McDermott v McDermott

Case [2023] QSC 163

SUPREME COURT OF QUEENSLAND

CITATION:

McDermott v McDermott & Anor [2023] QSC 163

PARTIES:

CHRISTOPHER MARTIN MCDERMOTT

(applicant)

v
SHONA ELIZABETH MCDERMOTT (Executor)

(first respondent)

and

HELEN MARY CHISHOLM BUCHANAN (Executor)

(second respondent)

FILE NO/S:

BS 7289 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 July 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 to 9 September 2022 and 23 September 2022. Further submissions received 23 December 2022.

JUDGE:

Brown J

ORDER:

1.   The proceedings are dismissed.

2.   The parties make any submissions as to costs, limited to three pages, within 28 days.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicant applies for an order that adequate provision be made for his maintenance and support than was made under his father’s Will and Codicil – where the applicant contends that the provision made for him by his father is insufficient to meet the expenses of maintaining the family home and allowing him to meet personal expenses which were formerly met by his father – whether the Court should make additional provision for the applicant than was made under his father’s Will and Codicil

Succession Act 1981 (Qld)

Albury & Anor v Sammut [2019] QSC 105
Anderson v Teboneras & Anor [1990] VR 47
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carrington v Wallace [2019] NSWSC 1301
Chan v Chan [2016] NSWCA 222
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Daley v Barton & Anor; Barton v Daley [2008] QSC 228
Goodman v Windeyer (1980) 144 CLR 490
Hartley v Hartley [2022] QCA 96
Higgins v Higgins (2005) 2 Qd R 502
Hills v Chalk [2008] QCA 159
In re Goodwin [1969] 1 Ch 283
O’Brien v McCormick [2005] NSWSC 619
Perpetual Trustees Queensland Limited v Mayne [1992] QCA 417
Perrin v Morgan [1943] AC 399
Pizzino v Pizzino [2010] QSC 35
Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9
Re Adamow (1989) 97 FLR 410
Re: Alleyn (deceased) [1965] SASR 22
Singer v Berghouse (1994) 181 CLR 201
Tanev v Tanevski [2017] NSWSC 1301
Vigolo v Bostin (2005) 221 CLR 191
White v Barron (1980) 144 CLR 431

COUNSEL:

The applicant appeared on his own behalf
RT Whiteford for the respondents

SOLICITORS:

The applicant appeared on his own behalf
Merthyr Law for the respondents

  1. William Terence Chisholm McDermott died on 6 October 2017. He was survived by his three children, Shona McDermott, Helen Buchanan and Christopher McDermott, the applicant. All three children benefited under William’s Will dated 17 July 2015 and Codicil dated 3 October 2017. The question is whether the Court should make additional provision for Christopher than was made by William under his Will and Codicil.

  2. By his originating application filed 6 July 2018, Christopher seeks by way of further provision under s 41 of the Succession Act

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Details
AGLC
McDermott v McDermott [2023] QSC 163
Case
[2023] QSC 163
Decision Date

CaseChat Overview and Summary

In the matter of McDermott v McDermott, the applicant, Christopher McDermott, sought an order from the Supreme Court of Queensland that adequate provision be made for his maintenance and support under his father's Will and Codicil. The applicant argued that the provision made for him was insufficient to meet the expenses of maintaining the family home and personal expenses, which were previously met by his father. The Court had to determine whether the applicant was left with inadequate and improper maintenance and whether additional provision should be made.

The central legal issue was whether the applicant had been left with adequate and proper maintenance under the Will. This required an assessment of the applicant's financial situation and needs, the state of the family home, and the expenses necessary for its maintenance. The Court had to weigh the applicant's claims about the necessary repairs and maintenance of the property against his father's provision and determine if these claims were reasonable and necessary. The Court also had to consider the applicant's personal expenses and whether they were adequately covered by the provision made in the Will.

The Court found that the applicant's evidence was not entirely reliable due to his tendency to exaggerate and hold conspiracy theories. The Court concluded that the applicant's claims about the necessary repairs and maintenance were based on a wish list rather than a list of reasonable necessities. The Court did not find that the applicant had been left with inadequate and improper maintenance, and therefore dismissed the application. The Court held that the applicant's claims for additional provision were not substantiated by reliable evidence and did not warrant an order for further provision.

The Court dismissed the application and ordered that the parties submit any submissions as to costs, limited to three pages, within 28 days.

Orders

Orders of the court

1. The proceedings are dismissed.

2. The parties make any submissions as to costs, limited to three pages, within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Christopher contends that adequate provision was not made under the Will in order for him to continue to reside at the Moggill Property and for his ongoing expenses on the basis that:(a)since William has died, the Moggill Property has been affected by white ants and there is evidence of white ant damage which requires significant repair;(b)the Moggill Property has to be mowed with greater regularity than the executors have been having it mowed and sufficient provision has not been made for its maintenance;(c)sufficient provision has not been made for Christopher’s expenses under the Will given that William paid for a number of household expenses, purchased grocery items which he shared and paid for car expenses; (d)he considers provision should be made for cleaning of the house and pool given that was done by him prior to William’s death and he has physical limitations preventing him from doing so;(e)he has identified a number of items which require repair or replacing and the house and household items are becoming aged and may need replacement in the future for which provision has not been made.Evidence as to matters in disputeThe Moggill Property The evidence took some three days. A number of factual issues were, however, not in dispute or were the subject of concessions. Christopher, Shona and Helen were all cross-examined. Ms Hajnal Ban, a friend of Christopher, gave evidence but was not cross-examined. Robert also gave evidence. The real dispute in terms of whether adequate provision has been made arises from Christopher’s assertion of what work needs to be done on the Moggill property or household items purchased and whether and to what is the extent of that work which needs to be done for adequate provision to be made for Christopher’s proper maintenance and support. Christopher gave evidence. While I found him to be a generally honest witness, though prone to exaggeration and conspiracy theories such that I did not consider that his evidence was reliable in all respects. Christopher’s evidence therefore had to be treated with considerable circumspection and was of limited weight. In particular, Christopher sees the present case in a vortex of what he considers should be the outcome of his application. Notwithstanding Christopher had lived at the Moggill Property for several years, most recently with his father, I did not find his evidence about the state of the property and what needed to be done to be reliably informing the Court as to the state of repair of the Moggill Property at the time of William’s death and what was needed to provide him with a house that was adequate for his proper maintenance and support. I found that Christopher formed his views of what is required to be done at the Moggill Property based on a wish list of matters which he would like done, rather than identifying matters which reasonably needed to be addressed in order to make provision for him. This is reflected by the quotes he obtained, for example to re-carpet the lounge, dining room, hall, and all six bedrooms of the house.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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