Hartley v Hartley

[2021] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Hartley v Hartley [2021] QDC 323

PARTIES:

CRAIG ANDREW HARTLEY (UNDER PART 4 OF THE SUCCESSION ACT)

(Applicant)

v

SHANE MICHAEL HARTLEY (AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED))

(Respondent)

FILE NO:

27 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Cairns

DELIVERED ON:

14 December 2021

DELIVERED AT:

Cairns

HEARING DATE:

12 & 13 May 2021

JUDGE:

Morzone QC DCJ

ORDER:

1.   I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION - ELIGIBLE APPLICANTS – CHILD – adult son – whether applicant adult son left without adequate provision – consideration of nature of the relationship between the deceased and the applicant and whether disentitling conduct – whether provision ought be made.

LEGISLATION:

Succession Act 1981 (Qld) ss 40, 41(1) & 41(2)(c)

CASES:

Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd (1938) AC 463
Freeman & Ors v Jacques [2006] 1 Qd R 318
Hills v Chalk & Ors [2008] QCA 159
Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 13
Perpetual Trustee Queensland Ltd v Mayne [1992] QCA 417
Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9
Re Hallahan (1918) 18 SR (NSW)
Re Hatte [1943] St R Qd 1
Re Sinnott [1948] VLR 279 at 280
Singer v Berghouse (1994) 181 CLR 201
Stewart v Stewart [2015] QSC 238
White v Barron (1980) 144 CLR 431

COUNSEL:

T Naylor for the Applicant
D Topp for the Respondent

SOLICITORS:

Maurice Blackburn Lawyers for the Applicant

Cairns Beaches Law & Conveyancing for the Respondent

Introduction

1. The 49 year old applicant who was expressly excluded from his deceased mother’s will now applies for adequate provision for his proper maintenance and support from her estate.

2. The deceased died over 5 years ago on 4 June 2016.  She was survived by her four sons – Shane aged 52 who is also the executor, Peter who is nearly 51, the 49 year old applicant, and Damian aged 45.  In her last will made on 2 March 2015, the deceased bequeathed three house properties to the applicant’s brothers and a car to Shane, with the residue to be shared between the applicant’s brothers.   The will makes no provision for the applicant, and the deceased expressly explains his exclusion in a statutory declaration

3. The applicant endures in hopeless circumstances receiving the disability support pension because of a sports injury suffered when he was about 20 years old, he lives in community housing and has no assets.  The applicant argues that these circumstances are a product of his disruptive and traumatic upbringing, exposure to drugs and alcohol from an early age and drug abuse since about 13 years old.  The applicant has suffered from drug and alcohol addiction, served imprisonment for drug related offending, had stolen from his mother, needed significant financial and…