Mulcahy v Mulcahy - [2019] QDC 19

DISTRICT COURT OF QUEENSLAND

CITATION:

Mulcahy v Mulcahy [2019] QDC 19

PARTIES:

CATHERINE MULCAHY
(first applicant)

and

VICTORIA MULCAHY
(second applicant)

and

RUSSELL JOHN MULCAHY
(respondent)

FILE NO/S:

BD4811/2017

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 December 2018

JUDGE:

McGill SC, DCJ

ORDER:

Order that provision be made for the applicant from the estate of the deceased by payment to her of the sum of $80,000.

CATCHWORDS:

TESTATOR’S FAMILY MAINTENANCE – Application of adult daughter – estate to sibling – small estate – whether need shown – strength of competing claim to bounty – whether disentitling conduct – provision ordered.

TESTATOR’S FAMILY MAINTENANCE – Compromise of application – whether executor has power to compromise application and pay money from the estate without a court order – payment treated as made by executor as beneficiary.

TESTATOR’S FAMILY MAINTENANCE – Procedure – small estate – directions to limit costs, by limiting length of trial and focussing on essential issues.

Succession Act 1981 s 41.

Abrahams v Abrahams [2015] QCA 286 – applied.
Affoo v Public Trustee of Queensland [2012] 1 Qd R 408 - followed.
Blair v Blair (2014) 10 VR 69 – cited.
Collett v Knox [2010] QSC 132 – followed.
Re Hatte [1943] St R Qd 1 – cited.
Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 53 ALJR 249 – applied.
Palmer v Dolman [2005] NSWCA 361 – cited.
Re Paulin [1959] VLR 462 – cited.
Singer v Berghouse (1994) 181 CLR 210 – applied.
Steinmetz v Shannon [2018] NSWSC 1090 – not followed.
Stewart v Stewart [2015] QSC 238 – followed.
Vigolo v Bostin (2005) 221 CLR 191 – applied.
Watts v Public Trustee of Queensland [2010] QSC 410 – cited.

COUNSEL:

D. Caruana for the applicant

D.P. Gardiner for the respondent

SOLICITORS:

Butlers Inheritance Lawyers for the applicant

Bradley Munt & Co for the respondent

Lorraine Mulcahy passed away on 21 March 2017, aged 75 years. On 9 August 2017 a grant of probate of her last will, made on 13 March 2014, was made in favour of the respondent, her son.[1] At the date of death she had no spouse; she was survived by three children, the respondent and two daughters, the first applicant and the second applicant. In the events that happened, the deceased left her entire estate to the respondent. At the time of her death, the estate consisted only of money in a bank account,[2] primarily the sale proceeds of her former house, which settled shortly before she passed away. She had not long before this moved into a nursing home.
[1]Affidavit of respondent filed 22 May 2018 para 5; Exhibit RM1.
[2]Respondent p 37; and presumably some personal effects of no value.

The deceased and her husband separated in 1979, and subsequently divorced, with property and financial matters being resolved between them.[3] The former husband, the father of the applicants and the respondent, passed…

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 Mulcahy v Mulcahy

Details

AGLC: Mulcahy v Mulcahy [2019] QDC 19
Case: [2019] QDC 19
Decision Date: 28 February 2019

CaseChat Overview and Summary

The case of Mulcahy v Mulcahy involved an application by an adult daughter seeking maintenance from the estate of her deceased father. The estate was relatively small and was left to the father's brother. The daughter's application raised several legal issues concerning the testator's family maintenance, including whether there was sufficient evidence of need, the strength of the competing claim by the brother, and whether any conduct by the applicant disentitled her to a provision from the estate. Additionally, the case considered whether the executor had the authority to compromise the application and pay money from the estate without a court order, and if such a payment could be treated as made by the executor as a beneficiary.

The court addressed these issues by first determining that there was a demonstrated need for the applicant, despite the relatively small size of the estate. The court also found that the brother's claim to the estate did not outweigh the applicant's need, and that there was no conduct by the applicant that would disentitle her from a provision. Regarding the executor's power to compromise, the court held that such a compromise was permissible and that the payment could be treated as made by the executor as a beneficiary. The court emphasised the importance of limiting costs in small estate cases by focusing on essential issues and limiting the length of the trial.

Following the court's reasoning, it ordered that a provision be made for the applicant from the estate of the deceased by payment to her of the sum of $80,000. This decision provides guidance on the application of testator's family maintenance provisions in cases where the estate is small, and there are competing claims. It also clarifies the executor's power to compromise such applications and the appropriate procedural approach in such cases.

Orders

Orders of the court

Order that provision be made for the applicant from the estate of the deceased by payment to her of the sum of $80,000.

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:	Mulcahy v Mulcahy [2019] QDC 19
PARTIES:	CATHERINE MULCAHY (first applicant) and VICTORIA MULCAHY (second applicant) and RUSSELL JOHN MULCAHY (respondent)
FILE NO/S:	BD4811/2017
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 February 2019
DELIVERED AT:	Brisbane
HEARING DATE:	13 December 2018
JUDGE:	McGill SC, DCJ
ORDER:	Order that provision be made for the applicant from the estate of the deceased by payment to her of the sum of $80,000.
CATCHWORDS:	TESTATOR’S FAMILY MAINTENANCE – Application of adult daughter – estate to sibling – small estate – whether need shown – strength of competing claim to bounty – whether disentitling conduct – provision ordered. TESTATOR’S FAMILY MAINTENANCE – Compromise of application – whether executor has power to compromise application and pay money from the estate without a court order – payment treated as made by executor as beneficiary. TESTATOR’S FAMILY MAINTENANCE – Procedure – small estate – directions to limit costs, by limiting length of trial and focussing on essential issues. Succession Act 1981 s 41. Abrahams v Abrahams [2015] QCA 286 – applied. Affoo v Public Trustee of Queensland [2012] 1 Qd R 408 - followed. Blair v Blair (2014) 10 VR 69 – cited. Collett v Knox [2010] QSC 132 – followed. Re Hatte [1943] St R Qd 1 – cited. Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 53 ALJR 249 – applied. Palmer v Dolman [2005] NSWCA 361 – cited. Re Paulin [1959] VLR 462 – cited. Singer v Berghouse (1994) 181 CLR 210 – applied. Steinmetz v Shannon [2018] NSWSC 1090 – not followed. Stewart v Stewart [2015] QSC 238 – followed. Vigolo v Bostin (2005) 221 CLR 191 – applied. Watts v Public Trustee of Queensland [2010] QSC 410 – cited.
COUNSEL:	D. Caruana for the applicant D.P. Gardiner for the respondent
SOLICITORS:	Butlers Inheritance Lawyers for the applicant Bradley Munt & Co for the respondent