O'Dudgen v Windridge

[2015] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Dudgen v Windridge [2015] QDC 119

PARTIES:

HERACLEA O’DUDGEN
(Applicant)

V

JOHN FRANCIS WINDRIDGE
(Respondent)

FILE NO/S:

No 399 of 2013 Townsville

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court Townsville

DELIVERED ON:

12 May 2015

DELIVERED AT:

Bowen

HEARING DATE:

30 April 2015

JUDGE:

Durward SC DCJ

ORDERS:

1 Application granted

2 Orders in terms of the draft attached

CATCHWORDS:

WILLS - SUCCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – SPOUSE OR PARTNER – where the applicant and deceased lived together for six years and the applicant cared for the deceased during illness before his death – whether the applicant was the de facto partner of the deceased at time of death – where the issue of the existence of a de facto relationship was resolved and the beneficiaries accepted that the applicant had been the de facto partner of the deceased at the time of death – where parties agreed to an alteration to the Will of the deceased to provide the benefit of the deceased’s superannuation policy fund to be paid to the applicant – where the Court was satisfied that the applicant was an eligible person and a person in need of support – where the parties’ agreement allowed for the proper maintenance and support of the applicant – where the Court approved a Deed of Settlement on the basis of the parties’ agreement

LEGISLATION:

COUNSEL:

Succession Act 1981 s 41.

Mr Elliott solicitor for the Applicant
Mr Dyer solicitor for the Respondent

SOLICITORS:

Guides & Elliott Solicitors for the Applicant
Rapid Legal Solutions Pty Ltd for the Respondent

1. Heraclea O’Dudgen (the Applicant) has applied for further provision to be made for her proper maintenance and support from the Estate of Graham James O’Day (“the deceased”) pursuant to section 41 of the Succession Act 1981 (Qld) (“the Act”).

The Estate

1. John Francis Windridge (“the respondent”) is the Executor of the Estate of the deceased. There are six beneficiaries of the Estate who are the nieces and nephews of the deceased, namely, Bronwyn Anne Condon, Rebecca Anne Matthews, Angela Mary O’Day, Tyron Robert O’Day, Damien Ronald Bramich and Helen Terese Bramich.

The Originating Application

1. The Applicant sought provision from the Estate on the basis that she was the de facto partner of the deceased at the time of his death.

The materials

1. The beneficiaries initially disputed the claim that the Applicant was the de facto of the deceased. Insofar as that issue was in dispute there were Affidavits filed by the six beneficiaries, by family members of the deceased and by the Applicant.

The initial dispute

1. The issue of de facto relationship was the matter that I understand troubled another judge when he was asked to determine the application on the papers and without an oral hearing. His Honour did not consider it a suitable case to be determined without oral submissions.

1. Hence the Application came before me in the ordinary course of listing of matters in the Civil Applications List in Townsville. I heard oral submissions from Mr O’Dyer and Mr Elliott. I reserved the decision so that I could properly consider the filed material and the oral submissions. 

The issue

1. The Court must be satisfied that the deceased did not make any proper provision for the Applicant: that is, that she is property entitled; and that she is a person for whom proper provision was not made by the testator. The question really is, it seems, whether she can satisfy the Court that she was a de facto of the deceased prior to his death.

Resolution by the parties

1. In the end result, upon mutual consideration of all of that material, the de facto issue was resolved by the parties upon an acceptance by the beneficiaries that the Applicant had indeed been the de facto partner of the deceased.

1. An agreement has been reached between the parties to settle the claim: in simple terms, the agreement involves the insertion of a new clause 5(a) into the Will of the deceased. That clause has been drawn so as to provide for the proper maintenance and support of the Applicant from the Estate of the deceased.

1. The parties having reached an agreement as to that matter, they seek to have the Court approve a settlement on the basis of that agreement. The fact that the parties have reached an agreement about the matter is commendable and sensible, particularly in the context of a small Estate and the mutual desire to minimise costs to all of the parties.

The proposed settlement

1. The Applicant seeks provision from the Estate of the deceased on the following bases: 

(1)          Provision be made for the Applicant by the Will of the deceased dated 5 September 1991 being read and construed as follows:

(a)         That the following clause 5 (a) appear in the Will immediately after clause 5 as follows: 

“5(a)   I give all death benefits and whatever other amounts may be paid to my Estate by the Trustee of REST Industry Superannuation policy member number 120888953 to Heraclea O’Dudgen who is my dependant for the tax purposes in respect of such benefits”.

(2)       That the Respondent’s costs of an incidental to the proceeding be paid by the Estate on the indemnity basis.

(3)       That the beneficiaries costs of and incidental to the proceedings be paid by the Estate on the indemnity basis.

(4) The Applicant is to bear the Applicant’s own costs and no interest is payable pursuant to section 52 (1) (e) (i) of the Succession Act 1981 Qld. 

The relationship

1. The history of the relationship between the Applicant and the deceased can be described in brief terms as follows: 

·     The Applicant is aged 65 years (Date of Birth 02 March 1950). She was previously married and after the death of her husband, supported a daughter on a pension as a single mother and subsequently did so from income earned in employment. 

·     The Applicant met the deceased in 2006 and a relationship developed to the stage where they lived together for about six years prior to the death of the deceased on 25 March 2013.

·     The relationship had become a cohabitation that included an intimate, mutually supportive and caring relationship in a broad context throughout that period.

·     The Applicant cared for the deceased during an illness prior to his decease.

·     The deceased had told the Applicant that he would make her a beneficiary in his Will. 

Discussion

1. I have perused the Affidavit material that has been filed. To the extent that much of it disputed the issue of a de facto relationship, that material has now been superseded by the beneficiaries’ concession that the Applicant’s assertion of the existence of a de facto relationship is correct. The agreement between the parties, is contained in a “Deed of Settlement” and was executed by all of them and by the Respondent, on 04 February 2015. 

1. The agreement provides for the benefits of the deceased’s REST superannuation policy fund to be paid to the Applicant. She is to make some contribution to the costs incurred by Estate and by the beneficiaries that have been incurred from the litigation of the disputed – but now resolved – issue, from the benefits that she will receive from the Deed of Settlement.

1. The Deed of Settlement, of course, involves the amendment of the Will of the deceased, a matter that is of no small moment per se, but that nevertheless is a necessary consequence where an adjustment to a devise by a Testator is made pursuant to section 41 of the Act.

Conclusion

1. Having considered the documents filed in the application and upon hearing the oral submissions made on behalf of the parties, I am satisfied that the settlement is beneficial to them in that: 

(a)      The Applicant was a de facto partner of the deceased;

(b)      The settlement allows for the proper maintenance and support of the Applicant; 

(c)     It still provides for the nieces and nephews of the deceased which was the deceased’s wish contained in his Will; 

(d)     It minimises the costs to the parties by avoiding the need for the Applicant’s Originating Application to proceed to a hearing; 

and

(e)      The parties have satisfied themselves that sufficient funds will be received from the REST superannuation fund to satisfy the order and have satisfied themselves that there will be sufficient funds remaining in the rest and residue of the Estate for the beneficiaries. 

1. Accordingly, I am satisfied that the Applicant is properly entitled and is a person for whom proper provision was not made by the deceased in his Will.

1. The application is granted.

Orders

1. I make Orders in terms of the Draft Order.