Hiscock v Hiscock

[2004] QDC 407

DISTRICT COURT OF QUEENSLAND

CITATION:

Hiscock  v Hiscock [2004] QDC 407

PARTIES:

WARREN WILLIAM HISCOCK

Applicant

and

DARRELL JOHN HISCOCK
AS EXECUTOR OF THE ESTATE OF
LOUISA ANN HISCOCK

Respondent

FILE NO:

164/04

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

15 October 2004

DELIVERED AT:

Southport

HEARING DATE:

29 September 2004

JUDGE:

Newton DCJ

ORDER:

Order that in lieu of the benefits given to him by the will of the late Louisa Ann Hiscock, the applicant Warren William Hiscock receive a legacy in the sum of $150,000-00.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – CLAIM BY ADULT SON – FINANCIAL AND MATERIAL CIRCUMSTANCES OF APPLICANT - COMPETING CLAIMS OF BENEFICIARY – whether will of testatrix provided for proper level of maintenance and support to applicant    

Succession Act  1981

Cases considered:
Bird v Bird [2002] QCS 202
Bladwell v Davis; Davis v Bladwell [2003] NSWSC 882
Dunn v Dunn (1959) 100 CLR 361
Singer v Berghouse (1994) 181 CLR 201

COUNSEL:

Mr C Wilson – applicant
Mr D J Morgan – respondent

SOLICITORS:

Quinn & Scattini – applicant
Price & Roobottom – respondent

1. This is an application under s 41 of the Succession Act 1981 for an order that adequate provision be made for the proper maintenance and support of the applicant out of the estate of the applicant’s deceased mother (“the testatrix”).

1. The testatrix died on 24 September 1998.  She was predeceased by her husband but survived by three sons and a daughter.  She left a will dated 18 July 1996 in respect of which probate was granted on 24 November 1998 to her son Darrell Hiscock as executor.  By originating summonses filed in the Brisbane Registry of the Supreme Court, the testatrix’s two other sons Terrence and Warren (known as “Bill”) and her daughter Pamela applied for provision from the will.  All the applications except for that of Bill resolved prior to trial.  His application was remitted to this Court and comprises the matter now before me.

1. The applicant is presently 60 years old and has four children.  One is presently completing high school and intends to study at the University of Newcastle, requiring him to live away from home with the support of the applicant.  The applicant’s second youngest child is said to be a particularly independent and resourceful girl who was able to support herself effectively through university by taking part-time work.  The applicant states that he has been unable to give her any real financial support.  The applicant’s son Billy is aged 32 and is said to be struggling financially at present and at times is provided with accommodation and minimal intermittent financial support by the applicant.

1. Under the terms of the will of the testatrix the applicant is to receive the sum of $25,000-00 (clause 3(b)) and one half of the balance of the proceeds of the sale of the testatrix’s residence at Earle Haven in Nerang, after $5,000-00 has been paid to the respondent, Terrence Robert Hiscock from such sale, (clause 5(b)(ii)).  This…