Higgins v Higgins

Case [2005] QSC 110


SUPREME COURT OF QUEENSLAND

CITATION:

Higgins v Higgins & Anor [2005] QSC 110

PARTIES:

MALCOLM GEORGE ANDREW HIGGINS
(applicant)
v
DOUGLAS GRAHAM HIGGINS
and BRUCE FRASER GRAHAM (as executors of the Will of Olga Larraine Higgins, deceased)
(respondent)

FILE NO/S:

BS 9874 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2005

JUDGE:

White J

ORDER:

1.   Grant the application

2.   Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act 1981

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – strike-out application – whether r 171 of the Uniform Civil Procedure Rules 1999 (Qld) applies to applications

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – claim by adult son – prima facie case – where application based upon lack of recognition of work on partnership farm  

Statutory Instruments Act 1992 (Qld), s 12
Succession Act 1981 (Qld), s 40, s 41
Supreme Court Act 1991 (Qld), s 118D, s 118E, s 134
Uniform Civil Procedure Rules 1999 (Qld), r 8, r 171, r 658

Practice Direction No. 8 of 2001 – Family Provision Applications

In re Allen; Allen v Manchester (1921) 41 NZLR 218, followed
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied
Goodman v Windeyer (1980) 144 CLR 490, cited
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, cited
Re Marstella [1989] 1 Qd R 638, distinguished
Singer v Berghouse (1994) 181 CLR 201, followed
In re Sinnott [1948] VLR 279, cited
Re State Public Services Federation;ex parte Attorney-General (WA) (1993) 178 CLR 249, cited

Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, followed

COUNSEL:

Mr D G Mullins SC for the applicant (respondent to originating application)
Mr J O’Neill for the respondent (applicant on the originating application)

SOLICITORS:

McCullough Robertson for the applicant (respondent to originating application)
O’Reilly Lillicrap for the respondent (applicant on the originating application)

  1. Malcolm George Andrew Higgins (“Malcolm”), one of two adult sons of Olga Lorraine Higgins (“the testatrix”), filed an originating application on 12 November 2004 for orders that adequate provision be made for his proper maintenance and support out of the estate of his late mother pursuant to Part IV of the Succession Act 1981.

  1. His brother, Douglas Graham Higgins (“Douglas”) one of the two executors of the estate (the other is Bruce Fraser Graham, a solicitor) by application filed 23 March 2005 seeks to have the originating application summarily dismissed on the ground that it discloses no reasonable cause of action.

  1. The testatrix died on 11 May 2004.  Probate issued on 21…

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Details
AGLC
Higgins v Higgins [2005] QSC 110
Case
[2005] QSC 110
Decision Date

CaseChat Overview and Summary

The case of Higgins v Higgins involved a dispute between Malcolm George Andrew Higgins, an adult son, and his father, who had recently passed away. Malcolm applied for orders under Part IV of the Succession Act 1981, seeking to be provided for by his father's estate. The father had made a will that did not include provisions for Malcolm. The matter was heard in the Supreme Court of Queensland.

The legal issues that arose in this case involved whether the court had jurisdiction to strike out Malcolm's application under r 171 of the Uniform Civil Procedure Rules 1999 (Qld). The court had to consider if Malcolm had made out a prima facie case for relief under the Succession Act 1981. Additionally, the court had to determine if Malcolm's work on the partnership farm should be considered when making provision for him.

The Supreme Court of Queensland held that Malcolm had made out a prima facie case for relief under the Succession Act 1981. The court found that Malcolm's work on the partnership farm should be recognised when making provision for him. The court also held that r 171 of the Uniform Civil Procedure Rules 1999 (Qld) did not apply to the application. Therefore, the application to strike out was granted, and the originating application was dismissed.

The court ordered that the application be granted and that the originating application be dismissed. The court found that Malcolm had not been provided for sufficiently by his father's estate and that his work on the partnership farm should be recognised when making provision for him. The court's decision was based on the evidence presented and the legal principles that applied to the case.

Orders

Orders of the court

1. Grant the application

2. Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act 1981

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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