Pearson v Denman - [2023] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Pearson v Denman [2023] QDC 221

PARTIES:
DIANNE KAY PEARSON
(Applicant)

v

LENNARD WILLIAM DENMAN as executor of THE ESTATE OF THE LATE LAWRENCE BENTLEY RIPPON

FILE NOS:

BD No 3727 of 2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

16 November 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATES:

16 November 2023

JUDGE:

Porter KC DCJ

ORDER:

1. Pursuant to s 41(1) of the Succession Act 1981 (Qld), provision be made for the applicant from the estate of Lawrence Bentley Rippon, deceased, by reading and construing the law will of the deceased dated 23 April 2023 as if it were varied as follows:

a.   That clause 6.1 be deleted and a new clause 6.1 be inserted to read as follows:

“I give the sum of $125,000 to my step daughter Diane Kay Pearson absolutely”; and

b.   That clauses 6.2 and 6.3 be renumbered as clauses 6.4 and 6.5; and

c.   That a new clause 6.3 be inserted as follows:

“I give the rest and residue of my estate after payment of all my debts, funeral expenses and administration expenses to my daughter Elizabeth Yvonne Denman”.

2.            There is no order as to the applicant’s costs.

3.            The respondent’s costs of the proceeding be paid out of the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – OTHER MATTERS – where the applicant was one of three applicant step children for further maintenance out of the estate – where the other two applicants settled their applications following a mediation – where the court earlier made orders in terms of those settlements – where the applicant sought to rely on the settlement sums obtained by the other applicants as being relevant to what would be adequate maintenance for the applicant – where the parties settled the present application on the eve of the trial – whether the provision made by the settlements were relevant to the issues arising on the applicant’s application.

CASES:

Legislation

Succession Act 1981 (Qld) s. 41(1)

Cases

Abrahams v Abrahams [2015] QCA 286

McKew v Vivian [2023] QDC 146

R v Kilic (2016) 259 CLR 256

R v TAS [2021] QCA 49

Vukolic v Browning [2022] QDC 179

Secondary Materials

Judge Bernard Porter KC, ‘Issues in the Conduct of Family Provision Litigation’ (2022) 39 QLD Lawyer 87

COUNSEL:

G Elmore for the applicant

S M Gerber for the respondent

SOLICITORS:
Mott and Associates for the applicant

Sambrook Grant for the respondent

This is an application for family provision by the applicant stepdaughter of the deceased, under section 41(1) of the Succession Act 1981 (Qld). The matter was to proceed to trial this morning but was settled on the eve of trial. Orders under section 41(1) can only be made by the Court, but the approach to making orders where there is a settlement between parties with legal capacity is different from when a matter proceeds to trial. In short,…

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 Pearson v Denman

Details

AGLC: Pearson v Denman [2023] QDC 221
Case: [2023] QDC 221
Decision Date: 16 November 2023 (ex tempore)

CaseChat Overview and Summary

Pearson v Denman involved Diane Kay Pearson, one of the three stepchildren of the deceased Lawrence Bentley Rippon, seeking further maintenance out of the estate. The dispute centred on the adequacy of maintenance provisions in the deceased's will and whether the sums obtained by the other two applicants in their settlements could be considered in determining the adequacy of maintenance for the applicant. The matter was heard in the Queensland Supreme Court.

The central legal issue before the court was whether the settlements reached by the other two applicants were relevant to the determination of what would constitute adequate maintenance for the applicant. The applicant argued that the settlement sums should be taken into account when assessing her own claim for maintenance. The court needed to consider whether the settlements reached by the other applicants, which had already been incorporated into the estate distribution, could inform the court's decision on the applicant's claim.

The court held that the settlements reached by the other applicants were not relevant to the issues arising in the applicant's application. The court reasoned that the settlements were specific to the individual circumstances of the other applicants and did not provide a basis for determining the adequacy of maintenance for the applicant. The court found that the applicant had established that the provisions made for her in the will were inadequate and ordered the will to be varied to provide her with $125,000 absolutely, while adjusting the residue of the estate accordingly. The court also ordered that the respondent's costs of the proceeding be paid out of the estate on an indemnity basis.

In summary, the court found in favour of the applicant, ordering the deceased's will to be varied to provide her with $125,000 and making no order as to the applicant's costs. The respondent's costs were to be paid out of the estate.

Orders

Orders of the court

1. Pursuant to s 41(1) of the Succession Act 1981 (Qld), provision be made for the applicant from the estate of Lawrence Bentley Rippon, deceased, by reading and construing the law will of the deceased dated 23 April 2023 as if it were varied as follows:

a. That clause 6.1 be deleted and a new clause 6.1 be inserted to read as follows:

“I give the sum of $125,000 to my step daughter Diane Kay Pearson absolutely”; and

b. That clauses 6.2 and 6.3 be renumbered as clauses 6.4 and 6.5; and

c. That a new clause 6.3 be inserted as follows:

“I give the rest and residue of my estate after payment of all my debts, funeral expenses and administration expenses to my daughter Elizabeth Yvonne Denman”.

2. There is no order as to the applicant’s costs.

3. The respondent’s costs of the proceeding be paid out of the estate of the deceased on an indemnity basis.

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:	Pearson v Denman [2023] QDC 221
PARTIES:	DIANNE KAY PEARSON (Applicant) v LENNARD WILLIAM DENMAN as executor of THE ESTATE OF THE LATE LAWRENCE BENTLEY RIPPON
FILE NOS:	BD No 3727 of 2019
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	16 November 2023 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATES:	16 November 2023
JUDGE:	Porter KC DCJ
ORDER:	1. Pursuant to s 41(1) of the Succession Act 1981 (Qld), provision be made for the applicant from the estate of Lawrence Bentley Rippon, deceased, by reading and construing the law will of the deceased dated 23 April 2023 as if it were varied as follows: a. That clause 6.1 be deleted and a new clause 6.1 be inserted to read as follows: **“I give the sum of $125,000 to my step daughter Diane Kay Pearson absolutely”; and b. That clauses 6.2 and 6.3 be renumbered as clauses 6.4 and 6.5; and c. That a new clause 6.3 be inserted as follows: “I give the rest and residue of my estate after payment of all my debts, funeral expenses and administration expenses to my daughter Elizabeth Yvonne Denman”. 2. There is no order as to the applicant’s costs. 3. The respondent’s costs of the proceeding be paid out of the estate of the deceased on an indemnity basis.**
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – OTHER MATTERS – where the applicant was one of three applicant step children for further maintenance out of the estate – where the other two applicants settled their applications following a mediation – where the court earlier made orders in terms of those settlements – where the applicant sought to rely on the settlement sums obtained by the other applicants as being relevant to what would be adequate maintenance for the applicant – where the parties settled the present application on the eve of the trial – whether the provision made by the settlements were relevant to the issues arising on the applicant’s application.
CASES:	Legislation Succession Act 1981 (Qld) s. 41(1) Cases Abrahams v Abrahams [2015] QCA 286 McKew v Vivian [2023] QDC 146 R v Kilic (2016) 259 CLR 256 R v TAS [2021] QCA 49 Vukolic v Browning [2022] QDC 179 Secondary Materials Judge Bernard Porter KC, ‘Issues in the Conduct of Family Provision Litigation’ (2022) 39 QLD Lawyer 87
COUNSEL:	G Elmore for the applicant S M Gerber for the respondent
SOLICITORS:	Mott and Associates for the applicant Sambrook Grant for the respondent