Drabsch v Drabsch

[2011] QDC 90

[2011] QDC 90

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3482 of 2008

MARLENE DRABSCH	Applicant
and
JET CRAIG DRABSCH	Respondent

BRISBANE

..DATE 18/05/2011

ORDER

CATCHWORDS

Succession Act 1981 s 41
Uniform Civil Procedure Rules r 666, r 982(2)

Widow's application for increased provision under her late husband's will - registrar not authorised by Practice Direction to make the consent order for increased provision presented by the parties - appearances by them in court not required application dealt with as one "on the papers" - subject to exonerated legacies, whole estate goes to applicant

HIS HONOUR: This is an application by a widow under section 41 of the Succession Act 1981. The relevant parties have agreed on a suitable outcome and submitted a consent order embodying it to the Registrar pursuant to rule 666. The Registrar declined to make the order as the matter did not come within the scope of Practice Directions number 4 of 2010. At the request of the applicant's solicitor, the matter has been referred to a judge pursuant to rule 982(2) of the UCPR.

Communication occurred yesterday by the solicitors to the Chambers of another judge who was apparently understood to be the applications judge today.  The point of those was to seek the court's permission in the interests or reducing costs to dispense with appearances in court.  All those concerned, including the lawyers, are in Chinchilla.  The application was dealt with “on the papers”.

The deceased, who left a last will dated the 30th January 2007, was married to two other women before he married the applicant.  She is in her early 50s and essentially has nothing except what she takes under the will, which is one-half of the residuary estate.

The whole estate is relatively modest, the valuations obtained to this time being less than $460,000 in total.  There were eight children, including two of the applicant.  All eight received legacies of $5,000, which the applicant has "exonerated".

The applicant's two children, in addition to their legacies, receive one each of the testator's two properties, the estimated values of which are $30,000 and $18,000, also a quarter share of the residuary estate estimated to have a value of to each of them of $92,925.

The applicant's distribution is expected to be twice that.  She suffers from a number of serious medical complaints, for which she's on medication.  The marriage lasted for 22 years, throughout which the applicant was fully dependant on the testator.  When he became too ill to work she cared for him.

She has minimal assets, apart from a motor vehicle on which she owes $20,000.  She can't support herself without a Centrelink benefit.  The agreement, which has been reached, involves her son, who is the respondent (and the co-executor named in the will with the applicant) and her daughter foregoing their benefits in the interests of the mother.

As the helpful submissions filed on behalf of the applicant on the 17th May 2001 observe, there's no information before the court as to the financial positions of those two beneficiaries who are yielding the vast bulk of what they receive under the will.

However, they are of age, albeit marginally in one case, and have legal advice; it's understandable and commendable that they make the gesture which they have in support of their mother, which, in any event, the court is persuaded represents appropriate provision for her under the Succession Act.

The court will initial the draft proffered and formally today make an order in terms of it.  It requires the will to be construed as leaving the two parcels of real property and the whole of the residuary estate to the applicant.  Costs on an indemnity basis calculated in accordance with the applicant's client agreement with her lawyers are to come out of the estate and alo, as in the ordinary course, the costs of the respondent executor.

I have to correct something that was said earlier to the effect that the applicant's son is the co-executor with her named in the will.  That co-executor is Jet Craig Drabsch, who was born of the deceased's first wife, on the 29th July 1960.

Order as per initialled draft.

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