Hawkes (as executor) v Smith

[2019] QDC 45

DISTRICT COURT OF QUEENSLAND

CITATION:

Hawkes (as executor) v Smith [2019] QDC 45

PARTIES:

EDRIC NORVAL HAWKES as executor of the Will of ESTHER EVELYN HAWKES-SMITH(deceased)
(applicant)

v

PAUL THOMAS SMITH

(first respondent)

and

NEREE GAYE LEEUWENDAL
(second respondent)

and

KERRY NIXON HAWKES

(third respondent)

and

GAVIN DAN HAWKES
(fourth respondent)

and

ALDO ARMSTRONG HAWKES
(fifth respondent)

FILE NO/S:

210/18

DIVISION:

Civil

PROCEEDING:

Application on the papers

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

22 March 2019

DELIVERED AT:

Cairns

HEARING DATE:

11 April 2019

JUDGE:

Morzone QC DCJ

ORDER:

1.Application allowed.    

2.Order as per draft.   

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – APPLICATION BY CHILD – where gift of interest in former matrimonial home to husband failed having been sold prior to death for new home - whether the widower is left without adequate provision - whether widower in a necessitous position as to shelter and security of tenure in aging years – whether further provision should be made for the applicant out of the estate.

Legislation
Uniform Civil Procedure Rules 1999 (Qld).

Succession Act 1981 (Qld), s 41.

Cases
Singer v Berghouse (1994) 181 CLR 201.

SOLICITORS:

Jacqui lee Long for the Applicant
Lili Bulyk for the First Respondent

Second, third, fourth and fifth respondents self-represented.

1. The applicant applies for final orders in terms of settlement pursuant to a Deed of Settlement dated 13 September 2018 evidencing the agreement of the parties and any interested beneficiaries.

1. These are my reasons for orders made on 22 March 2019.

BACKGROUND

1. The applicant is the executor of the deceased’s Will dated 9 August 2010.

1. The first respondent married the deceased on 28 April 2001 and was her husband until her death.  They did not have any children together.  The deceased had five children from a previous relationship, being the applicant (executor) and second, third, fourth and fifth respondents.

1. The deceased left a Will bequeathing the first respondent her one half interest in their former matrimonial home, which was sold before her death, as well as all motor vehicles owned by her at the date of her death. 

1. The parties join in seeking orders reflecting their settlement, to the effect that the first respondent receive the deceased’s half interest in the Pimpama property, and each party will to bear their own legal costs.

ADEQUATE PROVISION

1. By s 41 of the Succession Act 1981 (Qld) (“the Act”) a spouse of the deceased may make application to the court for adequate provision to be made from the estate for their proper maintenance and support.

1. The two stage process by which family provision applications are determined were enunciated in Singer v Berghouse (1994) 181 CLR 201.

1. First, the Court must determine a jurisdictional question of whether the Applicant has been left with adequate provision for his or her property maintenance and support.  Secondly, if so, the Court will then determine what provision ought to be made in the circumstances.

Is the Applicant left without adequate provision?

1. The first stage of the inquiry is…