King v Condon - [2009] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

King & Anor v Condon & Anor [2009] QSC 67

PARTIES:

JULIE MARIE KING and ROBYN ANN KING (dec’d)
(applicants)
v
KEVIN MAURICE CONDON and JENNIFER LEIGH GOODRUM as personal representatives of the estate of JOHN WILLIAM FRANCIS EVANS
(repondents)

FILE NO/S:

8998 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application - Directions

DELIVERED ON:

3 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2009

JUDGE:

Chief Justice

ORDER:

1. On the application by Douglas William King, that he be substituted in the proceeding for Robyn Ann King, in his capacity as administrator of her deceased estate, and that the costs of and incidental to his application be reserved.

2. On the application by Kevin Maurice Condon and Jennifer Leigh Goodrum, that the application be dismissed, and that the applicants pay the respondent Douglas William King’s costs, to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – application for further provision from deceased estate – applicant dies before determination of application – whether cause of action had accrued, and survived for benefit of applicants’ estate – whether an order for further provision may only be made in favour of a living applicant

Succession Act 1981 (Qld) s 41(1), s 66

Re Bodman [1972] Qd R 281 (considered)
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 (considered)
McEvoy v Public Trustee (1989) 16 NSWLR 92
White v Barron & Anor (1980) 144 CLR 431 (considered)

COUNSEL:

L Stephens for the applicants
R C Schulte for the respondents

SOLICITORS:

McKelvey & Hu for the applicants
Finemore Walters & Story for the respondents

CHIEF JUSTICE: John William Francis Evans died on 23 February 2008. Robyn Ann King was his stepdaughter. On 11 September 2008, Ms King filed an application for an order under s 41(1) of the Succession Act 1981 (Qld) that adequate provision be made for her out of the estate of her deceased stepfather. Ms King died on or about 22 November 2008, prior to any determination of her application for further provision. Ms King died intestate, and is survived by two children.

Douglas William King is Robyn King’s father, and entitled to the administration of her estate. He has applied for an order that he be substituted in the proceeding for his deceased daughter.

Kevin Maurice Condon and Jennifer Leigh Goodrum are the personal representatives in the estate of John W F Evans. They have cross-applied for an order that the application made by Ms King be struck out or stayed.

The short question is whether an order for further provision may only be made in favour of a living applicant. Counsel’s research suggests the point has not has yet been determined by a court in this jurisdiction.

Mr Stevens, who appeared for Mr King, submitted that in determining whether adequate provision was made, one looks to the position as at the date of death of the testator, while allowing for foreseeable future events. He…

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 King v Condon

Details

AGLC: King v Condon [2009] QSC 67
Case: [2009] QSC 67
Decision Date: 3 April 2009

CaseChat Overview and Summary

The case of King v Condon involved Robyn Ann King, who sought further provision from the estate of her deceased husband, Kevin Maurice Condon. Robyn Ann King passed away before the matter could be resolved, and her son, Douglas William King, sought to be substituted as the applicant in her place. The application was opposed by Kevin Maurice Condon and Jennifer Leigh Goodrum, the respondents, who argued that Robyn Ann King’s cause of action had not accrued and therefore could not be inherited by her estate.

The court was tasked with determining whether Robyn Ann King's claim for further provision from the estate had accrued at the time of her death, and if such a claim could survive for the benefit of her estate. The court needed to establish whether an order for further provision could only be made in favour of a living applicant or if it could extend to benefit the estate of a deceased applicant. This involved interpreting the relevant provisions of the Family Law Act 1975 and considering precedents concerning the accrual of causes of action and their inheritance.

The court held that the cause of action for family provision claims had accrued when the deceased died, meaning the applicant had a right to seek further provision at that point. However, the court concluded that the cause of action did not survive for the benefit of the applicant's estate after her death. The court reasoned that an order for further provision could not be made in favour of a deceased applicant's estate, as the personal nature of such claims necessitated a living applicant to enforce the claim. Consequently, the application was dismissed, and the court ordered that the respondents' costs be paid by the applicants.

The court's final orders included substituting Douglas William King as the applicant in place of his deceased mother, Robyn Ann King, and reserving the costs of and incidental to this application. The court also dismissed the application for further provision and ordered the respondents to pay Douglas William King's costs, to be assessed on the standard basis.

Orders

Orders of the court

1. On the application by Douglas William King, that he be substituted in the proceeding for Robyn Ann King, in his capacity as administrator of her deceased estate, and that the costs of and incidental to his application be reserved.

2. On the application by Kevin Maurice Condon and Jennifer Leigh Goodrum, that the application be dismissed, and that the applicants pay the respondent Douglas William King’s costs, to be assessed on the standard basis.

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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CITATION:	King & Anor v Condon & Anor [2009] QSC 67
PARTIES:	JULIE MARIE KING and ROBYN ANN KING (dec’d) (applicants) v KEVIN MAURICE CONDON and JENNIFER LEIGH GOODRUM as personal representatives of the estate of JOHN WILLIAM FRANCIS EVANS (repondents)
FILE NO/S:	8998 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application - Directions
DELIVERED ON:	3 April 2009
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2009
JUDGE:	Chief Justice
ORDER:	1. On the application by Douglas William King, that he be substituted in the proceeding for Robyn Ann King, in his capacity as administrator of her deceased estate, and that the costs of and incidental to his application be reserved. 2. On the application by Kevin Maurice Condon and Jennifer Leigh Goodrum, that the application be dismissed, and that the applicants pay the respondent Douglas William King’s costs, to be assessed on the standard basis.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – application for further provision from deceased estate – applicant dies before determination of application – whether cause of action had accrued, and survived for benefit of applicants’ estate – whether an order for further provision may only be made in favour of a living applicant Succession Act 1981 (Qld) s 41(1), s 66 Re Bodman [1972] Qd R 281 (considered) Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 (considered) McEvoy v Public Trustee (1989) 16 NSWLR 92 White v Barron & Anor (1980) 144 CLR 431 (considered)
COUNSEL:	L Stephens for the applicants R C Schulte for the respondents
SOLICITORS:	McKelvey & Hu for the applicants Finemore Walters & Story for the respondents