DISTRICT COURT OF QUEENSLAND
CITATION:
Menzies & Anor v Menzies [2019] QDC 243
PARTIES:
ROBYN LEA MENZIES
(first applicant)
andGLENN 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 700ABaker 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, citedVigolo v Bostin (2005) 221 CLR 191, applied
COUNSEL:
Fraser A for the applicants
Ivessa R for the respondentSOLICITORS:
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.
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- AGLC
- Menzies v Menzies [2019] QDC 243
- Case
- [2019] QDC 243
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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