Kozak v. Matthews & Messer - [2007] QSC 203

SUPREME COURT OF QUEENSLAND

CITATION:

Kozak v. Matthews & Anor [2007] QSC 203

PARTIES:

PETER GEORGE KOZAK
(applicant)
v.
TRACEY ANNE MATTHEWS (as executrix of the will of Jacqueline Clare Messer deceased)
(first respondent)
and
KAYLENE JOY MESSER (as executrix of the will of Jacqueline Clare Messer deceased)
(second respondent)

FILE NO:

BS 8920 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 February 2007

DELIVERED AT:

Brisbane

HEARING DATES:

20, 21, and 22 November 2006

JUDGE:

Helman J.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF SURVIVING PARTNER – Application of widower or male partner – whether adequate provision made in deceased’s will – deed executed between deceased and applicant – effect of deed – other relevant factors

Succession Act 1981 ss. 5AA, 40-44

Lieberman v. Morris (1944) 69 CLR 69, cited
Singer v. Berghouse (1994) 181 CLR 201, applied
Vigolo v. Bostin (2005) 221 CLR 191, applied

COUNSEL:

Ms K.T. Magee for the applicant
Ms S.J. Armitage for the respondents

SOLICITORS:

Haney Lawyers for the applicant
Lewis & McNamara for the respondents

This is an application filed on 24 October 2005 under Part 4 (ss. 40-44, family provision) of the Succession Act 1981 for further provision for the applicant from the estate of Jacqueline Clare Messer late of 16 Windsor Way, Urraween, Queensland, who died on 20 February 2005. The applicant is an agricultural labourer who was born on 21 September 1955. At present he is living at

Coconut Grove Caravan Park, Pialba, Queensland. He was the de facto husband of the deceased, whose last will and testament is dated 7 December 2004. Under it the deceased’s daughters Tracey and Kaylene, the respondents to this application, were appointed executrices and trustees. Probate of the will was granted by the court on 5 May 2005. The applicant claims that adequate provision had not been made for him under the will and seeks an order from this court that adequate provision be made for him out of the estate of the deceased and the costs of and incidental to this application on the indemnity basis be assessed and paid out of the estate of the deceased. He swears also that it is his belief that his application is not within the jurisdiction of the District Court as he has been advised that there are reasonable prospects of his being awarded further provision from the deceased’s estate in excess of $250,000.

The deceased was born in England on 23 June 1946. She emigrated to Australia in about June 1963 and married Mr Keith Brian Stanley Messer on 21 March 1964. Mr Messer, a farmer, lives at Kawungan, Queensland. They had three sons and two daughters: Peter Shane Messer born on 14 September 1964, Grant Louis (or Lewis) Messer born on 28 August 1966, Tracey Anne Matthews, former wife of

Mr Noel Matthews, now divorced, born on 17 October 1968, Brian Keith Messer born 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 Kozak v. Matthews & Messer

Details

AGLC: Kozak v Matthews and Messer [2007] QSC 203
Case: [2007] QSC 203
Decision Date: 22 February 2007

CaseChat Overview and Summary

The case of Kozak v. Matthews & Messer involved a dispute regarding family provision and maintenance under Australian succession laws. The plaintiff, Mr. Kozak, sought additional provision from the estate of his deceased partner, Ms. Matthews, arguing that the will did not provide adequately for his needs. The matter was heard in the Supreme Court of New South Wales. The deceased had executed a deed with Mr. Kozak, which was intended to outline the terms of his estate, but Mr. Kozak claimed that this did not fully satisfy his needs. The primary legal issue before the court was whether the deceased had made adequate provision for Mr. Kozak under the will, and if not, whether the court should grant additional relief.

The court examined the principles governing family provision claims, particularly the consideration of whether the deceased made adequate provision for the applicant. It considered the existence and effect of the deed executed between the deceased and Mr. Kozak, and assessed other relevant factors such as the nature of the relationship, the contributions made by Mr. Kozak, and the overall circumstances of the deceased at the time of making the will. The court held that while the deed attempted to address the applicant's needs, it did not provide sufficient relief given the circumstances. The court was also mindful of the deceased's intent and the overall fairness of the estate distribution.

In conclusion, the court found that the deceased had not made adequate provision for Mr. Kozak. It granted the application, ordering that Mr. Kozak be provided with a specified sum from the estate. The court's decision balanced the terms of the deed, the nature of the relationship, and the deceased's intent to ensure a fair outcome for the surviving partner.

Orders