Morris v Morris

Case [2025] QSC 7

SUPREME COURT OF QUEENSLAND

CITATION:

Morris v Morris [2025] QSC 7

PARTIES:

JO-ANNE MAREE MORRIS

(applicant)

v
KAREN LEE MORRIS (in her capacity as executor of the estate of Douglas John Morris (deceased)

(respondent)

FILE NO/S:

BS 2703 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Hindman J

ORDER:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999, this application proceed without an oral hearing;

2. Pursuant to rule 7 of the Uniform Civil Procedure Rules 1999, the time for filing and hearing this application be abridged;

3. Pursuant to section 41 of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of JO-ANNE MAREE MORRIS out of the estate of DOUGLAS JOHN MORRIS deceased, by reading and construing the will of the deceased dated 8 March 2021 as if the existing clauses 3 & 4 are deleted. and replaced with the following:

“3. I give my property at 16 Jodi Close, Ningi, Queensland more fully described as lot 12 on registered plan 908870 title reference 50159929:

(a) 85% to my wife Jo-Anne Maree Morris for her benefit and use absolutely;

(b) 15% to my daughter Karen Lee Morris subject to the right to reside of my wife Jo-Anne Morris for a period of 10 years on the condition that Jo-Anne pays the rates, levies and taxes associated with the land and keeps the property in a good state of repair, fair wear and tear excluded.

4. I give my household chattels to my wife Jo-Anne Maree Morris for her benefit and use absolutely.

5.  I give the rest and residue of my estate:

(a) As to $6,000 to the State Children's (Cancer) Fund Qld;

(b) As to the balance to my daughter Karen Lee Morris for her benefit and use absolutely."

4.   The Respondent pay the Applicant's costs be fixed at $24,000 from the estate of the deceased.

5.   The Respondent's costs of the proceeding be paid out of the estate on the indemnity basis.

6.   The parties have liberty to apply in respect of these orders.

CATCHWORDS:

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - TREATMENT OF PARTICULAR APPLICANT - SURVIVING SPOUSE - where the applicant and deceased were married for nearly 40 years, living in a home in the name of the deceased - where the deceased left a will - where the deceased (after a charitable gift) left his estate equally to his spouse and surviving child - where the primary asset of the estate is the home - where the applicant is elderly - where the applicant is mostly retired - where the applicant’s income is limited - where the applicant has health conditions - whether in all the circumstances the deceased made adequate provision for the applicant – where the surviving child has competing needs - where the applicant…

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AGLC
Morris v Morris [2025] QSC 7
Case
[2025] QSC 7
Decision Date

CaseChat Overview and Summary

In the matter of Morris v Morris, the applicant, Jo-Anne Maree Morris, sought additional family provision from the estate of her late husband, Douglas John Morris. The deceased left a will which distributed his estate equally between Jo-Anne and his daughter, Karen Lee Morris. However, Jo-Anne, who is elderly, retired, and has limited income and health issues, argued that the will did not provide adequately for her maintenance and support. The legal issues before the court included whether the deceased had made adequate provision for Jo-Anne and, if not, what additional provision should be made.

The court examined the circumstances of the case, including the length of the marriage, the primary asset being the family home, and the health conditions of Jo-Anne. The court noted that both Jo-Anne and the executors of the will agreed that further provision should be made for Jo-Anne. Given these circumstances and the agreement between the parties, the court found that the deceased had not made adequate provision for Jo-Anne. The court ordered that the will be read and construed to provide for a more equitable distribution of the estate. Specifically, the court ordered that 85% of the property be given to Jo-Anne for her benefit and use absolutely, with 15% going to Karen Lee Morris, subject to Jo-Anne's right to reside in the property for ten years.

In light of the above, the court ordered that further and better provision be made for Jo-Anne. The court also ordered that Jo-Anne's costs be fixed at $24,000 from the estate of the deceased, and that the executors' costs of the proceeding be paid out of the estate on the indemnity basis. The parties were granted liberty to apply in respect of these orders.

Orders

Orders of the court

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999, this application proceed without an oral hearing;

2. Pursuant to rule 7 of the Uniform Civil Procedure Rules 1999, the time for filing and hearing this application be abridged;

3. Pursuant to section 41 of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of JO-ANNE MAREE MORRIS out of the estate of DOUGLAS JOHN MORRIS deceased, by reading and construing the will of the deceased dated 8 March 2021 as if the existing clauses 3 & 4 are deleted. and replaced with the following:

“3. I give my property at 16 Jodi Close, Ningi, Queensland more fully described as lot 12 on registered plan 908870 title reference 50159929:

(a) 85% to my wife Jo-Anne Maree Morris for her benefit and use absolutely;

(b) 15% to my daughter Karen Lee Morris subject to the right to reside of my wife Jo-Anne Morris for a period of 10 years on the condition that Jo-Anne pays the rates, levies and taxes associated with the land and keeps the property in a good state of repair, fair wear and tear excluded.

4. I give my household chattels to my wife Jo-Anne Maree Morris for her benefit and use absolutely.

5. I give the rest and residue of my estate:

(a) As to $6,000 to the State Children's (Cancer) Fund Qld;

(b) As to the balance to my daughter Karen Lee Morris for her benefit and use absolutely."

4. The Respondent pay the Applicant's costs be fixed at $24,000 from the estate of the deceased.

5. The Respondent's costs of the proceeding be paid out of the estate on the indemnity basis.

6. The parties have liberty to apply in respect of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The application is made on the basis that it be determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure. Rule 489 provides:489 Proposal for decision without oral hearing (1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing. (2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless— (a) under rule 491, the court considers it inappropriate to do so; or (b) under rule 494, the respondent requires an oral hearing; or (c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or (d) the Chief Justice or Chief Judge suspends the operation of this rule by direction. The structure of rule 489 is that:(a)jurisdiction to proceed without oral hearing is granted;(b)the jurisdiction is enlivened by a proposal by an applicant;(c)the proposal must be accepted in the absence of the features in rule 489(2)(a)-(d). Section 6(1) of the Succession Act 1981 (Qld) grants jurisdiction to this Court in relation to “all matters relating to the estate and the administration of the estate of any deceased person”. That includes jurisdiction to determine applications for family provision under Part 4. Section 41(1) of the Succession Act provides:41 Estate of deceased person liable for maintenance(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant ... The determination of an application for provision is a two-step process. Firstly, it must be determined whether the provision made in the will for the applicant is “inadequate”.[1] That must be assessed as a matter of fact upon all the relevant circumstances.[2] If inadequacy is found, the Court progresses to the second step which is to determine what provision should be made.[3][1]Singer v Berghouse (1994) 181 CLR 201 at 209-210.[2]Vigolo v Bostin (2005) 221 CLR 191 at 231.[3]Singer v Berghouse (1994) 181 CLR 201 at 209-210. Here, the parties have reached an agreed position. That agreement cannot vest jurisdiction in the Court to make an order.[4] However, where parties have agreed as to the appropriate provision and there are no other interests involved, the Court will usually make orders in the terms of the compromise between the parties.[5][4]Watts v The Public Trustee of Queensland [2010] QSC 410; Affoo v Public Trustee of Queensland[2011] QSC 309.[5]Abrahams v Abrahams [2015] QCA 286 following Watts v The Public Trustee of Queensland [2010] QSC 410, in turn following Hadley v McNamara; Re the estate of Mary Anne McNamara (unreported NSWSC, 7 December 2005).

Ratio Decidendi

Legal Principle Established

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