Ruddy v Clarke - [1996] QCA 254

IN THE COURT OF APPEAL	[1996] QCA 254
SUPREME COURT OF QUEENSLAND

Appeal No. 304 of 1996

Brisbane
[Ruddy v. Clarke]

BETWEEN:

COLEEN RUDDY

(Applicant) Appellant

AND:

PAMELA CLARKE

(Respondent) Respondent
Fitzgerald P
McPherson JA
Byrne J

Judgment delivered 02/08/1996

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: SUCCESSION - testator's family maintenance - whether adequate provision made for the proper maintenance and support of an adult daughter.

Counsel:	Mr C. Newton for appellant Mr S. J. English for respondent
Solicitors:	Robbins Watson for appellant Smith Whitehead Morwood Payne for respondent
Hearing date:	23 July 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 304 of 1996

Brisbane

Before Fitzgerald P

McPherson JA
Byrne J

[Ruddy v. Clarke]

BETWEEN:

COLEEN RUDDY

(Applicant) Appellant

AND:

PAMELA CLARKE

(Respondent) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 02/08/1996

This is an appeal from the dismissal of an application made under S.41 of the

Succession Act 1981 for provision out of the estate of the appellant's father.

The testator died on 9 July 1994. By his will dated 18 September 1992, he gave all his property to his daughter-in-law, Pamela Clarke, who was also appointed as his executrix. The estate was modest, consisting essentially of a house at the Gold Coast valued at about $150,000 and household furniture worth less than $20,000.

The appellant is one of the testator's three children. She was born in 1949; her sister is seven years older; her brother is five years her junior. She married in 1971. Her husband is in his late forties and in good health. He has worked for many years as a crane operator. The appellant and her husband are happily married. They live in their own home with their three children who, in May last year when the appellant deposed to her situation, were aged 25, 19 and 10. The two older children worked and were not financially dependent on their parents. Neither had contributed to household expenses. The appellant, who had been employed as a nurse before her marriage, did not work outside the home. In the previous year, her husband had earned $30,000 net in his job. He owned the unencumbered family home, valued at about $180,000, a motor vehicle, and an interest in an "investment unit". All told, those things were worth a little more than $215,000. The appellant received a family allowance of about $42 per week, and she derived interest of about $100 annually from a $3,500 bank deposit. The "family's expenses" were about $30,000 annually. Presumably, the circumstances were much the same at the date of the testator's death.

The appellant's affidavit included an argumentative assertion that her husband might lose his job by the time he reaches age 50, but there was no evidence to support this pessimistic apprehension. The appellant deposed to suffering middle lobe bronchiectasis. The only evidence concerning this lung disease was her statement that the condition makes her highly susceptible to colds,…

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 Ruddy v Clarke

Details

AGLC: Ruddy v Clarke [1996] QCA 254
Case: [1996] QCA 254
Decision Date: 2/08/1996

CaseChat Overview and Summary

In Ruddy v Clarke, the appeal was brought by Coleen Ruddy, the daughter of the deceased, against Pamela Clarke, the respondent and executrix of the deceased's will. The appeal arose from the dismissal of an application made under Section 41 of the Succession Act 1981, seeking provision out of the estate of the deceased, who had left all his property to Pamela Clarke. Coleen Ruddy argued that the will did not make adequate provision for her proper maintenance and support, and she sought an additional legacy of $20,000 to cover potential future adversities. The central legal issue before the Court of Appeal was whether the deceased's will failed to make adequate provision for Coleen's proper maintenance and support, considering the size and nature of the estate, Coleen's financial circumstances, and the relationship between the parties.

The Court of Appeal held that the primary judge was correct in dismissing Coleen's application. The estate was modest, consisting mainly of a house and household furniture, and the testator had intended to provide security for Pamela Clarke and her children in recognition of her care for him. The court emphasized that the testator's desire to provide for Pamela was strong, and selling the house to provide for Coleen would have defeated this intention. Furthermore, Coleen's circumstances were comfortable, with her husband employed and owning a home, a car, and an investment unit. The court concluded that Coleen had not been left without adequate provision for her proper maintenance and support, and dismissed the appeal with costs.

The final orders of the Court of Appeal were that the appeal was dismissed with costs. This decision upheld the primary judge's conclusion that the deceased's will did make adequate provision for Coleen's proper maintenance and support, and rejected Coleen's claim for an additional legacy.

Orders