Richards v Augustine

Case [2012] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION:

Richards v Augustine & Anor [2012] QSC 46

PARTIES:

CAROL ANN RICHARDS

(applicant)

AND

COLIN BRUCE AUGUSTINE

(first respondent)

AND

MERVYN CLIVE AUGUSTINE

(second respondent)

FILE NO/S:

5634/10

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Supreme Court

DELIVERED ON:

12 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2011- 28 October 2011

JUDGE:

Peter Lyons J

ORDER:

1. The parties provide further submissions relating to orders consequential to these reasons, including as to costs

CATCHWORDS:

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN - where legacy of $45,000 made for applicant in the will of applicant’s father - where applicant contends provision was insufficient - whether provision was insufficient

Succession Act 1981 (Qld) Part IV, s 41

Ahearn v Ahearn [1917] St R Qd 167, considered

Blore v Lang (1960) 104 CLR 124, considered

Bosch v Perpetual Trustee Co Ltd [1938] AC 463, considered

Collings v Vakas [2006] NSWSC 393 at [67], considered

Frey v Frey [2009] QSC 43, considered

Goodman v Windeyer (1980) 144 CLR 490, followed

Hughes v National Trustees, Executors And Agency Company Of Australasia Limited (1979) 143 CLR 134, considered

Kay v Archbold [2008] NSWSC 254, distinguished

McCosker v McCosker (1957) 97 CLR 566, considered

O’Donnell v Gillespie & Anor [2010] QSC 22, considered

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9, considered

Public Trustee v Brown (1915) 34 NZLR 951, considered

Re Campbell [1951] GLR 287, considered

Re Guthrie (1983) 32 SASR 86, considered

Re Hatte [1943] St R Qd 1, considered

Re Leonard [1985] 2 NZLR 88, considered

Re Lintern (1982) 32 LSJS 202, considered

Re Schwerdt [1939] SASR 333, considered

Rose v Rose [1922] NZLR 809, considered

Singer v Berghouse (1994) 181 CLR 201, considered

Vigolo v Bostin (2005) 221 CLR 191, followed

Wolnizer v Public Trustee [2001] NSWSC 667, considered

COUNSEL:

D Schneidewin for the applicant

D Morgan for the respondents

SOLICITORS:

De Groots Wills & Estates Lawyers for the applicant
Payne Butler Lang for the respondents

  1. The applicant (Carol) has applied under Part IV of the Succession Act 1981 (Qld) for further provision from the estate of her deceased father Mervyn Augustine (Mervyn).  Mervyn died on 19 September 2009.  The application is opposed by the executors of Mervyn’s will, who are Carol’s two brothers (respectively Bruce and Clive).

The deceased’s will

  1. The deceased’s will is dated 2 October 2003.  At the time of his death, Mervyn owned a 3/8th interest in land described as Lot 5 on RP864721 (Oakey Creek).  Under the will, this land passed to Bruce.  Mervyn owned two parcels of land described as Lot 30 on YL143 and Lot 80 on YL230 (together the Home Property), and an adjoining property described…

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AGLC
Richards v Augustine & Anor [2012] QSC 46
Case
[2012] QSC 46
Decision Date

CaseChat Overview and Summary

In the case of Richards v Augustine, the applicant, Richards, sought to challenge the validity of a will made by her father, Augustine. Richards contended that the will did not make sufficient provision for her, as it left her with a legacy of $45,000. Augustine had made various other bequests, including significant gifts to his other children and charitable donations. The legal issue before the court was whether Richards had been left with insufficient provision for her maintenance, support, and benefit, as required by section 41 of the Succession Act 1981 (Qld).

The court considered the relevant statutory framework and various precedents in its analysis. The court examined cases such as Bosch v Perpetual Trustee Co Ltd and Goodman v Windeyer to understand the principles governing family provision claims. It also considered relevant case law from Queensland and other Australian jurisdictions. The court distinguished cases such as Kay v Archbold and Wolnizer v Public Trustee, which involved different factual circumstances. After reviewing the evidence and submissions, the court found that the bequest of $45,000 was insufficient to provide for Richards' reasonable financial needs. The court held that Augustine had failed to make sufficient provision for Richards.

In its reasons, the court emphasised the importance of considering the applicant's reasonable financial needs in light of the testator's capacity to make provision and the nature of the estate. The court noted that the $45,000 bequest, while substantial, did not account for Richards' ongoing financial requirements. The court also highlighted the significant gifts made to Augustine's other children and the charitable donations, which reduced the overall estate available for family provision claims. Based on this analysis, the court concluded that Augustine's will did not make sufficient provision for Richards. The court ordered that Richards' claim for reasonable financial provision be allowed, subject to further submissions regarding the consequential orders, including costs.

Orders

Orders of the court

1. The parties provide further submissions relating to orders consequential to these reasons, including as to costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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