Kerridge v Overlack & Stone - [2018] QDC 126

DISTRICT COURT OF QUEENSLAND

CITATION:

Kerridge v Overlack & Stone [2018] QDC 126

PARTIES:

VALERIE JUNE KERRIDGE

(applicant)

and

LINDA BERYL OVERLACK and SANDRA VELMA STONE (as co-executors of the Will of MAXWELL THOMAS ARTHUR DAVIDSON deceased)

(respondents)

FILE NO/S:

28/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

29 June 2018

DELIVERED AT:

Cairns

HEARING DATE:

On the papers

JUDGE:

Fantin DCJ

ORDER:

1. Application granted.

2. Orders made in terms of the draft provided.

CATCHWORDS:

WILLS – SUCCESSION – FAMILY PROVISION – where the applicant is the 69 year old adult daughter of the deceased – where the deceased gave the applicant a life interest in a property but otherwise made no substantive provision for her – where the court was satisfied that the applicant was an eligible person and a person in need of support – where the parties’ agreement allowed for the applicant’s proper maintenance and support – where the court made orders on the basis of the parties’ agreement.

Legislation
Succession Act 1981 (Qld) s 41

Cases

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286
Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

SOLICITORS:

Jeneve Frizzo Estate Law for the Applicant
Williams Graham Carman Lawyers for the Respondents

Valerie June Kerridge (the applicant) has applied for further provision to be made for her proper maintenance and support from the estate of Maxwell Thomas Arthur Davidson (the deceased) pursuant to section 41 of the Succession Act 1981 (Qld) (the Act).

The applicant is one of three adult children of the deceased who died on 19 May 2017. The respondents are the deceased’s other adult children. All three of the deceased’s adult children are executors of his will which was dated 18 April 2017. Under that will, the deceased gave the applicant a life interest in a freehold property at Brinsmead and provided that the freehold of the property would vest in the applicant’s daughters on termination of the life interest. The deceased left other freehold property to the respondent, Sandra Stone; a motor vehicle, shares, jewellery, antique furniture and collectables and cash to the respondent, Linda Overlack; a truck, tractor and other motor vehicles and tools to his son-in-law; and the rest and residue of his estate to be divided between his three adult children.

The deceased’s estate is valued at over $1.9 million. The value of the house at Brinsmead in which the applicant was given a life interest, is $450,000.00. The total value of the other freehold is over $670,000.00. The value of the motor vehicle, jewellery, antique furniture, collectables and cash is over $500,000.00.

On 16 February 2018 an applicant filed the originating application pursuant to section 41 of the Act seeking adequate provision to be made for her proper maintenance and support from the deceased’s estate.

No other eligible applicants…

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 Kerridge v Overlack & Stone

Details

AGLC: Kerridge v Overlack and Stone [2018] QDC 126
Case: [2018] QDC 126
Decision Date: 29 June 2018

CaseChat Overview and Summary

Kerridge v Overlack & Stone involved the applicant, a 69-year-old woman, who sought to challenge the will of her deceased father under the Family Provision Act. The deceased had left a life interest in a property to the applicant but made no other substantive provision for her. The court was required to determine whether the applicant was eligible for a claim under the Act and whether she was in need of support. The legal issues also included whether the terms of a prior agreement between the parties could be relied upon in the court’s determination.

The court found that the applicant was indeed an eligible person under the Act, being a child of the deceased. Additionally, the court was satisfied that the applicant was in need of support, given that the deceased had made minimal provision for her maintenance and support. The court noted the terms of an earlier agreement between the parties, which provided for the applicant’s proper maintenance and support. Based on this agreement, the court concluded that the deceased had made adequate provision for the applicant’s support. However, the court was satisfied that the applicant’s needs were not fully met by the provisions of the will alone. Consequently, the court ordered that the application be granted and made orders in accordance with the terms of a draft agreement provided by the parties.

Orders

Orders of the court

1. Application granted.

2. Orders made in terms of the draft provided.

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:	Kerridge v Overlack & Stone [2018] QDC 126
PARTIES:	VALERIE JUNE KERRIDGE (applicant) and LINDA BERYL OVERLACK and SANDRA VELMA STONE (as co-executors of the Will of MAXWELL THOMAS ARTHUR DAVIDSON deceased) (respondents)
FILE NO/S:	28/2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	29 June 2018
DELIVERED AT:	Cairns
HEARING DATE:	On the papers
JUDGE:	Fantin DCJ
ORDER:	1. Application granted. 2. Orders made in terms of the draft provided.
CATCHWORDS:	WILLS – SUCCESSION – FAMILY PROVISION – where the applicant is the 69 year old adult daughter of the deceased – where the deceased gave the applicant a life interest in a property but otherwise made no substantive provision for her – where the court was satisfied that the applicant was an eligible person and a person in need of support – where the parties’ agreement allowed for the applicant’s proper maintenance and support – where the court made orders on the basis of the parties’ agreement. Legislation Succession Act 1981 (Qld) s 41 Cases Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
SOLICITORS:	Jeneve Frizzo Estate Law for the Applicant Williams Graham Carman Lawyers for the Respondents