CAMERON DAVID NIEBOUR-POTT (by his litigation guardian JENNIFER MARGARET NIEBOUR-POTT) and NAOMI AMBER ALICE NIEBOUR-POTT
(applicants)
v CECILIA KIT-YING POTT (as executor of the will of BRYAN FREDERICK NIEBOUR POTT)
(respondent)
FILE NO:
BS No 2789 of 2009
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
10 February 2020
DELIVERED AT:
Brisbane
HEARING DATE:
22 and 23 October 2019
JUDGE:
Ryan J
ORDERS:
Naomi Amber Alice Niebour Pott is to be included as an applicant in the application made by Cameron David Niebour-Pott (by his litigation guardian), file number S2789/2009.
I indicate that I consider provision in the sum of $400,000 ought to be made for each of the applicants out of the estate of Bryan Frederick Niebour Pott.
I will hear the parties as to the form of order and as to costs.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANTS LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants are the children of the deceased – where the applicants have been diagnosed with Asperger’s Syndrome – where the deceased did not provide for the applicants in his will – whether a wise and just testator, in the deceased’s position, would have made some provision for the applicants in his will – where a wise and just testator would have taken into account that his estate was not small; they were his children; he controlled his relationship with them and the contact they had with him; they were unlikely to find employment; their life was likely to be difficult because of their disability; their mother’s finances were limited; and there was no suggestion of any other needs based claim upon the estate – where having regard to the size of the estate, the community would not expect the deceased to leave the most vulnerable of his children dependent on welfare whilst providing for his other children who were able to meet their needs from their own resources – where the deceased failed to make adequate provision for the applicants’ proper maintenance and support in his will
SUCCESSION – FAMILY PROVISION – PROPERTY WHICH MAY BE SUBJECT TO ORDER – PRIMACY OF WIDOW’S CLAIM – EXONERATION OF MATRIMONIAL HOME – where the respondent is the widow of the deceased – whether the conduct of the respondent as executor, and any pursuit by her of litigation to the detriment of the estate, can be taken into account in deciding whether to exonerate the matrimonial home – where no evidence given of the widow’s particular attachment to the home, or her inability to find or fund a suitable replacement for it were it not exonerated – where it is not appropriate to apply the broad general rule that primacy be accorded to widows
Abrahams (by his litigation guardian the Public Trustee (Qld)) v Abrahams (2015) 13…
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.
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Details
AGLC
Niebour-Pott & Anor v Pott [2020] QSC 7
Case
[2020] QSC 7
Decision Date
CaseChat Overview and Summary
The case of Niebour-Pott & Anor v Pott involved the children of the deceased, who sought an order for adequate and proper maintenance under the Family Provision Act. Naomi Amber Alice Niebour Pott and Cameron David Niebour-Pott, the children of the deceased Bryan Frederick Niebour Pott, argued that they had not been provided for adequately in their father's will. The deceased had passed away without making any provision for the applicants in his will, who had both been diagnosed with Asperger’s Syndrome. The applicants contended that a wise and just testator, considering their disability and the size of the estate, would have made some provision for them.
The court was required to determine whether the deceased had failed to make adequate provision for the applicants' proper maintenance and support in his will, and if so, what amount of provision should be made. The court considered factors such as the size of the estate, the applicants' disabilities, and their likelihood of finding employment. The court also examined the widow's claim to the matrimonial home and whether it should be exonerated. Ultimately, the court found that the deceased had failed to make adequate provision for the applicants and ordered that $400,000 should be made for each of the applicants out of the estate of the deceased.
The court's decision was based on the evidence presented regarding the applicants' disabilities, the size of the estate, and the lack of any other needs-based claims on the estate. The court emphasised that a wise and just testator, in the deceased's position, would have made some provision for the applicants given their disabilities and the size of the estate. The court also noted that it was not appropriate to apply the broad general rule that primacy be accorded to widows in this case. The court will hear the parties as to the form of order and as to costs.
Orders
Orders of the court
Naomi Amber Alice Niebour Pott is to be included as an applicant in the application made by Cameron David Niebour-Pott (by his litigation guardian), file number S2789/2009.
I indicate that I consider provision in the sum of $400,000 ought to be made for each of the applicants out of the estate of Bryan Frederick Niebour Pott.
I will hear the parties as to the form of order and as to costs.