Houston v Butler - [2007] QSC 284

SUPREME COURT OF QUEENSLAND

CITATION: Houston v Butler [2007] QSC 284

PARTIES:   CHRISTINE AGNES HOUSTON
(Applicant)
v
CRAIG WELLS BUTLER and BRIAN WELLS BUTLER as Executors of the Will of FRANK           WILLIAM WELLS BUTLER (deceased)
(Respondents)

FILE NO: S493/05 (Rockhampton)
DIVISION: Trial Division

DELIVERED ON: 9 October 2007

DELIVERED AT:          Rockhampton
HEARING DATES:       17, 18 & 19 September 2007
JUDGE:   Dutney J

ORDERS:Further provision be made for the proper maintenance and support of the Applicant out of the estate of Frank William Wells Butler by reading and construing the last will of the testator dated 25 July 2000 as if it provided for a legacy to the applicant in the amount of $450,000 payable in priority to all other gifts, devises and bequests; such legacy being in substitution for any other provision made for the applicant in the will.

CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – where applicant and deceased formed relationship late in life – where applicant and deceased owned and maintained separate properties - whether applicant and testator were defacto pursuant to section 5AA Succession Act – whether applicant entitled to apply for provision for her proper maintenance and support out of testator’s estate - what provision should be made for applicant from testator’s estate.
CASES:Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, applied.
Powell v Monteath [2006] QSC 24, applied.
Singer v. Berghouse (1994) 181 CLR 201, applied.

LEGISLATION: Acts Interpretation Act 1954 (Qld) s.32DA.
Succession Act 1981 ss 5(1), 41.

COUNSEL:Mr D Morgan for the Applicant

Mr A Mellick for Respondents

SOLICITORS: Blair Anderson Solicitor for the Applicant
Rees R & Sydney Jones for the Respondent

The Application

This is an application by the applicant pursuant to s 41 (1) of the Succession Act 1981 (Qld) (“the Succession Act”). The applicant claims that adequate provision for her proper maintenance and support was not made for her under the testator’s will.

The applicant makes this application on the basis that she was the testator’s de facto spouse from 1987 until the date of his death in 2005.

The respondents acknowledge the existence of some relationship between the testator and the applicant but deny that the relationship existed for as long as the applicant claims or that the relationship was one which would make the applicant the de facto spouse of the testator in the eyes of the law.

Background

Frank William Butler (“the testator”) died on 23 January 2005 at the age of 78.

The testator was survived by 4 children; 2 sons, Craig Butler aged 49 and Brian Butler aged 46; and 2 daughters, Kerryn Philips aged 41 and Lori-Ann Butler aged 40.

The testator left an estate valued at $1,796,663.80 at the time of death and $1,730,861.50 at trial after deducting approximately $96,000 for the executors costs of this litigation.

The bulk of the estate is comprised of 5 parcels of land, Lot 401 on CP DT 4026 (“Lot 401”), Lot 44 on…

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.

Continue reading Houston v Butler

Details

AGLC: Houston v Butler [2007] QSC 284
Case: [2007] QSC 284
Decision Date: 9 October 2007

CaseChat Overview and Summary

This case involves an application by Christine Agnes Houston, the Applicant, to the Supreme Court of Queensland, seeking further provision for her maintenance and support out of the estate of Frank William Wells Butler, the deceased. The Respondents are Craig Wells Butler and Brian Wells Butler, the Executors of the Will of Frank William Wells Butler. The Applicant claims that adequate provision for her maintenance and support was not made for her under the deceased’s will, on the basis that she was the deceased’s de facto spouse from 1987 until his death in 2005.

The first issue in dispute is whether the Applicant was the deceased’s spouse for the purposes of the Succession Act. If the Applicant is successful in establishing her status as the deceased’s de facto spouse, the Respondents concede that the Applicant was inadequately provided for under the deceased’s will. The second issue, therefore, is what provision should have been made for the Applicant from the deceased’s estate.

After considering the evidence, the Court found that the relationship between the Applicant and the deceased commenced somewhere between 1987 and 1990 and that the Applicant can be properly regarded as the deceased’s spouse for the purposes of the Succession Act. The Court also found that the provision made for the Applicant under the deceased’s will was inadequate. As such, the Court ordered that the deceased’s will be read and construed as if it provided for a legacy to the Applicant in the amount of $450,000 payable in priority to all other gifts, devises or bequests. This legacy is in substitution for any other provision made for the Applicant in the will.

In conclusion, the Court found in favour of the Applicant and ordered that further provision be made for her maintenance and support out of the deceased’s estate. The Court determined that a legacy of $450,000 would have been adequate to provide for the proper maintenance and support of the Applicant, taking into account her history of independence throughout the relationship, her current financial situation, and the testator's wish to particularly benefit his sons.

Orders