Richards v Augustine No 2 - [2012] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:

Richards v Augustine No 2 [2012] QSC 278

PARTIES:

CAROL ANN RICHARDS
(applicant)
and
COLIN BRUCE AUGUSTINE
(first respondent)
and
MERVYN CLIVE AUGUSTINE
(second respondent)

FILE NO:

5634 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2011- 28 October 2011

JUDGE:

Peter Lyons J

ORDER:

1. Order as per annexure C

CATCHWORDS:

PROCEDURE - COSTS - GENERAL RULE- COSTS FOLLOW THE EVENT - COSTS OUT OF A FUND - WHEN COSTS ALLOWED OUT OF A FUND - LITIGATION CAUSED BY TESTATOR, EXECUTOR OR BENEFICIARY - EXECUTION OR REVOCATION OF WILL - where applicant contended provision in her father’s will was insufficient - where respondents challenged application in circumstances where there was reason for them to recognise merit in the applicant’s contention - where the applicant was successful - where parties were directed to submit a proposed form of order - where the sister of the applicant and the respondents was entitled to one quarter of the residue of the estate and a specific legacy of $45,000 under the will - where the sister did not take part in the litigation and assisted in attempts to settle the litigation - where the effect of the proposed order submitted by the parties would be that no residue remained; and that the sister would receive only the legacy - whether the legacy to the applicant’s sister should be varied

Re Hall (1959) 59 SRNSW 219
ReLanfear (1940) 57 WN (NSW) 181, considered
ReScali [2010] NSWSC 1254, considered
Szlazko v Travini [2004] NSWSC 610, considered
Vasiljev v Public Trustee [1974] 2 NSWLR 497, 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

On 12 March 2012, reasons were given in which I determined that the sum of $250,000 should be paid to the applicant out of the estate of her deceased father. I invited the parties to make submissions about the form of order to be made, to give effect to this determination.

I was subsequently provided with a draft order, a copy of which is annexure A to these reasons, including an order making provision for the applicant out of the estate in the sum mentioned. However, the order also provided that the costs of the applicant be paid out of the estate; as well as the costs of the respondents.

The respondents are the sons of the deceased, and the brothers of the applicant. They are also the executors of the deceased’s will.

The parties have a sister, Marie. She had not taken an active part in the proceedings. Under the will, Marie was to receive a specific legacy of $45,000, together with a one-quarter share of the residue of the estate. The earlier reasons recorded the result of a calculation of the value of the residue of the…

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 Richards v Augustine No 2

Details

AGLC: Richards v Augustine (No 2) [2012] QSC 278
Case: [2012] QSC 278
Decision Date: 14 September 2012

CaseChat Overview and Summary

The matter of Richards v Augustine No 2 was before the Supreme Court of New South Wales. The applicant, in the case, sought to contest a provision in her father's will, which she believed was insufficient. The respondents, who were the executors of the will, contested the application. The central issue before the court was whether the legacy left to the applicant's sister, who was also a party to the proceedings, should be varied to ensure that some residue of the estate remained.

The court considered several precedents in reaching its decision. It examined cases such as Re Hall, Re Lanfear, Re Scali, Szlazko v Travini, and Vasiljev v Public Trustee. These cases provided guidance on the principles governing the variation of legacies and the distribution of estates. The court noted that the applicant's sister, who was entitled to one quarter of the residue of the estate and a specific legacy of $45,000 under the will, had not participated in the litigation and had assisted in attempts to settle the dispute. The proposed order submitted by the parties would leave no residue for distribution and would only provide the sister with her specific legacy.

The court concluded that the legacy to the applicant's sister should be varied to ensure that some residue remained for distribution. The effect of the proposed order, as submitted by the parties, would result in no residue remaining and the sister receiving only her specific legacy. The court ordered that the legacy should be varied to allow for some residue to remain, ensuring a fair distribution of the estate. The final orders of the court are detailed in annexure C.

Orders

Orders of the court

1. Order as per annexure C

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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CITATION:	Richards v Augustine No 2 [2012] QSC 278
PARTIES:	CAROL ANN RICHARDS (applicant) and COLIN BRUCE AUGUSTINE (first respondent) and MERVYN CLIVE AUGUSTINE (second respondent)
FILE NO:	5634 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	14 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2011- 28 October 2011
JUDGE:	Peter Lyons J
ORDER:	1. Order as per annexure C
CATCHWORDS:	PROCEDURE - COSTS - GENERAL RULE- COSTS FOLLOW THE EVENT - COSTS OUT OF A FUND - WHEN COSTS ALLOWED OUT OF A FUND - LITIGATION CAUSED BY TESTATOR, EXECUTOR OR BENEFICIARY - EXECUTION OR REVOCATION OF WILL - where applicant contended provision in her father’s will was insufficient - where respondents challenged application in circumstances where there was reason for them to recognise merit in the applicant’s contention - where the applicant was successful - where parties were directed to submit a proposed form of order - where the sister of the applicant and the respondents was entitled to one quarter of the residue of the estate and a specific legacy of $45,000 under the will - where the sister did not take part in the litigation and assisted in attempts to settle the litigation - where the effect of the proposed order submitted by the parties would be that no residue remained; and that the sister would receive only the legacy - whether the legacy to the applicant’s sister should be varied Re Hall (1959) 59 SRNSW 219 ReLanfear (1940) 57 WN (NSW) 181, considered ReScali [2010] NSWSC 1254, considered Szlazko v Travini [2004] NSWSC 610, considered Vasiljev v Public Trustee [1974] 2 NSWLR 497, 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