Fenton-Anderson v Power (No 2) - [2020] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION

Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294

PARTIES:

PETA DIVINA ALEXANDRA FENTON-ANDERSON & TONI LEIGH DOLORES FENTON-LESLIE

(Applicants)

V

DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)

(Respondents)

AND

SUZANNE MICHELLE FENTON

(Respondent by election)

FILE NO:

DC 42/18 No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

1.   I will hear the parties as to the form of orders to give effect to these reasons, including as to costs.

CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants apply under s. 41(1) of the Succession Act 1981 (Qld) for further provision of the deceased’s estate – where the applicants are the daughters of the deceased – where the respondent by election is the mother of the applicants and ex-wife of the deceased – where the main asset of the estate is a home situated on a 200 acre property – where the respondent by election continues to reside on the property – where the respondent by election receives NDIS payments – whether the respondent by election can continue to maintain the property in accordance with the terms of the will – whether it is necessary or desirable for the respondent by election to continue residing there – whether adequate provision is currently made for the applicants under the will

SUCCESSION – FAMILY PROVISION – CRITERIA FOR DETERMINING APPLICATION – GENERALLY – CIRCUMSTANCES TO BE CONSIDERED – where the respondent by election is the ex-wife of the deceased – where the deceased and respondent by election divorced in 1983 – where the nature of the relationship between the deceased and respondent by election was one of the main issues in contention at trial – where the deceased and respondent by election continued to reside under the same room from 1991 until the date of death in 2017 – whether there was a de facto relationship between the deceased and respondent by election– whether the respondent by election is otherwise an eligible application to apply for further provision.

LEGISLATION:
Acts Interpretation Act 1954 (Qld) s. 32DA
Succession Act 1981 (Qld) ss. 5AA; 41(1)

CASES:

Camernik v Reholc [2012] NSWSC 1537
Darveniza v Darveniza [2014] QSC 37
Gersbach v Blake [2011] NSWSC 368
Niebour-Pott & Anor v Pott [2020] QSC 7
Spencer v Burton [2016] 2 Qd R 215
Tomasevic v Travaglini (2007) 17 VR 100

SECONDARY SOURCES:

John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5^th ed, 2016)
William Anthony Lee, Lee’s Manual of Queensland succession law (Lawbook Co., 8^th ed, 2019)

COUNSEL:
SOLICITORS:

K C Kelso for the applicants
A P Collins for the respondent executors
Respondent by election self-represented

Wonderley & Hall…

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.

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Details

Case: [2020] QDC 294
Decision Date: 20 November 2020

CaseChat Overview and Summary

The applicants, daughters of the deceased, brought a claim under section 41(1) of the Succession Act 1981 (Qld) seeking further provision from the estate of their father. The respondent by election, the mother of the applicants and ex-wife of the deceased, elected to take under the will. The primary asset of the estate was a home on a 200-acre property, where the respondent by election continued to reside. The applicants argued that the respondent by election was not adequately provided for under the will and that it was necessary or desirable for her to continue residing on the property. The court was required to determine whether adequate provision was made for the applicants and whether the respondent by election could maintain the property.

The court considered whether the respondent by election could continue to maintain the property in accordance with the terms of the will and whether it was necessary or desirable for her to continue residing there. The court also considered the nature of the relationship between the deceased and the respondent by election, whether they had a de facto relationship, and whether the respondent by election was an eligible applicant to apply for further provision. The court found that the respondent by election was not adequately provided for under the will and that it was necessary or desirable for her to continue residing on the property.

The court ordered that the parties would be heard as to the form of orders to give effect to these reasons, including as to costs. The court found that the respondent by election was not adequately provided for under the will and that it was necessary or desirable for her to continue residing on the property. The court found that the applicants were also not adequately provided for under the will and that it was necessary or desirable for them to receive further provision from the estate. The court made orders for further provision to be made to the applicants and the respondent by election.

Orders

Orders of the court

1. I will hear the parties as to the form of orders to give effect to these reasons, including as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION	Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294
PARTIES:	PETA DIVINA ALEXANDRA FENTON-ANDERSON & TONI LEIGH DOLORES FENTON-LESLIE (Applicants) V DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased) (Respondents) AND SUZANNE MICHELLE FENTON (Respondent by election)
FILE NO:	DC 42/18 No 1186 of 2018
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	20 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	14, 15 July 2020
JUDGE:	Porter QC DCJ
ORDERS:	1. I will hear the parties as to the form of orders to give effect to these reasons, including as to costs.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants apply under s. 41(1) of the Succession Act 1981 (Qld) for further provision of the deceased’s estate – where the applicants are the daughters of the deceased – where the respondent by election is the mother of the applicants and ex-wife of the deceased – where the main asset of the estate is a home situated on a 200 acre property – where the respondent by election continues to reside on the property – where the respondent by election receives NDIS payments – whether the respondent by election can continue to maintain the property in accordance with the terms of the will – whether it is necessary or desirable for the respondent by election to continue residing there – whether adequate provision is currently made for the applicants under the will SUCCESSION – FAMILY PROVISION – CRITERIA FOR DETERMINING APPLICATION – GENERALLY – CIRCUMSTANCES TO BE CONSIDERED – where the respondent by election is the ex-wife of the deceased – where the deceased and respondent by election divorced in 1983 – where the nature of the relationship between the deceased and respondent by election was one of the main issues in contention at trial – where the deceased and respondent by election continued to reside under the same room from 1991 until the date of death in 2017 – whether there was a de facto relationship between the deceased and respondent by election– whether the respondent by election is otherwise an eligible application to apply for further provision.
LEGISLATION:	Acts Interpretation Act 1954 (Qld) s. 32DA Succession Act 1981 (Qld) ss. 5AA; 41(1)
CASES:	Camernik v Reholc [2012] NSWSC 1537 Darveniza v Darveniza [2014] QSC 37 Gersbach v Blake [2011] NSWSC 368 Niebour-Pott & Anor v Pott [2020] QSC 7 Spencer v Burton [2016] 2 Qd R 215 Tomasevic v Travaglini (2007) 17 VR 100
SECONDARY SOURCES:	John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5^th ed, 2016) William Anthony Lee, Lee’s Manual of Queensland succession law (Lawbook Co., 8^th ed, 2019)
COUNSEL: SOLICITORS:	K C Kelso for the applicants A P Collins for the respondent executors Respondent by election self-represented Wonderley & Hall…