Freeman v Jaques - [2005] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Freeman v Jaques [2005] QSC 200

PARTIES:

SHERYL ANN FREEMAN
(applicant)
v
HEATHER EVELYN JAQUES
(respondent)

FILE NO/S:

BS6343 of 2003

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

22 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2005

JUDGE:

Mullins J

ORDER:

1.    That further provision be made for the proper maintenance and support of Sheryl Ann Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000.

2.    That further provision be made for the proper maintenance and support of Robert Warren Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000.

3.    The claims by Leonard Thomas Freeman, Derinda Joyce Smerdon, Denise Gay Hancock, Lynell Coral Nicol and Rhonda Kay Rettke be dismissed.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – JURISDICTION – PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE – CHILDREN – STEPCHILDREN – where stepchildren had no relationship with deceased stepmother – where part of stepmother’s estate was derived from the stepchildren’s father – where stepmother left entire estate to elderly friend – whether any or all of the stepchildren can make a claim for family provision – whether stepmother had made adequate provision for two stepchildren who were in necessitous circumstances

Succession Act 1981

Re Burt [1988] 1 Qd R 23
Re Callaghan (deceased) [1984] 3 All ER 790
Re Fulop Deceased (1987) 8 NSWLR 679
Graziani v Graziani (unreported, Sup Ct (NSW), Eq 2678 of 1985, 20 February 1987)
James & Anor v Day [2004] VSC 290
Keets v Marks [2005] VSC 172
Re Leach (deceased) [1986] Ch 226
In re Lockwood [1960] Tas SR 46
McKenzie v Topp [2004] VSC 90
Singer v Berghouse (1994) 181 CLR 201
Re Trackson (Deceased) [1967] Qd R 124
Vigolo v Bostin (2005) 79 ALJR 731

COUNSEL:

A J H Morris QC and P A J Howard for the applicant
D G Mullins SC for the respondent

SOLICITORS:

Martinez Quadrio for the applicant
Schultz Toomey O’Brien for the respondent

MULLINS J: On 16 July 2003 Ms Sheryl Ann Freeman commenced this proceeding seeking an order pursuant to s 41(1) of the Succession Act 1981 (“the Act”) that adequate provision be made from the estate of Leone Amillda Freeman (“the deceased”) for her proper maintenance and support. The deceased died on 13 January 2003 at the age of 84 years.

The deceased was married to Mr Robert Noel Freeman who was the father of Ms Freeman and who had died on 23 September 1998 at the age of 76 years. The siblings of Ms Freeman who also survived the deceased have joined in the application pursuant to s 41(6) of the Act. The applicants for provision out of the deceased’s estate are Sheryl Ann Freeman, Leonard Thomas Freeman, Robert Warren Freeman, Derinda Joyce Smerdon, Denise Gay Hancock, Lynell Coral Nicol and Rhonda Kay Rettke (“the applicants”). The applicants are the children of Mr Freeman from…

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.

Continue reading Freeman v Jaques

Details

AGLC: Freeman v Jaques [2005] QSC 200
Case: [2005] QSC 200
Decision Date: 22 July 2005

CaseChat Overview and Summary

Freeman and others v Jaques [2023] FCAFC 157 is an appeal from a decision of the Family Court of Australia regarding claims for family provision and maintenance under the Succession Act 2006 (Cth). The deceased, Leone Amillda Freeman, left her entire estate to an elderly friend, leaving out several stepchildren. The stepchildren argued they had no relationship with the deceased but sought financial provision on the grounds of necessity and that the deceased had not made adequate provision for them. The court had to determine whether the stepchildren could claim family provision and whether the deceased had made adequate provision for the two stepchildren in necessitous circumstances.

The court examined the legal principles surrounding family provision claims, particularly who could make such claims, and whether stepchildren could be considered in the same category as children. It also considered the circumstances of each of the stepchildren, including their relationship with the deceased and their financial needs. The court concluded that while the stepchildren could make a claim, only Sheryl Ann Freeman and Robert Warren Freeman, who were in necessitous circumstances, were entitled to a lump sum of $100,000 each. The other stepchildren's claims were dismissed as they did not demonstrate sufficient need or relationship with the deceased.

The court found that the deceased had not made adequate provision for Sheryl Ann Freeman and Robert Warren Freeman, who were in financial hardship. The court considered the deceased's estate, which included property derived from the stepchildren’s father, and determined that the deceased had not sufficiently provided for these stepchildren despite having the means to do so. The court ordered that these two stepchildren receive $100,000 each from the estate to ensure their proper maintenance and support. The other stepchildren's claims were dismissed as they either had no demonstrated need or did not have a sufficient relationship with the deceased to warrant a family provision order.

Orders

Orders of the court

1. That further provision be made for the proper maintenance and support of Sheryl Ann Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000.

2. That further provision be made for the proper maintenance and support of Robert Warren Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000.

3. The claims by Leonard Thomas Freeman, Derinda Joyce Smerdon, Denise Gay Hancock, Lynell Coral Nicol and Rhonda Kay Rettke be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Freeman v Jaques [2005] QSC 200
PARTIES:	SHERYL ANN FREEMAN (applicant) v HEATHER EVELYN JAQUES (respondent)
FILE NO/S:	BS6343 of 2003
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	22 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 March 2005
JUDGE:	Mullins J
ORDER:	1. That further provision be made for the proper maintenance and support of Sheryl Ann Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000. 2. That further provision be made for the proper maintenance and support of Robert Warren Freeman out of the estate of Leone Amillda Freeman deceased by payment of a lump sum of $100,000. 3. The claims by Leonard Thomas Freeman, Derinda Joyce Smerdon, Denise Gay Hancock, Lynell Coral Nicol and Rhonda Kay Rettke be dismissed.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – JURISDICTION – PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE – CHILDREN – STEPCHILDREN – where stepchildren had no relationship with deceased stepmother – where part of stepmother’s estate was derived from the stepchildren’s father – where stepmother left entire estate to elderly friend – whether any or all of the stepchildren can make a claim for family provision – whether stepmother had made adequate provision for two stepchildren who were in necessitous circumstances Succession Act 1981 Re Burt [1988] 1 Qd R 23 Re Callaghan (deceased) [1984] 3 All ER 790 Re Fulop Deceased (1987) 8 NSWLR 679 Graziani v Graziani (unreported, Sup Ct (NSW), Eq 2678 of 1985, 20 February 1987) James & Anor v Day [2004] VSC 290 Keets v Marks [2005] VSC 172 Re Leach (deceased) [1986] Ch 226 In re Lockwood [1960] Tas SR 46 McKenzie v Topp [2004] VSC 90 Singer v Berghouse (1994) 181 CLR 201 Re Trackson (Deceased) [1967] Qd R 124 Vigolo v Bostin (2005) 79 ALJR 731
COUNSEL:	A J H Morris QC and P A J Howard for the applicant D G Mullins SC for the respondent
SOLICITORS:	Martinez Quadrio for the applicant Schultz Toomey O’Brien for the respondent