Fenton-Anderson v Power (No 3) - [2020] QDC 317

DISTRICT COURT OF QUEENSLAND

CITATION:

Fenton-Anderson & Anor v Power & Anor (No 3) [2020] QDC 317

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:

10 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

1.    Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by reading and construing the last will of the deceased dated 22 April 2020 (the Will) as if it omitted clause 5 and included instead the following clause:

5.    I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:-

(a)       I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:-

(i) as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie;
(ii) as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson;
(iii) as to $50,000.00 thereof upon trust for such of them my grandchildren namely:

Jay Stanley Fenton-Anderson
Jordon Hope Fenton-Anderson
Paige Grace Fenton-Anderson
Kai Joseph Fenton-Leslie; and
Tyla Susan Fenton-Leslie

with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years.

(b)      As to the balance remaining thereafter, to be held as part of the rest and residue of estate.

2.   The respondent executors’ costs of the proceedings be paid out of the estate on the indemnity basis.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where judgment was delivered in a family provision application – where the effect of the judgment was to order further provision for the applicants, inclusive of costs – where the consequence of the judgment was to order the sale of property which the respondent by election resides in – whether the Court has power to order possession as an incident of the power to order provision – whether any such power should be exercised the Court – whether the Court has power to order payment of a debt due by the residuary beneficiary to the applicants as an incident of the power to order provision

LEGISLATION
District Court Act 1967 (Qld) ss. 68(1)(b)(xi); 68(1)(b)(vii); 68(1)(b)(x); 68(1)(b)(xiii); 68(3)(b)

Succession Act 1981 (Qld) ss. 6(1); 41(1); 41(2)(a); 41(8)
Trusts Act

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.

Keep reading for free

Create a free CaseChat account to read Fenton-Anderson v Power (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] QDC 317
Decision Date: 10 December 2020

CaseChat Overview and Summary

The matter before the court involved a family provision application by Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, who sought adequate provision for their maintenance and support out of the estate of David Joseph Fenton, deceased. The court was asked to determine whether the property, which the respondent, the executor of the estate, resided in, should be sold and whether the court had the authority to order the payment of a debt owed by the residuary beneficiary to the applicants. The application was heard in the Supreme Court of Queensland.

The legal issues at hand revolved around the interpretation and execution of the deceased's will, the scope of the court's powers under the Family Provision Act 1975, and the appropriateness of ordering the sale of the respondent's residence. The court needed to decide whether it had the authority to order possession as an incident of the power to order provision and if such a power should be exercised in this case. Additionally, the court had to consider whether it could order the payment of a debt due by the residuary beneficiary to the applicants as an incident of the power to order provision.

The court found that the applicants were not provided for adequately under the terms of the will. The court exercised its discretion to modify the will by omitting clause 5 and replacing it with a new clause that directed the sale of the Cambooya Property and the distribution of the net proceeds. The court held that it had the power to order the sale of the property and that it was appropriate to do so in this case, given the respondent's election to reside in it. The court also determined that it could order the payment of the debt from the residuary beneficiary to the applicants.

The orders made by the court mandated that adequate provision be made for the applicants' maintenance and support by selling the Cambooya Property and distributing the net proceeds as outlined in the court's modified will. The respondent's costs were to be paid out of the estate on an indemnity basis.

Orders

Orders of the court

1. Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by reading and construing the last will of the deceased dated 22 April 2020 (the Will) as if it omitted clause 5 and included instead the following clause:

5. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:-

(a) I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:-

(i) as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie;

(ii) as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson;

(iii) as to $50,000.00 thereof upon trust for such of them my grandchildren namely:

Jay Stanley Fenton-Anderson

Jordon Hope Fenton-Anderson

Paige Grace Fenton-Anderson

Kai Joseph Fenton-Leslie; and

Tyla Susan Fenton-Leslie

with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years.

(b) As to the balance remaining thereafter, to be held as part of the rest and residue of estate.

2. The respondent executors’ costs of the proceedings be paid out of the estate on the indemnity basis.

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 3) [2020] QDC 317
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:	10 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2020
JUDGE:	Porter QC DCJ
ORDERS:	1. Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by reading and construing the last will of the deceased dated 22 April 2020 (the Will) as if it omitted clause 5 and included instead the following clause: 5. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:- (a) I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:- (i) as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie; (ii) as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson; (iii) as to $50,000.00 thereof upon trust for such of them my grandchildren namely: Jay Stanley Fenton-Anderson Jordon Hope Fenton-Anderson Paige Grace Fenton-Anderson Kai Joseph Fenton-Leslie; and Tyla Susan Fenton-Leslie with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years. (b) As to the balance remaining thereafter, to be held as part of the rest and residue of estate. 2. The respondent executors’ costs of the proceedings be paid out of the estate on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where judgment was delivered in a family provision application – where the effect of the judgment was to order further provision for the applicants, inclusive of costs – where the consequence of the judgment was to order the sale of property which the respondent by election resides in – whether the Court has power to order possession as an incident of the power to order provision – whether any such power should be exercised the Court – whether the Court has power to order payment of a debt due by the residuary beneficiary to the applicants as an incident of the power to order provision
LEGISLATION	District Court Act 1967 (Qld) ss. 68(1)(b)(xi); 68(1)(b)(vii); 68(1)(b)(x); 68(1)(b)(xiii); 68(3)(b) Succession Act 1981 (Qld) ss. 6(1); 41(1); 41(2)(a); 41(8) Trusts Act