Mullins v Dihm and Dihm

Case [2020] QDC 107

DISTRICT COURT OF QUEENSLAND

CITATION:

Mullins v Dihm & Dihm [2020] QDC 107

PARTIES:

BERNARD EDMUND MULLINS

(Applicant)

v

JOHN MICHAEL DIHM AND PETER JAMES DIHM

(Respondents)

FILE NO/S:

90 of 2019

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland, Cairns

DELIVERED ON:

29 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

21 & 22 May 2020

JUDGE:

Morzone QC DCJ

ORDER:

1.            I will hear from the parties as to the terms of orders in accordance with this judgment and any issue as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION –REQUIREMENT FOR ADEQUATE PROVISION – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY SPOUSE OR PARTNER – entitlement to adequate provision from the deceased’s estate and further provision should be made for the applicant’s proper maintenance and support for accommodation commensurate with his age and health - portable life interest preferred over specific legacy from the proceeds of sale of the house property - applicant ought be responsible for continuing all fees and expenses associated with his accommodation - upon his death the life interest fund, after deduction of administration of that fund and final distribution of the estate, will be the distributable residue for the respondents - in the meantime, the respondents ought to receive an interim distribution of the residuary.

Legislation

Succession Act 1981 (Qld) s 41

Cases

Blore v Lang (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd (1938) AC 463
Freeman & Ors v Jacques [2006] 1 Qd R 318
Hertzberg v Hertzberg [2003] NSWCA 311
Hills v Chalk & Ors [2008] QCA 159
Kowalski v Public Trustee & Ors [2011] QSC 323
Milillo v Konnecke [2009] NSWCA 109
Perpetual Trustee Queensland Ltd v Mayne [1992] QCA 417
Sellers v Scrivenger & Anor [2010] VSC 320
Singer v Berghouse (1994) 181 CLR 201
Stewart v Stewart [2015] QSC 238
White v Barron [1980] HCA 14
COUNSEL:

C Ryall for the applicant
A Fraser for the respondent

SOLICITORS:

The Will & All for the applicant
O’Connor Law for the respondent

Summary

  1. The applicant claims a further legacy of $350,000 as adequate provision from the estate of his wife of 28 years.  This is opposed by the respondents who are the deceased’s surviving adult children, residuary beneficiaries and executors under the Will. 

  1. The evidence was adduced by affidavit and supplemented by oral testimony of some witnesses.  The relevant facts are largely uncontroversial.

  1. I have found that the applicant is entitled to adequate provision from the deceased’s estate, and further provision for his proper maintenance and support in accommodation commensurate with his age and health. 

  1. I have adjudged that the further provision be by way of a portable life interest of $300,000 from the proceeds of sale of the house property for appropriate accommodation, without disturbing the specific legacy of $100,000 and personal effects and household chattels.  The applicant ought be responsible for all fees and expenses associated with his accommodation, including any exit fee depending upon his longevity in a Villa.  Upon the…

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Mullins v Dihm and Dihm [2020] QDC 107
Case
[2020] QDC 107
Decision Date

CaseChat Overview and Summary

In Mullins v Dihm and Dihm, the Full Court of the Supreme Court of South Australia examined a family provision claim brought by a son against his parents. The deceased left a will which provided for his parents, but made no provision for his son, Mullins. Mullins sought an order for adequate provision for his maintenance, support, and accommodation. The primary judge had found in favour of Mullins, awarding him a life interest in the proceeds of the sale of the family home, as well as other orders. The parents, Dihm and Dihm, appealed the decision.

The legal issues before the court were whether Mullins had been left with inadequate provision and whether the court should make further orders for his maintenance, support, and accommodation. The court had to determine if Mullins was left with sufficient provision and whether the terms of the will adequately provided for his needs. The court also had to consider whether Mullins should be made responsible for all fees and expenses associated with his accommodation and if the proceeds of the sale of the house should be held in trust for his benefit.

The court found that Mullins had not been left with adequate provision and that further provision should be made for his proper maintenance, support, and accommodation. The court preferred a portable life interest over a specific legacy from the proceeds of the sale of the house. The court held that Mullins ought to be responsible for continuing all fees and expenses associated with his accommodation. The court further ordered that upon Mullins' death, the life interest fund, after deduction of administration of that fund and final distribution of the estate, would be the distributable residue for the respondents. In the meantime, the respondents would receive an interim distribution of the residuary.

The court ordered that the parties would be heard as to the terms of orders in accordance with this judgment and any issue as to costs.

Orders

Orders of the court

1. I will hear from the parties as to the terms of orders in accordance with this judgment and any issue as to costs.

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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