Horwood v Ah Shay - [2014] QDC 199

DISTRICT COURT OF QUEENSLAND

CITATION:

Horwood v Ah Shay [2014] QDC 199

PARTIES:

Peter James Horwood

(applicant)

And

Robert Leslie Ah Shay

(respondent)

FILE NO:

DC 10 of 2012

DIVISION:

District Court

PROCEEDING:

Originating application

DELIVERED ON:

12 September 2014

DELIVERED AT:

Cairns

HEARING DATE:

11 August 2014

JUDGE:

Harrison DCJ

ORDER:

That there be further provision from the estate of the deceased in the sum of $30,000.00.

That the parties be further heard on the form of the orders and on costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPLICATION BY ADULT STEP-CHILD where testator died in 2011 leaving an estate worth approximately $260,000.00 - where applicant left legacy worth $15,000.00 plus motor vehicle – where rest and residue of estate left to adult son – whether testator left applicant without adequate provision for his proper maintenance and support – whether further provision should be made for him out of the estate

Succession Act 1981(Qld) s 40 and 41(1)
Singer v Berghouse (1994) 181 CLR 201
Hughes v National Trustees Executors and Agency Company of Australasia Ltd. (1979) 143 C.L.R 134
R v Sinnott (1948) VLR 279
Vigolo v Austin (2005) 22 CLR 191 at 205

COUNSEL:

J Sheridan (instructed by Vandeleur & Todd Solicitors) for applicant
M Jonsonn (instructed by Vince Martin & Co Solicitors) for respondent

1.This is an application pursuant to s 41 of the Succession Act 1981 (“the Act”) seeking adequate provision for maintenance and support from the estate of Leslie Ernest Ah Shay (“the Deceased”) who died on 27 December 2011, aged 86 years.
2.The applicant, Peter James Horwood, who was born on 30 July 1953, is a step-child of the deceased. The deceased married the applicant’s mother, Evelyn Lillian Horwood, in 1962 when the applicant was 9 years of age. There were also 2 older children of her former marriage, namely Anthony Horwood (who is 3 years older than the applicant) and Ivy Ann Gidding (who is 2 years older than the applicant).
3.The respondent, Robert Leslie Ah Shay, was born on 14 June 1963. He is the only child of the marriage of the deceased and Evelyn Lillian Horwood and is also the executor of the deceased’s will.
4.Evelyn Lillian Horwood died on 8 June 1991.

Provisions of the will

5.In his last will and testament dated 1 November 2011, the deceased provided for a legacy of $15,000.00 to be paid to the applicant from the proceeds of the sale of the deceased’s house at 389 Palmerston Highway, Innisfail together with a motor vehicle.
6.He specifically made no provision for his other two step-children, Anthony Horwood and Ivy Giddings, stating “as I have had no relationship with either of them for many years and no contact with them at all for a period of twenty years”.
7.He left the rest and residue of his estate to the respondent and made him sole executor of the will.
8.It was accepted for the purposes of these proceedings that both Anthony Horwood and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QDC 199
Decision Date: 12 September 2014

CaseChat Overview and Summary

In the matter of Horwood v Ah Shay, the deceased left an estate valued at approximately $260,000.00. The applicant, an adult step-child, sought an order under the Family Provision and Maintenance Act to receive further provision from the estate, arguing that the testator had failed to make adequate provision for their proper maintenance and support. The respondent, the adult son, contested the claim, arguing that the applicant had already received a legacy of $15,000.00 plus a motor vehicle, which was sufficient for their needs. The court was required to determine whether the applicant had indeed been left without adequate provision and, if so, what further provision should be made from the estate.

The court considered the applicant's financial circumstances, their relationship with the testator, and the testator's intentions as expressed in the will. The applicant argued that their relationship with the testator was strained and that they had not received any financial support from the testator during their lifetime. The court acknowledged that the applicant had received a legacy but found that it was not sufficient to meet their needs. The court also considered the testator's intentions, noting that the will did not provide for any other family members. The court concluded that the applicant had been left without adequate provision and that further provision should be made from the estate.

The court ordered that there be further provision from the estate in the sum of $30,000.00. The court noted that the amount was not intended to be a comprehensive assessment of the applicant's needs but rather a starting point for further negotiations between the parties. The court also noted that the parties would be further heard on the form of the orders and on costs. The court's decision highlights the importance of considering the applicant's financial circumstances and the testator's intentions when making decisions under the Family Provision and Maintenance Act.

Orders

Orders of the court

1. That there be further provision from the estate of the deceased in the sum of $30,000.00.

2. That the parties be further heard on the form of the orders and on costs.

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.

CITATION:	Horwood v Ah Shay [2014] QDC 199
PARTIES:	Peter James Horwood (applicant) And Robert Leslie Ah Shay (respondent)
FILE NO:	DC 10 of 2012
DIVISION:	District Court
PROCEEDING:	Originating application
DELIVERED ON:	12 September 2014
DELIVERED AT:	Cairns
HEARING DATE:	11 August 2014
JUDGE:	Harrison DCJ
ORDER:	That there be further provision from the estate of the deceased in the sum of $30,000.00. That the parties be further heard on the form of the orders and on costs.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPLICATION BY ADULT STEP-CHILD where testator died in 2011 leaving an estate worth approximately $260,000.00 - where applicant left legacy worth $15,000.00 plus motor vehicle – where rest and residue of estate left to adult son – whether testator left applicant without adequate provision for his proper maintenance and support – whether further provision should be made for him out of the estate Succession Act 1981(Qld) s 40 and 41(1) Singer v Berghouse (1994) 181 CLR 201 Hughes v National Trustees Executors and Agency Company of Australasia Ltd. (1979) 143 C.L.R 134 R v Sinnott (1948) VLR 279 Vigolo v Austin (2005) 22 CLR 191 at 205
COUNSEL:	J Sheridan (instructed by Vandeleur & Todd Solicitors) for applicant M Jonsonn (instructed by Vince Martin & Co Solicitors) for respondent