Condello v Kim

The appeal was brought by three adult children of the deceased against the decision of the Supreme Court to dismiss their application for an order under the Succession Act 2006 (Qld) for an increased provision for the deceased's disabled adult child. The deceased had made a will leaving his property to his three children in equal shares. The deceased's disabled child had not lived with the family for many years due to estrangement. The disabled child had previously made a declaration of no interest in the property in the Family Court by consent. The appellants sought an order that the deceased had an obligation to provide for the disabled child and that their equal share of the estate was inadequate.
The court was required to determine whether the deceased had a proprietary estoppel or an issue estoppel, res judicata or Anshun estoppel arising from the earlier Family Court proceedings. The court also had to consider the adequacy of the provision for the disabled child under the Succession Act. The court had to decide whether the estrangement of the disabled child from the family was relevant to the obligation of the deceased to provide for the disabled child.
The court held that the declaration of no interest made by the disabled child in the Family Court did not give rise to proprietary estoppel because there were no representations made by the deceased that induced the disabled child to believe that he would receive an interest in the property. The court also held that the declaration did not give rise to issue estoppel, res judicata or Anshun estoppel because the issues in the Family Court proceedings were different from those in the succession proceedings. The court further held that the estrangement of the disabled child from the family did not affect the obligation of the deceased to provide for the disabled child. However, the court held that the disabled child's needs were not so exceptional as to require a departure from the equal division of the estate. The court dismissed the appeal.
The court made no orders for costs.