Hawkes (as executor) v Smith

Case [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…

Continue reading Hawkes (as executor) v Smith

Sign in free to access the full text

Details
AGLC
Hawkes (as executor) v Smith [2019] QDC 45
Case
[2019] QDC 45
Decision Date

CaseChat Overview and Summary

The case of Hawkes (as executor) v Smith involved an application under the Family Provision Act by a child seeking additional provision from the estate of her deceased mother. The mother had gifted her interest in the former matrimonial home to her husband prior to her death, but the house had been sold and the proceeds used to purchase a new home. The child argued that her father was left without adequate provision and was in a necessitous position regarding shelter and security in his aging years. The central legal issues were whether the widower was indeed left without adequate provision and if further provision should be made for the applicant from the estate.

The court examined the statutory criteria for making an order under the Family Provision Act, including whether the deceased had failed to make adequate financial provision for the applicant. The court considered the widower's financial situation, his age, and the necessity for shelter and security. It was noted that the husband had sold the former matrimonial home and used the proceeds for a new home, but his financial situation had deteriorated over time. The court determined that the widower was in a necessitous position and that the deceased had failed to make adequate provision for the applicant. Consequently, the court allowed the application and ordered that further provision should be made for the applicant from the estate.

The final orders of the court were that the application be allowed and that an order be made as per the draft presented to the court. This decision ensured that the child received additional provision from her mother’s estate, addressing her concerns about her father's lack of adequate provision and his necessitous position.

Orders

Orders of the court

1.Application allowed.

2.Order as per draft.

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.