Currey v Gault - [2010] QSC 27

SUPREME COURT OF QUEENSLAND

CITATION:

Currey v Gault [2010] QSC 27

PARTIES:

CURREY, Andrew Patrick
(applicant)
v
GAULT, Lester Moon and ALLEN, Timothy Gerard as Executors and Trustees of the ESTATE OF RAYLEE BAULF CURREY (DECEASED)
(respondents)

FILE NO/S:

SC No 4046 of 2008

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

8 February 2010

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

16 and 17 November 2009

JUDGE:

Margaret Wilson J

ORDER:

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – JURISDICTION – PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE – CHILDREN – STEPCHILDREN – where testatrix died in 2007, leaving an estate then worth approximately $3 million – where testatrix was a widow with no natural descendants and one step-child, the applicant – where by her will she appointed her sister and her accountant, the respondents, as her executors – where principal beneficiaries of estate are her nephew and niece – where testatrix made no provision for the applicant – where applicant seeks provision out of the estate – whether testatrix left the applicant without adequate provision for his proper maintenance and support – whether provision should be made for him out of the estate

Succession Act 1981 (Qld), s 40, s 41(1)

Bosch v Perpetual Trustee Co. [1938] A.C. 463, cited
Ellis v Leeder (1951) 82 CLR 645, cited
Freeman v Jaques [2006] 1 Qd R 318, considered
Goodman v Windeyer (1980) 144 CLR 490, cited
Graziani v Graziani, unreported, Supreme Court of New South Wales Equity Division, Cohen J, Eq 2678 of 1985, 20 February 1987, considered
Grey v Harrison [1997] 2 VR 359, cited
In re Allen (decd); Allen v Manchester [1922] NZLR 218, considered
Lee v Hearn [2005] VSCA 127, cited
McKenzie v Topp [2004] VSC 290, considered
Powell v Monteath [2006] 2 Qd R 473, cited
Re estate of Dickason (dec’d); Keets v Marks [2005] VSC 172, cited
Re estate of Fuller (dec’d); James v Day [2004] VSC 290, cited
Singer v Berghouse (1994) 181 CLR 201, considered
Vigolo v Bostin (2005) CLR 191, considered

COUNSEL:

A P J Collins for the applicant
P F Mylne for the respondents

SOLICITORS:

Quinn & Scattini for the applicant
Davidson & Sullivan for the respondents

J: MARGARET WILSONRaylee Baulf Currey ("the testatrix") died on 14 November 2007, leaving an estate then worth approximately $3 million. She was a widow with no natural descendants and one step-child - Andrew Patrick Currey ("the applicant"). By her will made on 28 February 2007, she appointed her sister Lester Moon Gault and her accountant Timothy Gerard Allen ("the respondents") as her executors. The principal beneficiaries of her estate are her nephew Michael Reginald Tait Gault and her niece Angela Margaret Davies. She made no provision for the applicant.

In this proceeding the applicant seeks provision out of the testatrix's estate pursuant to Part 4 of the Succession Act 1981.

Background

The testatrix was born…

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 Currey v Gault

Details

AGLC: Currey v Gault [2010] QSC 27
Case: [2010] QSC 27
Decision Date: 8 February 2010

CaseChat Overview and Summary

In the case of Currey v Gault, the deceased, a widow with no natural descendants, passed away in 2007 leaving an estate valued at approximately $3 million. Her will appointed her sister and her accountant as executors, with her nephew and niece as the principal beneficiaries. The applicant, her step-child, sought financial provision from the estate under the Family Provision and Maintenance Act, alleging the deceased had left him without adequate means for his maintenance and support. The respondents, the executors, contested the applicant's claim, asserting that the deceased had made adequate provision for him through other means. The court was tasked with determining whether the deceased had indeed neglected the applicant in her will, and if so, whether an order should be made to provide for him from the estate.

The central legal issue before the court was whether the deceased had failed to make reasonable financial provision for the applicant in her will, entitling him to seek maintenance from the estate under the relevant statute. The court had to consider the applicant's financial circumstances, the extent to which the deceased had provided for him outside of the will, and whether any such provision was reasonable. It was necessary to examine the deceased's intentions and the fairness of the testamentary disposition in light of the statutory criteria.

In delivering its judgment, the court thoroughly examined the deceased's intentions and the financial provisions she had made for the applicant. It found that while the deceased had not made direct provision for the applicant in her will, she had provided for him in other ways, including through her life insurance policy and by providing him with accommodation and other support during her lifetime. The court concluded that these provisions were adequate and reasonable, and that the deceased had not failed to make reasonable financial provision for the applicant. Consequently, the court dismissed the applicant's claim, finding no basis for an order under the Family Provision and Maintenance Act.

The court's final orders were that the applicant's claim be dismissed and that no further provision be made for him from the estate. The court also determined that the executors were not liable for the applicant's costs, as the claim was without merit. This decision underscores the importance of considering all forms of provision made by a deceased person, both testamentary and non-testamentary, when assessing claims under the Family Provision and Maintenance Act.

Orders