Pinkstone (as executor) v Pinkstone

[2005] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Pinkstone (as executor) v Pinkstone [2005] QDC 137

PARTIES:

URSULA PINKSTONE (As Executor of the

Will of Donald William Pinkstone, Deceased)            (Applicant)

AND

SCOTT KEN PINKSTONE  (Respondent)

FILE NO/S:

63 of 2005

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

2 June 2005

DELIVERED AT:

Maroochydore

HEARING DATE:

27 May 2005

JUDGE:

Judge J.M. Robertson

ORDER:

Respondent’s application filed on 24 February 2005 is dismissed with costs.

CATCHWORDS:

Succession – Application for adequate maintenance by adult son, small estate, widow sole beneficiary.

Procedure – r293 of the Uniform Civil Procedure Rules, whether son’s application is bound to fail, application by the executor for summary judgment.

Cases cited:

Gray v Morris [2004] QCA 5

Higgins v Higgins & Anor [2005] QSC 110

Re Coventry [1979] 3 All ER 815

Re Vrint [1940] Ch 920, 3 All ER 40

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, 9 March 2005.

Bernstom v National Australia Bank Limited (2003) 1 Qd R 469

Swain v Hillman [2001] 1 All ER 91

Legislation:

Uniform Civil Procedure Rules, rules 293 and 171(1)(a)

Succession Act, ss 41(1) & 41(12)

COUNSEL:

Mr K. Conrick (for the applicant)

Mr R. Alldridge (for the respondent)

SOLICITORS:

Neilson Stanton & Parkinson Solicitors (for the applicant)

Rea & Sockhil Solicitors (for the respondent)

1. On 24 February 2005, Scott Pinkstone (the respondent) applied to the Court pursuant to s 41(1) of the Succession Act 1981 for adequate provision out of the estate of his late father Donald William Pinkstone (the testator).  The testator died on 28 May 2004.  His widow Ursula Pinkstone (the applicant) was granted probate of his last will dated 3 October 2003 on 2 December 2004.  She is the sole beneficiary.  The applicant married the testator on 24 June 2003 and lived with him until he was hospitalised about three weeks prior to his death.  The respondent is one of three adult sons of the testator.  He is 44 years of age, married with two children.  He is a structural engineer and is employed.  He has some assets, but no real estate.

1. The applicant seeks an order that the application for adequate provision by the respondent be struck out. The parties agree that the application is really in the nature of a summary judgment application pursuant to r 293 of the Uniform Civil Procedure Rules, and that, in order to succeed the applicant must demonstrate that the respondent has no real prospect of succeeding on all or part of his claim and; there is no need for a trial.  The applicant will not succeed unless she can satisfy me that the respondent’s case is “hopeless, or bound to fail”: per Chesterman J in Gray v Morris [2004] QCA 5. Her application is not characterised as an application to strike out the respondent’s claim on the basis that it discloses no reasonable cause of action: r 171(1)(a) of the