Oswell v. Jones & Ors

[2007] QSC 384

SUPREME COURT OF QUEENSLAND

CITATION:

Oswell v Jones & Ors [2007] QSC 384

PARTIES:

MARGARET FRANCES OSWELL
(applicant)
v
MARGARET ANNE JONES, ELIZABETH CATHERINE JONES and JAMES GEORGE DEEB AS EXECUTORS FOR THE ESTATE OF FRANCIS BRUCE OSWELL DECEASED
(first respondents)
and
PETER WILSON AS LITIGATION GUARDIAN FOR LEWIS GWYNN JONES
(second respondent)
and
SIMON JAMES OSWELL and CHRISTOPHER JOHN OSWELL
(third respondents)

FILE NO:

S4123 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

14 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2007; 4 December 2007

JUDGE:

Chesterman J

ORDER:

Order in terms of paragraph 81 of this judgment

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – PRINCIPLES ON WHICH RELEIF GRANTED – PRINCIPLES OF EXERCISE OF DISCRETION – CIRCUMSTANCES TO BE CONSIDERED– where the testator had three adult children from his first marriage – where the applicant was the severely disabled daughter of the first marriage - where the testator left each of those adult children a fixed sum of money - where the testator left the majority of his estate to his second wife and her grandson - where the applicant made application for an order that better provision be made for her out of the testator’s estate - whether the applicant was left with inadequate provision for her proper maintenance and support – whether an order for the transfer of the entire estate or some lesser part of the estate would constitute proper maintenance and support

Social Security Act 1991 (Cth), s1209L, s1209M, s1209P (2)(b)
Succession Act 1981 (Qld), s 41, s52

Bosch v Perpetual Trustee Co Ltd [1938] AC 463, applied
Singer v Berghouse (1994) 181 CLR 201, applied
Vigolo v Bostin (2004) 221 CLR 191, applied
Whitmont v Lloyd NSWSC Unrep. 31 July 1995, applied

COUNSEL:

Ms. R.M. Treston, with her Mr D Salisbury for the applicant
Mr D R M Murphy S.C. for the first respondents
Mr D.J Morgan for the second respondent
Mr A.S Mellick for the third respondents

SOLICITORS:

Biggs & Biggs for the applicant
McCullough Robertson for the first respondents
MPN Lawyers for the second respondent
John Cross & Co for the third respondents

1. Francis Bruce Oswell (‘the testator’) died on 19 August 2003 at the age of 83.  His wife of 41 years, Glenda Mavis Oswell, predeceased him in 1986.  On 28 July 2003,  22 days before he died, the testator made a will.  It was admitted to Probate on

   
   

   6 October 2004. 

1. The executors of the will are Margaret Anne Jones, her daughter-in-law

   
   

   Elizabeth Catherine Jones, and Mr James George Deeb, a partner in the executors’ firm of solicitors.

1. Mrs Margaret Jones had known the testator and his wife for many years.  She was a widow when Mrs Oswell died in 1986.  She and the testator deepened their friendship.  They agreed not to marry but cohabited from 1987 until December 2002 when the testator…