Roberts v Bourke - [2017] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Roberts v Bourke & Anor [2017] QDC 91

PARTIES:

STEPHANIE JANE ROBERTS
(applicant)

v

AARON VINCENT BOURKE and GENE LITHGOW ELLIOTT
(respondents)

FILE NO/S:

2572/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Ex tempore reasons given 13 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2017

JUDGE:

Kefford DCJ

ORDER:

Pursuant to s 41(8) of the Succession Act 1981 the time for commencing the application is extended to 4 July 2016. 1.

Further and better provision be made for the proper maintenance and support of the Applicant, Stephanie Jane Roberts by reading and construing the will of Rosslyn Leila Elliott, as if clause 3.1 to 3.5 were deleted and the following clauses were inserted:            2.

“3.1 I GIVE my 50 per cent share of the property at 24 Wardoo Street, Ashmore, Queensland, to my friend Stephanie Jane Roberts absolutely.

3.2 I GIVE the sum of $150,000 to my friend Stephanie Jane Roberts.”

The Applicant pay her own costs of the proceedings. 3.

The Respondents’ costs of the proceedings be paid from the estate on the indemnity basis. 4.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – where the applicant was the de facto partner of the deceased – whether a life interest in the deceased’s 50 per cent share in the property was proper maintenance and support for the applicant

Succession Act 1981 (Qld), s 41

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286, followed

Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309, applied

Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40, followed

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, followed

White v Barron (1980) 144 CLR 431; [1980] HCA 14, followed

COUNSEL:

G R Dickson for the applicant

No appearance for the respondents

SOLICITORS:

Purcell & Associates for the applicant

No appearance for the respondents

HER HONOUR: This is an application for final orders to give effect to the compromise of the family provision application made under part 4 of the Succession Act 1981 (Qld) in the estate of Rosslyn Leila Elliott. Stephanie Jane Roberts is the applicant. She was the de facto partner of the deceased from 1985 until her death on 5 March 2015. Aaron Vincent Bourke and Gene Lithgow Elliott and the applicant are the executors of the deceased’s will. The last will was dated 26 December 2014. Probate was granted on 24 November 2015.

By way of background, the deceased and the applicant met in 1982, when they both were working in Canberra, and they became close friends. In early 1983, the applicant moved back to Perth, where she had resided prior to moving to Canberra, and the deceased returned to live on the Gold Coast. On 4 January 1985, the applicant moved to Queensland. Soon after arriving they…

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 Roberts v Bourke

Details

AGLC: Roberts v Bourke [2017] QDC 91
Case: [2017] QDC 91
Decision Date: 13 April 2017

CaseChat Overview and Summary

The case of Roberts v Bourke involved a dispute over the proper maintenance and support of Stephanie Jane Roberts, the de facto partner of the deceased, Rosslyn Leila Elliott. The deceased had left a will which provided for Ms Roberts to receive a life interest in the deceased’s 50% share of a property at 24 Wardoo Street, Ashmore, Queensland. Ms Roberts sought further and better provision for her maintenance and support, arguing that this life interest did not constitute proper maintenance. The court was required to decide whether the life interest granted in the will was adequate and proper maintenance for Ms Roberts.

The legal issues that the court had to address included the interpretation of the term "proper maintenance and support" under the Family Provision Act, and whether the life interest in the deceased's share of the property constituted such maintenance. The court also had to consider whether the proposed re-drafting of the will, which involved granting Ms Roberts an absolute interest in the property and a lump sum of $150,000, would provide more suitable maintenance and support. In considering these issues, the court examined the nature of the relationship between the parties, the financial circumstances of Ms Roberts, and the provisions of the will.

The court found that the life interest in the property did not provide adequate and proper maintenance for Ms Roberts. It held that the proposed re-drafting of the will, granting her an absolute interest in the property and a lump sum, would more appropriately provide for her maintenance and support. Consequently, the court ordered the will to be read and construed as if the original clauses were replaced with the proposed clauses. The court also ordered that Ms Roberts pay her own costs, while the respondents' costs were to be paid from the estate on an indemnity basis.

This decision underscores the court's role in ensuring that the provisions of a will provide adequate and proper maintenance for the deceased's family members, particularly in the context of de facto relationships. The court's re-drafting of the will highlights the importance of considering the individual circumstances of the parties and the potential for equitable outcomes in family provision cases.

Orders

Orders of the court

Pursuant to s 41(8) of the Succession Act 1981 the time for commencing the application is extended to 4 July 2016. 1.

Further and better provision be made for the proper maintenance and support of the Applicant, Stephanie Jane Roberts by reading and construing the will of Rosslyn Leila Elliott, as if clause 3.1 to 3.5 were deleted and the following clauses were inserted: 2.

“3.1 I GIVE my 50 per cent share of the property at 24 Wardoo Street, Ashmore, Queensland, to my friend Stephanie Jane Roberts absolutely.

3.2 I GIVE the sum of $150,000 to my friend Stephanie Jane Roberts.”

The Applicant pay her own costs of the proceedings. 3.

The Respondents’ costs of the proceedings be paid from the estate on the indemnity basis. 4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Roberts v Bourke & Anor [2017] QDC 91
PARTIES:	STEPHANIE JANE ROBERTS (applicant) v AARON VINCENT BOURKE and GENE LITHGOW ELLIOTT (respondents)
FILE NO/S:	2572/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	Ex tempore reasons given 13 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	13 April 2017
JUDGE:	Kefford DCJ
ORDER:	*Pursuant to s 41(8) of the Succession Act 1981* the time for commencing the application is extended to 4 July 2016. 1. Further and better provision be made for the proper maintenance and support of the Applicant, Stephanie Jane Roberts by reading and construing the will of Rosslyn Leila Elliott, as if clause 3.1 to 3.5 were deleted and the following clauses were inserted: 2. “3.1 I GIVE my 50 per cent share of the property at 24 Wardoo Street, Ashmore, Queensland, to my friend Stephanie Jane Roberts absolutely. 3.2 I GIVE the sum of $150,000 to my friend Stephanie Jane Roberts.” The Applicant pay her own costs of the proceedings. 3. The Respondents’ costs of the proceedings be paid from the estate on the indemnity basis.** 4.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – where the applicant was the de facto partner of the deceased – whether a life interest in the deceased’s 50 per cent share in the property was proper maintenance and support for the applicant Succession Act 1981 (Qld), s 41 Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286, followed Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309, applied Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40, followed Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, followed White v Barron (1980) 144 CLR 431; [1980] HCA 14, followed
COUNSEL:	G R Dickson for the applicant No appearance for the respondents
SOLICITORS:	Purcell & Associates for the applicant No appearance for the respondents