Re Noble - [1999] QSC 221

IN THE SUPREME COURT
OF QUEENSLAND

No. S938 of 1995
Brisbane

Before Douglas J
[Re Noble]
IN THE MATTER of the Will of BERYL MOLLY WRIGHT late of 64 Moxon Road, Burbank, Brisbane in the State of Queensland, Home Duties, Deceased
- and -
IN THE MATTER of an Application by GAYE NOBLE pursuant to Part IV of the said Act.

CATCHWORDS: TESTATORS FAMILY MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - DUTY OF TESTATOR - DUTY TO CHILDREN - whether applicant adult daughter left with insufficient provision.

TESTATORS FAMILY MAINTENANCE - PRINCIPLES UPON WHICH RELIEF GRANTED - GENERAL MATTERS - PRINCIPLES OF EXERCISE OF DISCRETION - circumstances to consider in exercising discretion - application by ill adult daughter where misunderstanding as to true financial position.
Succession Act 1981-1987 s. 41
Coates v National Trustee Executors & Agency Co Ltd (1956) 95 CLR 494
Dunn v Dunn (1959) 100 CLR 361
Re Hardgraves [1955] QSR 601
Re K [1921] QSR 172
Singer v Berghouse No.2 [1994) 68 ALJR 653
White v Barron (1980) 144 CLR 431

Counsel: Mr K J Lynch for applicant.
Mr H Zillman for respondent.

Solicitors:Cannon Solicitors for applicant.
Bennett Carrol & Gibbons for respondent.
Frank Carroll for intervenor.

Hearing Date: 2 September, 1999
JUDGMENT - DOUGLAS J

Delivered the 10th day of September 1999

1. The applicant, Gaye Noble, is the only child of the testatrix, Beryl Molly Wright, who died on 27 June 1995. The present value of the estate of the testator is approximately $675,000. In her last Will and Testament, of which the respondent is the sole executor, the testator left the following legacies:
a)$2,000 to her friend Barbara Tester;
b)$20,000 to the executor;
c)$50,000 to the applicant; and
d)$150,000 each to the applicant’s two adopted children,
Michael Whitchurch and Kelly Whitchurch.

2.  The residuary estate was left to the Leukaemia Foundation of Queensland. Both Whitchurches are the adopted children of the applicant from a former marriage.
3.  The applicant is aged 52 years. Her parents were divorced when she was very young and she was brought up by her mother and a stepfather in Sydney where she met John Whitchurch and married. She had a previous unfortunate experience when her mother refused to allow her to marry a young man, with whom she had fallen in love, solely on the basis that he was of the Catholic faith. The applicant’s marriage to Whitchurch failed but in the meantime they had adopted the two children.
4.  The testatrix was an ill woman for a long time before her death. She was a severe diabetic and ended her days with severely impaired sight which was attributable to that disease. The testatrix and the applicant had a difficult and changeable relationship over the years but despite her mother’s difficulties the applicant never changed her affectionate view of her mother. She did get on rather better with her stepfather.
5.  The testatrix’s Will is dated 1 October 1993. At the time she…

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 Re Noble

Details

AGLC: Re Noble [1999] QSC 221
Case: [1999] QSC 221
Decision Date: 2 September 1999

CaseChat Overview and Summary

In the case of Re Noble, the applicant, Gaye Noble, sought an increase in the provision made for her in the Will of her late mother, Beryl Molly Wright. The estate was valued at approximately $675,000, with specific bequests including $2,000 to a friend, $20,000 to the executor, $50,000 to Gaye, and $150,000 each to her two adopted children. The residuary estate was left to the Leukaemia Foundation of Queensland. The applicant contended that the testator's understanding of her financial situation was incorrect and that her circumstances had deteriorated significantly since the Will was executed. The applicant's husband had been diagnosed with colon cancer, and she had a genetic predisposition to a debilitating disease that might render her blind and deaf. The court was required to determine whether the testator had made adequate provision for the applicant's maintenance and support and, if not, what further provision should be made.

The court considered the statutory obligation under the Succession Act 1981-1987, s. 41, to make adequate provision for the proper maintenance and support of the deceased's child. The court examined the relationship between the applicant and the testator, the applicant's age and marital status, her financial circumstances, conduct, and the size of the estate. The court also weighed the testator's intentions, the making of inter vivos gifts, and the principle that the court should not rewrite the Will. The court concluded that the testator had failed to make adequate provision for the applicant and that further provision should be made. The applicant's circumstances had markedly deteriorated since the testator's death, and the testator's understanding of the applicant's financial situation was incorrect.

The court decided that the legacy provided for the applicant should be increased by $175,000, making the total $225,000. This increase would be distributed among the legacies left to the applicant's grandchildren and the residuary estate left to the Leukaemia Foundation of Queensland. The court took into account the submissions made by the solicitor for one of the grandchildren but determined that it was appropriate to make the proposed orders. The court also proposed that the costs of the applicant and the executor be paid out of the estate on an indemnity basis, except for the costs related to the respondent's application for disclosure.

Orders