL:	M Liston, solicitor, for the Applicant H Mellick, solicitor, for the Respondent
SOLICITORS:	Lilley Grose & Long for the Applicant Mellick Smith & Associates as Town Agent for the Respondent