Manly v The Public Trustee of Qld

SUPREME COURT OF QUEENSLAND

CITATION: Manly v The Public Trustee of Qld & Anor [2008] QCA 198
PARTIES: LOUELLA ARANAS MANLY
(applicant/appellant)
v
THE PUBLIC TRUSTEE OF QUEENSLAND
(first respondent)
RONALD JAMES MANLY, GARY JOHN MANLY and
DENNIS MANLY
(second respondents)
FILE NO/S: Appeal No 449 of 2008
SC No 344 of 2006
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 25 July 2008
DELIVERED AT: Brisbane
HEARING DATE: 6 June 2008
JUDGES: McMurdo P, Mackenzie AJA and Daubney J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDER: 1. Appeal dismissed

2. The appellant to pay the respondents’ costs of and incidental to the appeal
CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – claims by spouse – where the appellant’s late husband made a will dividing his residuary estate evenly between the appellant and his three sons – where the appellant applied under s 41 of the Succession Act 1981 (Qld), contending that the deceased did not make adequate provision for her maintenance in his will – where the trial judge refused her application – where the appellant challenged the weight ascribed by the trial judge to various factors including the relationship between the appellant and the deceased, the relationship between the deceased and his sons, the care provided by the appellant to the deceased and an informal prenuptial agreement between the appellant and the deceased – whether the trial judge erred in determining that adequate provision was made for the maintenance and support of the appellant
Succession Act 1981 (Qld), s 41

affirmed
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40,
applied
Manly v The Public Trustee of Queensland [2007] QSC 388, considered
COUNSEL: R D Peterson for the appellant
A P J Collins for the first respondent
R T Whiteford for the second respondents
SOLICITORS: Collas Moro Ross for the appellant
Official Solicitor to the Public Trustee of Queensland for the
first respondent
McCowans Solicitors for the second respondents

McMURDO P: The appeal should be dismissed with costs for the reasons given by Daubney J.
MACKENZIE AJA: I agree with the reasons for judgment of Daubney J and with the orders he proposes.
DAUBNEY J: Walter James Manly (‘the deceased’) died on 3 June 2005. He was 83 years old. He was survived by three sons from his first marriage and the appellant, whom he had married on 8 December 2001. Two weeks before he died, the deceased made a Will by which he:

(a) made a number of specific bequests of chattels (a motor vehicle, some furniture, tools, fishing gear and the like) to his sons, and
(b) left his residuary estate to be divided equally between his three sons and the appellant.

The appellant made application pursuant to s 41 of the Succession Act

CaseChat Overview and Summary

In the matter of Manly v The Public Trustee of Queensland, the appellant, Manly, appealed against the decision of the trial judge who dismissed her application under s 41 of the Succession Act 1981 (Qld). The appellant claimed that the deceased, her late husband, had failed to make sufficient provision for her maintenance in his will. The deceased's will divided his residuary estate equally between the appellant and his three sons. The trial judge found that adequate provision had been made for the appellant's maintenance and dismissed her application.

The central legal issue was whether the trial judge erred in determining that adequate provision was made for the maintenance and support of the appellant. The appellant challenged the weight ascribed to various factors by the trial judge, including the nature of the relationship between herself and the deceased, the relationship between the deceased and his sons, the care provided by the appellant to the deceased, and an informal prenuptial agreement between the appellant and the deceased. The appellant argued that these factors should have led to a finding that the deceased had not made sufficient provision for her maintenance.

The court considered the evidence and arguments presented by both parties. It found that the trial judge had correctly assessed the weight of the evidence and had not erred in concluding that adequate provision had been made for the appellant's maintenance. The court held that the trial judge's assessment of the various factors, including the relationship between the parties and the prenuptial agreement, was appropriate and that these factors did not support a finding that the deceased had failed to make adequate provision for the appellant's maintenance.

Accordingly, the appeal was dismissed. The trial judge's determination that the deceased had made adequate provision for the appellant's maintenance was upheld, and the appellant's application under s 41 of the Succession Act 1981 (Qld) was denied.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established