Owens v Mills - [2018] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

Owens v Mills & Anor [2018] QDC 63

PARTIES:

CARMIN CHARLENE OWENS
(applicant)

and

CHERIE ELIZABETH MILLS
(first respondent)

CARMEL MARGARET CHILLEMI
(second respondent)

FILE NO/S:

119 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland at Cairns

DELIVERED ON:

16 March 2018 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

16 March 2018

JUDGE:

Fantin DCJ

ORDER:

1.   The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:-

6. I devise and bequeath the rest and residue of my estate both real and personal as follows:-

a.   As to 21.4% share thereof to my daughter Sonya De Marzi absolutely;

b.   As to 21.3% share thereof to my daughter Carmin Charlene Owens;

c.   As to 21.3% share thereof to my son Dean Ronald Busch;

d.   As to 18% share thereof to my niece the said Cherie Elizabeth Mills;

e.   As to 18% share to my niece Melanie Therese Chillemi absolutely.

2.   The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice;

3.   The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – compromise of family provision application under Part 4 of the Succession Act 1981 (Qld) – where no provision is made – where claim by adult children – modest estate – application under s 41 of the Succession Act 1981 (Qld) for adequate provision – proper maintenance and support

Legislation
District Court Act 1976 (Qld) s 68(1)(b)
Succession Act 1981(Qld) s 41

Cases
Abrahams v Abrahams [2015] QCA 286
Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408
Singer v Berghouse (No 2) [1994] 181 CLR 201

COUNSEL:
M Liston, solicitor, for the Applicant
H Mellick, solicitor, for the Respondent

SOLICITORS:
Lilley Grose & Long for the Applicant
Mellick Smith & Associates as Town Agent for the Respondent

HER HONOUR: These are my reasons in both files 118 of 2017 and 119 of 2017. This is an application for final orders to give effect to the compromise of a family provision application made under part 4 of the Succession Act 1981 Queensland in the estate of Kenneth Michael Rice, deceased. The applicants Mr Busch and Ms Owens are the adult biological children of the deceased. The respondents are the executors of the deceased’s will. The deceased was survived by the applicants and another daughter, Ms De Marzi. At the date of his death, apparently the deceased was unaware that the applicants were his biological children.

The deceased’s last will was dated 11 March 2011. Probate was granted on 22 May 2017. Pursuant to…

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 Owens v Mills

Details

AGLC: Owens v Mills [2018] QDC 63
Case: [2018] QDC 63
Decision Date: 16 March 2018 (ex tempore)

CaseChat Overview and Summary

The case of Owens v Mills involved the estate of Kennith Michael Rice, who passed away leaving behind a will that made no provision for his adult children, Carmin Charlene Owens and Dean Ronald Busch, and only provided for his nieces. The dispute arose when the children applied for adequate provision under section 41 of the Succession Act 1981 (Qld), seeking maintenance and support in light of the will's omission. The court had to determine whether the estate was modest enough to warrant a revision of the will and whether the children were entitled to maintenance from the estate.

The central legal issues the court had to address were whether the estate could be considered modest, and if so, whether the children were in need of maintenance and support. The court examined the overall value of the estate, the nature of the provision made by the deceased, and the financial circumstances of the applicants. Given the estate's modest value and the absence of any provision for the children, the court had to weigh these factors to decide if the children were entitled to a share of the estate.

The court concluded that the estate was indeed modest and that the children were in need of maintenance and support, given their father's failure to provide for them in his will. The court found that the deceased's will should be altered to include the children in the distribution of the estate. The court ordered that the will be read and construed as though Clause 6 was amended to include the children and their nieces in equal shares. Additionally, the court ordered that the costs of the proceedings were to be paid by the estate, with the children's costs assessed on a standard basis and the respondents' costs on an indemnity basis.

The final orders of the court included the amendment of the deceased's will to include the children, with the estate to be divided equally among the children and nieces. The court also directed that the estate was to pay the children's costs of the proceedings on a standard basis, while the respondents were to pay their own costs on an indemnity basis. This decision ensured that the children received a fair share of their father's estate, reflecting the court's consideration of the family's needs and the provisions of the Succession Act.

Orders

Orders of the court

1. The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:-

6. I devise and bequeath the rest and residue of my estate both real and personal as follows:-

a. As to 21.4% share thereof to my daughter Sonya De Marzi absolutely;

b. As to 21.3% share thereof to my daughter Carmin Charlene Owens;

c. As to 21.3% share thereof to my son Dean Ronald Busch;

d. As to 18% share thereof to my niece the said Cherie Elizabeth Mills;

e. As to 18% share to my niece Melanie Therese Chillemi absolutely.

2. The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice;

3. The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.

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:	Owens v Mills & Anor [2018] QDC 63
PARTIES:	CARMIN CHARLENE OWENS (applicant) and CHERIE ELIZABETH MILLS (first respondent) CARMEL MARGARET CHILLEMI (second respondent)
FILE NO/S:	119 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland at Cairns
DELIVERED ON:	16 March 2018 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	16 March 2018
JUDGE:	Fantin DCJ
ORDER:	1. The last will and testament of Kennith Michael Rice (also known as Kenneth Michael Rice) dated 11 March 2011 be read and construed as though Clause 6 thereof was deleted and the following inserted instead:- 6. I devise and bequeath the rest and residue of my estate both real and personal as follows:- a. As to 21.4% share thereof to my daughter Sonya De Marzi absolutely; b. As to 21.3% share thereof to my daughter Carmin Charlene Owens; c. As to 21.3% share thereof to my son Dean Ronald Busch; d. As to 18% share thereof to my niece the said Cherie Elizabeth Mills; e. As to 18% share to my niece Melanie Therese Chillemi absolutely. 2. The Applicant’s costs of and incidental to these proceedings as assessed on a standard basis are to be paid by the estate of the late Kenneth Michael Rice; 3. The First and Second Respondent’s costs of and incidental to these proceedings as assessed on an indemnity basis are to be paid out of the estate of the late Kenneth Michael Rice.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – compromise of family provision application under Part 4 of the Succession Act 1981 (Qld) – where no provision is made – where claim by adult children – modest estate – application under s 41 of the Succession Act 1981 (Qld) for adequate provision – proper maintenance and support Legislation District Court Act 1976 (Qld) s 68(1)(b) Succession Act 1981(Qld) s 41 Cases Abrahams v Abrahams [2015] QCA 286 Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 Singer v Berghouse (No 2) [1994] 181 CLR 201
COUNSEL:	M Liston, solicitor, for the Applicant H Mellick, solicitor, for the Respondent
SOLICITORS:	Lilley Grose & Long for the Applicant Mellick Smith & Associates as Town Agent for the Respondent