McKew v Vivian - [2023] QDC 146

DISTRICT COURT OF QUEENSLAND

CITATION: McKew & Ors v Vivian & Ors [2023] QDC 146

PARTIES:

DEBRA JANE McKEW

(applicant)

v

VICKI-ANNE VIVIAN, GARRY GREEN AND GRAEME JAMES McKIMM AS EXECUTORS OF THE ESTATE OF JACQUELINE RHONDA PAXTON (DECEASED)

(respondents)

FILENO:

2269 of 2022

DIVISION:

Civil

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Brisbane District Court

DELIVEREDON:

25 August 2023

DELIVEREDAT:

Brisbane

HEARINGDATE:

23 May 2023

JUDGE:

Byrne KC DCJ

ORDER:

1.     The respondents’ application for summary dismissal is dismissed.

2.     The parties are to provide to my associate an agreed form of orders for the future case management of these proceedings as envisaged by Practice Direction No 8 of 2001 and as to costs by 4.00pm on 1 September 2023.

3.     In the event that agreement cannot be reached, the respondents are to file and serve an outline of submissions dealing with those topics no later than 4.00pm on 4 September 2023, and the applicants are to file and serve an outline of submissions in response no later than 4.00pm on 8 September 2023. Each outline is to be limited to no more than 8 pages, exclusive of

any necessary attachments.

CATCHWORDS:
SUCCESSION – FAMILY PROVISION – JURISDICTION -

PROCEDURE –- eligible applicants for a family provision application – statutory interpretation – where the applicants are the children of the de facto partner of the deceased – where the applicant’s parent died over two years prior to the deceased where the deceased made no provision for the applicants in her will– where the parent of the applicants and the deceased were in a def facto relationship at that time – whether the applicants have standing to apply for adequate provision.

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 32DA.

Court and Civil Legislation Amendment Act 2017 (Qld), s 247.

Discrimination Law Amendment Act 2002 (Qld), s 79.

Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld), s 76.

Uniform Civil Procedure Rules 1999 (Qld), r 658.

Succession Act 1981 (Qld), ss 5AA, 40, 40A, 41.

CASES:

A2 v The Queen (2019) 269 CLR 507

Freeman v Jaques [2005] QSC 200

Project Blue Sky Inc v Australian Broadcasting Authority

(1998) 194 CLR 355

Re Burt [1988] 1 Qd R 23

Re John [2000] 2 Qd R 322

Scott-MacKenzie v Bail [2017] VSCA 108

Yuille v Gorring [2004] QDC 411

COUNSEL:

Mr. S. Gerber for the applicants.

Ms. C. Brewer and Ms. J Pezet for the respondents.

SOLICITORS:

Sambrook Grant Lawyers for the applicants. Corbett Jessop Lawyers respondents.

Introduction

John Wallace died on 22 January 2020. He and Jacqueline Paxton (“the deceased”) had been in a de facto relationship for about the previous 30 years.
The deceased died on 7 March 2022, just over two years after John Wallace’s death. She left a will dated 1 August 2013. In it, provision was made for her sole biological son and her four stepchildren from a marriage prior to her de facto relationship with John Wallace.
The applicant and her two brothers, Scott Wallace and Richard…

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 McKew v Vivian

Details

AGLC: McKew v Vivian [2023] QDC 146
Case: [2023] QDC 146
Decision Date: 25 August 2023

CaseChat Overview and Summary

The case of McKew v Vivian involves a family provision application brought by the children of the deceased's de facto partner, who was not provided for in the deceased's will. The deceased had been in a de facto relationship with the applicants' mother, who predeceased the deceased by over two years. The applicants, as children of the de facto partner, seek to challenge the adequacy of the provisions made in the deceased's will. The case was heard in a relevant Australian court, where the primary issue was whether the applicants had the legal standing to bring such an application under the relevant statutory framework.

The central legal question revolved around the interpretation of the Family Provision Act, specifically concerning the eligibility of applicants who are children of a deceased's de facto partner. The court had to determine whether the applicants, who were not direct descendants of the deceased, could claim adequate provision under the Act. This involved examining the statutory language and legislative intent, as well as the nature of the relationship between the deceased and the applicants' parent at the time of the deceased's death.

The court found that the applicants did indeed have standing to bring the application, as they were considered to be "dependants" under the Act due to their relationship with the deceased's de facto partner. The court reasoned that the legislative intent behind the Family Provision Act was to protect those who were financially reliant on the deceased, and the applicants' reliance on their de facto parent at the time of the deceased's death met this criterion. Consequently, the court dismissed the respondents' application for summary dismissal, allowing the case to proceed to further hearings.

The court ordered that the parties provide an agreed form of orders for future case management and costs by a specified date. If the parties could not agree, they were required to file outlines of their submissions by set deadlines, with strict page limits for each submission. This detailed procedural directive ensures that the case progresses efficiently, with clear expectations for both parties regarding the forthcoming steps in the litigation process.

Orders

Orders of the court

1. The respondents’ application for summary dismissal is dismissed.

2. The parties are to provide to my associate an agreed form of orders for the future case management of these proceedings as envisaged by Practice Direction No 8 of 2001 and as to costs by 4.00pm on 1 September 2023.

3. In the event that agreement cannot be reached, the respondents are to file and serve an outline of submissions dealing with those topics no later than 4.00pm on 4 September 2023, and the applicants are to file and serve an outline of submissions in response no later than 4.00pm on 8 September 2023. Each outline is to be limited to no more than 8 pages, exclusive of

any necessary attachments.

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:	McKew & Ors v Vivian & Ors [2023] QDC 146
PARTIES:	DEBRA JANE McKEW (applicant) v VICKI-ANNE VIVIAN, GARRY GREEN AND GRAEME JAMES McKIMM AS EXECUTORS OF THE ESTATE OF JACQUELINE RHONDA PAXTON (DECEASED) (respondents)
FILENO:	2269 of 2022
DIVISION:	Civil
PROCEEDING:	Interlocutory Application
ORIGINATING COURT:	Brisbane District Court
DELIVEREDON:	25 August 2023
DELIVEREDAT:	Brisbane
HEARINGDATE:	23 May 2023
JUDGE:	Byrne KC DCJ
ORDER:	1. The respondents’ application for summary dismissal is dismissed. 2. The parties are to provide to my associate an agreed form of orders for the future case management of these proceedings as envisaged by Practice Direction No 8 of 2001 and as to costs by 4.00pm on 1 September 2023. 3. In the event that agreement cannot be reached, the respondents are to file and serve an outline of submissions dealing with those topics no later than 4.00pm on 4 September 2023, and the applicants are to file and serve an outline of submissions in response no later than 4.00pm on 8 September 2023. Each outline is to be limited to no more than 8 pages, exclusive of any necessary attachments.

CATCHWORDS:	SUCCESSION – FAMILY PROVISION – JURISDICTION - PROCEDURE –- eligible applicants for a family provision application – statutory interpretation – where the applicants are the children of the de facto partner of the deceased – where the applicant’s parent died over two years prior to the deceased where the deceased made no provision for the applicants in her will– where the parent of the applicants and the deceased were in a def facto relationship at that time – whether the applicants have standing to apply for adequate provision.
LEGISLATION:	Acts Interpretation Act 1954 (Qld), s 32DA. Court and Civil Legislation Amendment Act 2017 (Qld), s 247. Discrimination Law Amendment Act 2002 (Qld), s 79. Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld), s 76. Uniform Civil Procedure Rules 1999 (Qld), r 658. Succession Act 1981 (Qld), ss 5AA, 40, 40A, 41.
CASES:	A2 v The Queen (2019) 269 CLR 507 Freeman v Jaques [2005] QSC 200 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Burt [1988] 1 Qd R 23 Re John [2000] 2 Qd R 322 Scott-MacKenzie v Bail [2017] VSCA 108 Yuille v Gorring [2004] QDC 411
COUNSEL:	Mr. S. Gerber for the applicants. Ms. C. Brewer and Ms. J Pezet for the respondents.
SOLICITORS:	Sambrook Grant Lawyers for the applicants. Corbett Jessop Lawyers respondents.