Menzies v Menzies - [2019] QDC 243

DISTRICT COURT OF QUEENSLAND

CITATION:

Menzies & Anor v Menzies [2019] QDC 243

PARTIES:

ROBYN LEA MENZIES
(first applicant)

and

GLENN DONALD MENZIES
(second applicant)

v

SHELLY GAYE MENZIES as Executor of the Estate of the Late Donald Menzies
(respondent)

FILE NO/S:

BD4064/16

DIVISION:

Civil

PROCEEDING:

Family provision application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 and 8 February 2019

JUDGE:

Sheridan DCJ

ORDER:

1.   Pursuant to s 41 of the Succession Act 1981 (Qld) further and better provision be made for the proper maintenance and support of the first applicant, Robyn Lea Menzies, and the second applicant, Glenn Donald Menzies, from the estate of Donald Menzies (deceased) by reading and construing the will of the deceased dated 17 December 2015 (the Will) so as to amend clause 3 of the Will:

“(a)      to delete the words “for the said SHELLY GAYE MENZIES for her own sole use and benefit absolutely.”; and

(b)        to insert in lieu thereof the words:

(i)         60 per cent to my daughter, Shelly Gaye Menzies;

(ii)        20 per cent to my daughter, Robyn Lea Menzies; and

(iii)       20 per cent to my son, Glenn Donald Menzies.”

2.   The applicants file any submissions as to costs by 4.00pm, 9 December 2019.

3.   The respondent file any submissions as to costs by 4.00pm, 13 December 2019.

4.   The applicants file any submissions in reply by 4.00pm, 16 December 2019.

5.   The parties have liberty to apply.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants applied pursuant to s 41 of the Succession Act 1981 (Qld) for proper maintenance and support out of the deceased’s estate – where respondent is sole beneficiary of estate – where respondent opposes applications – whether the applicants have been left without adequate provision – whether court ought to make order giving provision out of estate for the applicants

District Court Act 1976 (Qld), s 68
Succession Act 1981 (Qld), s 41
Uniform Civil Procedure Rules1999 (Qld), r 700A

Baker v Baker (No 2) [2019] QDC 140, cited
Bosch v Perpetual Trustee Co (1938) AC 463, cited
Goodman v Windeyer (1980) 144 CLR 490, cited
King & Anorv Condon & Anor [2009] QSC 67, cited
Singer v Berghouse (1981) 181 CLR 201, applied
Stojanovska v Stojanovski (No 2) [2019] QDC 198, cited
Sweaney v Bailie [2017] QDC 295, cited

Vigolo v Bostin (2005) 221 CLR 191, applied

COUNSEL:

Fraser A for the applicants
Ivessa R for the respondent

SOLICITORS:

Bennett Carroll Lawyers for the applicants
CNG Law for the respondent

The applicants, Robyn Lea Menzies and Glenn Donald Menzies, are two of the children of Donald Menzies, deceased (the testator). Each applicant seeks an order under Part IV of the Succession Act 1981 (Qld) for adequate provision out of the estate of their late father.

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 Menzies v Menzies

Details

AGLC: Menzies v Menzies [2019] QDC 243
Case: [2019] QDC 243
Decision Date: 4 December 2019

CaseChat Overview and Summary

In the case of Menzies v Menzies, Robyn Lea Menzies and Glenn Donald Menzies sought relief under section 41 of the Succession Act 1981 (Qld) against the estate of their deceased father, Donald Menzies. They contended that they had not been left with adequate and proper maintenance and support, and therefore sought a redistribution of the estate. Shelly Gaye Menzies, the sole beneficiary of the estate, opposed the applications. The applicants sought an order for their father’s will, dated 17 December 2015, to be amended to ensure they received a portion of the estate. This involved altering clause 3 of the will to provide 60 per cent to Shelly, 20 per cent to Robyn, and 20 per cent to Glenn.

The central legal issue before the court was whether the applicants had been left without adequate provision for their maintenance and support. The court needed to determine if the applicants had demonstrated that they were in need of financial support from the estate. The court was also required to consider the meaning and scope of "adequate and proper maintenance" as defined by the Succession Act. The court had to balance the terms of the will with the statutory rights of the applicants under section 41 of the Act.

In making its decision, the court examined the financial circumstances of the applicants and their needs for maintenance and support. The court found that the applicants were not adequately provided for by the terms of the will, as it left them without any inheritance. The court was satisfied that the applicants had established their need for financial support from the estate. Consequently, the court made an order to amend the will, directing that 60 per cent of the estate go to Shelly, 20 per cent to Robyn, and 20 per cent to Glenn. The court also set a schedule for the parties to file submissions regarding the costs of the proceedings.

Orders

Orders of the court

1. Pursuant to s 41 of the Succession Act 1981 (Qld) further and better provision be made for the proper maintenance and support of the first applicant, Robyn Lea Menzies, and the second applicant, Glenn Donald Menzies, from the estate of Donald Menzies (deceased) by reading and construing the will of the deceased dated 17 December 2015 (the Will) so as to amend clause 3 of the Will:

“(a) to delete the words “for the said SHELLY GAYE MENZIES for her own sole use and benefit absolutely.”; and

(b) to insert in lieu thereof the words:

(i) 60 per cent to my daughter, Shelly Gaye Menzies;

(ii) 20 per cent to my daughter, Robyn Lea Menzies; and

(iii) 20 per cent to my son, Glenn Donald Menzies.”

2. The applicants file any submissions as to costs by 4.00pm, 9 December 2019.

3. The respondent file any submissions as to costs by 4.00pm, 13 December 2019.

4. The applicants file any submissions in reply by 4.00pm, 16 December 2019.

5. The parties have liberty to apply.

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:	Menzies & Anor v Menzies [2019] QDC 243
PARTIES:	ROBYN LEA MENZIES (first applicant) and GLENN DONALD MENZIES (second applicant) v SHELLY GAYE MENZIES as Executor of the Estate of the Late Donald Menzies (respondent)
FILE NO/S:	BD4064/16
DIVISION:	Civil
PROCEEDING:	Family provision application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	4 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 and 8 February 2019
JUDGE:	Sheridan DCJ
ORDER:	1. Pursuant to s 41 of the Succession Act 1981 (Qld) further and better provision be made for the proper maintenance and support of the first applicant, Robyn Lea Menzies, and the second applicant, Glenn Donald Menzies, from the estate of Donald Menzies (deceased) by reading and construing the will of the deceased dated 17 December 2015 (the Will) so as to amend clause 3 of the Will: “(a) to delete the words “for the said SHELLY GAYE MENZIES for her own sole use and benefit absolutely.”; and (b) to insert in lieu thereof the words: (i) 60 per cent to my daughter, Shelly Gaye Menzies; (ii) 20 per cent to my daughter, Robyn Lea Menzies; and (iii) 20 per cent to my son, Glenn Donald Menzies.” 2. The applicants file any submissions as to costs by 4.00pm, 9 December 2019. 3. The respondent file any submissions as to costs by 4.00pm, 13 December 2019. 4. The applicants file any submissions in reply by 4.00pm, 16 December 2019. 5. The parties have liberty to apply.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants applied pursuant to s 41 of the Succession Act 1981 (Qld) for proper maintenance and support out of the deceased’s estate – where respondent is sole beneficiary of estate – where respondent opposes applications – whether the applicants have been left without adequate provision – whether court ought to make order giving provision out of estate for the applicants District Court Act 1976 (Qld), s 68 Succession Act 1981 (Qld), s 41 Uniform Civil Procedure Rules1999 (Qld), r 700A Baker v Baker (No 2) [2019] QDC 140, cited Bosch v Perpetual Trustee Co (1938) AC 463, cited Goodman v Windeyer (1980) 144 CLR 490, cited King & Anorv Condon & Anor [2009] QSC 67, cited Singer v Berghouse (1981) 181 CLR 201, applied Stojanovska v Stojanovski (No 2) [2019] QDC 198, cited Sweaney v Bailie [2017] QDC 295, cited Vigolo v Bostin (2005) 221 CLR 191, applied
COUNSEL:	Fraser A for the applicants Ivessa R for the respondent
SOLICITORS:	Bennett Carroll Lawyers for the applicants CNG Law for the respondent