Dawson v Joyner

[2011] QSC 385

SUPREME COURT OF QUEENSLAND

CITATION:

Dawson v Joyner  [2011] QSC 385

PARTIES:

GARRY DANIEL DAWSON

(Applicant)

And

LEIGH JAMES JOYNER (as executor of the Will of Daniel Dawson deceased)

( Respondent)

FILE NO/S:

S355 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

12 December 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

5 December 2011

JUDGE:

McMeekin J

ORDER:

Application is dismissed.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED –SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – where applicant not provided for in large estate – where applicant is adult son – where applicant estranged from deceased – where the only other son is the sole beneficiary under the will – where that beneficiary has considerable wealth – where applicant has assets and gainful employment – whether an order for adequate provision should be made

Succession Act 1981 (Qld)

Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494

Collicoat and Ors v Mcmillan and Anor [1999] 3 VR 803

Goodman v Windeyer (1980) 54 ALJR 470

Gorton v Parks (1989) 17 NSWLR 1

Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134

McCosker v McCosker (1957) 97 CLR 566

Palmer v Dolman [2005] NSWCA 361

Re Sinnott [1948] VLR 279

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 221 CLR 191

Walker v Walker (unreported, NSWSC, 17 May 1996)

COUNSEL:

GC Crow SC and AM Arnold for the applicant

L Nevison for the respondent

SOLICITORS:

Johnson Law Pty Ltd for the applicant

Rees R & Sydney Jones for the respondent

1. McMeekin J:  The applicant is Garry Daniel Dawson. He is a son of Daniel Dawson, deceased (“the testator”). He seeks an order under Part IV of the Succession Act 1981 (Qld) for further provision out of the estate of his late father.

1. The respondent, Mr Leigh Joyner, is the executor of the estate of the deceased and opposes the application. He is supported in that opposition by the only other child of the deceased, Ross Hamilton Dawson. There is another beneficiary under the last will of the testator who was not served as it is not intended that her entitlement be affected in any way by any order made.

1. Without meaning any disrespect I will refer to the family members by their Christian names for ease of reference.

Relevant Principles

1. The application is brought pursuant to s41(1) of the Succession Act 1981 which provides:

“Estate of deceased person liable for maintenance

If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision…