Powell v Monteath

[2006] QSC 24

SUPREME COURT OF QUEENSLAND

CITATION:	Powell v Monteath [2006] QSC 024
PARTIES:	WAYNE RAYMOND POWELL (applicant) v JOHN DAVID MONTEATH (respondent)
FILE NO:	8245 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	24 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	30 January 2006
JUDGE:	Mackenzie J
ORDER:	1. That further provision be made for the proper maintenance and support of Wayne Raymond Powell out of the estate of Eileen Margaret Powell by payment of a lump sum of $40,000. 2. Leave is given for the parties to make written submissions with regard to costs within seven days of delivery of these reasons.
CATCHWORDS:	FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATRIX TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where stepson applying under Part 4 of Succession Act 1981 (Qld) for further and better provision out of the estate of his stepmother – where testatrix’s will expressly stated that no provision should be made for applicant – where “distant” relationship between applicant and testatrix – where applicant and testatrix not close at time of testatrix passing – where testatrix had taken share in property by survivorship from applicant’s father – whether provision should be made for applicant from testatrix’s estate Succession Act 1981 (Qld), s 41 Agcaoglyu v Public Trustee [2005] NSWSC 26 Allen (decd), In re; Allen v Manchester [1922] NZLR 218 Day v Bennett [2004] NSWSC 994 Freeman v Jaques [2005] QSC 200; [2005] QCA 423 Goodman v Windeyer (1980) 144 CLR 490 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) ALR 321 James v Day [2004] VSC 290 Keets v Marks [2005] VSC 172 McKenzie v Topp [2004] VSC 90 Re Estate of Edwards; Edwards v Terry [2002] NSWSC 835 Re Estate of Little; Little v Morton [2005] NSWSC 36 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11
COUNSEL:	P Mylne for the applicant RM Treston for the respondent
SOLICITORS:	Ferguson Cannon for the applicant John Monteath & Associates for the respondent

1. MACKENZIE J: 

   This is an application under Pt 4 of the Succession Act 1981 for an order that further and better provision be made for the applicant out of the estate of his stepmother. The applicant is one of the stepsons of the testatrix who died on 15 March 2004. In her last will dated 9 September 2002, the testatrix made a specific bequest of the furniture and other chattels in her residence to a friend and provided that the residue of the estate be divided equally between the

   
   

   Queensland Cancer Fund and the National Heart Foundation of Australia (Queensland Division).  It is estimated that the net sum to be distributed, taking into account the costs of these proceedings, will be of the order of $235,000. 

1. In her will, she expressly said that it was her wish that neither the applicant nor her other stepson (who died on 26 December…