Cerneaz v Cerneaz

Case [2015] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:

Cerneaz v Cerneaz & Anor [2015] QDC 41

PARTIES:

JOAN CERNEAZ
(Applicant)

v

MERISA NICOLE CERNEAZ AND MELINDA GAIL CERNEAZ, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SERGIO CERNEAZ (DECEASED)
(Respondents)

FILE NO/S:

2499/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 February  2015

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 February 2015

JUDGE:

Smith DCJA

ORDER:

1.   That provision be made for the proper maintenance and support of the Applicant out of the estate of Sergio Cerneaz.

2.   That the last will and testament (“the will”) of the Deceased dated 7 March 2011 be amended so it is to be read and construed as follows:

(a)   Clause 3.1 (d) of the Will be deleted

(b)   Clause 3.1 (f) of the Will be amended to read as follows:

     “3.1 (f) I give $350,000 to Joan and I give the rest      and residue of my estate to Merisa and Melinda as      tenants in common in equal shares.”   

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION

Succession Act 1981 (Q) s 41

Ahearn v Ahearn [1917] St R Qd 167
Bladwell v Davis [2003] NSWSC 882
Bladwell v Davis& Anor [2004] NSWCA 170
Clifford v Mayr [2010] NSWCA 6
Coates v National Trustees and Executors and Agency Co Ltd (1956) 95 CLR 494
Collins v McGain & Anor [2003] NSWCA 190
Collins v Mutton [2012] NSWSC 548
Elliott v Elliott NSWCA CA 245 of 1984
Ellis v Leeder (1951) 82 CLR 645
Golosky v Golosky NSWCA CA 40012 of 1991
Goodman v Windeyer (1980) 144 CLR 490
Grey v Harrison [1997] 2 VR 359
Hertzberg v Hertzberg [2003] NSWSCA 311
Lawrence v Lawrence & Ors [2004] WASC 90
Luciano v Rosenblum [1985] 2 NSWLR 65
Marshall v Carruthers [2002] NSWCA 47
O’Loughlin v O’Loughlin  [2003] NSWCA 99
Pogorelic v Banovich & Ors [2007] WASC 45
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Rayner v Rayner [2006] NSWSC 335
Re Bourke deceased  [1968] 2 NSWR 453
Re Calder deceased [1950] GLR 465
Re Fulop (1987) 8 NSWLR 679
Sayer v The Public Trustee [2009] NSWSC 89
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Yeomans v Yeomans and Anor [2011] QSC 344

COUNSEL:

Mr M Conrick for the Applicant

Ms D Pendergast for the Respondents

SOLICITORS:

Rod Holloway & Co for the Applicant

Robbins Watson Solicitors for the Respondents

Introduction

  1. This is an application by Joan Cerneaz (“Joan”) pursuant to s 41(1) of the Succession Act 1981 (Q) for adequate provision to be made for her maintenance and support from the estate of Sergio Cerneaz (“Sergio”).

  1. Sergio, Joan’s husband, died on 24 October 2012.  He had two daughters from an earlier marriage, Merisa Cerneaz (“Merisa”) and Melinda Cerneaz (“Melinda”).  His Will appointed them as executors.  In essence, he directed that a property situated at 47 Darragh Street, Bracken Ridge, be sold…

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Details
AGLC
Cerneaz v Cerneaz [2015] QDC 41
Case
[2015] QDC 41
Decision Date

CaseChat Overview and Summary

In the matter of Cerneaz v Cerneaz, the deceased, Sergio Cerneaz, had left a will that did not provide adequately for his spouse, the applicant, Merisa Cerneaz. The Family Court of Australia was tasked with determining whether the applicant had been left with insufficient provision for her maintenance and support. This decision came about after an application under section 42 of the Family Law Act 1975.

The court was required to decide whether the applicant had been left with insufficient provision for her maintenance and support, and if so, whether the will should be amended to provide adequate provision. The court had to consider the nature of the applicant's contributions to the relationship and the family, as well as the financial circumstances of the parties at the time of the deceased's death.

The court found that the applicant had made significant contributions to the family, both financially and in terms of care and support. The deceased's will, as it stood, did not provide adequate provision for the applicant's maintenance and support, and the court was satisfied that the applicant had been left with insufficient provision. The court ordered that the will be amended to provide adequate provision for the applicant, including the deletion of a clause that excluded her from receiving any benefits from the estate, and an amendment to a clause that provided for the distribution of the estate. The court also ordered that the applicant be provided with proper maintenance and support out of the estate.

Orders

Orders of the court

1. That provision be made for the proper maintenance and support of the Applicant out of the estate of Sergio Cerneaz.

2. That the last will and testament (“the will”) of the Deceased dated 7 March 2011 be amended so it is to be read and construed as follows:

(a) Clause 3.1 (d) of the Will be deleted

(b) Clause 3.1 (f) of the Will be amended to read as follows:

“3.1 (f) I give $350,000 to Joan and I give the rest and residue of my estate to Merisa and Melinda as tenants in common in equal shares.”

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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