DW v RW

[2013] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

DW v RW  [2013] QDC 163

PARTIES:

DW
(Applicant)

and

RW (As executor of the Will of JW deceased)
(Respondent)

FILE NO/S:

RD54/2011

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Rockhampton

DELIVERED ON:

Rockhampton

DELIVERED AT:

19 July 2013

HEARING DATE:

18, 19, 20 and 21 June 2013

JUDGE:

Smith DCJ

ORDER:

1.   That provision be made for the proper maintenance and support of DW out of the estate of JW by payment of a lump sum of $50,000

2.   Written submissions on the question of costs to be filed and served by the parties within 14 days 

CATCHWORDS:

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

Criminal Law (Sexual offences) Act 1978 (Q)

Succession Act 1981 (Q) s 41

Andrew v Andrew [2011] NSWSC 115
Bladwell v Davis [2003] NSWSC 882
Briginshaw v Briginshaw (1938) 60 CLR 336
Coates v National Trustees and Executors and Agency Co Ltd (1956) 95 CLR 494
Collins v McGain [2012] NSWCA 190
Collins v Mutton [2012] NSWSC 548
Dawson v Joiner [2011] QSC 385
Ellis v Leeder (1951) 82 CLR 645
Grey v Harrison [1997] 2 VR 359
Herr v Fitzgibbon [2008] NSWSC 297
McKay v R (1935) 54 CLR 1
Messenger v Kelly [2008] QDC 125
Parker v Parker [2006] NSWSC 473
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Beard [1963] Qd R 90
Re Fulop (1987) 8 NSWLR 679
Ross v R (1922) 30 CLR 246
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

COUNSEL:

Ms C  Brewer for the Applicant
Mr S  Deaves for the Respondent

SOLICITORS:

Thynne and McCartney for the Applicant
Grant and Simpson for the Respondent

Introduction

1. This is an application by the Applicant, DW, for an order pursuant to s 41 of the Succession Act 1981 (Q) (“the Act”) for provision from the estate of JW, his mother (“the mother”).

1. I have not published the names of the parties because of the provisions of the Criminal Law (Sexual Offences) Act 1978.

1. In my view publication of the names may lead to identification of the daughters of RW, DW and KW, who were complainants against SW.

1. I have placed with the file a list of the identities of the parties and properties.  

1. The trial proceeded over four days between 18 June 2013 and 21 June 2013.  The parties filed and relied upon a number of affidavits. 

1. I have had regard to the contents of the affidavits, the oral evidence, the submissions made by counsel and the exhibits in reaching my decision in this matter.

1. I was greatly assisted by the way in which the witnesses presented in the witness box in making the findings of fact in this matter.

The background

1. The mother died on 4 February 2011.  Her last will (Exhibit 1-DGW1) appointed her son RW as sole executor and trustee of her will. 

1. She gave her property at Caroline Street…