Sellars v Maeyke

[2005] QSC 368

SUPREME COURT OF QUEENSLAND

CITATION:	Sellars v Maeyke [2005] QSC 368
PARTIES:	MAUREEN SELLARS (applicant) v ANNETTE GAYE MAEYKE as personal representative of the estate of Donald Stanley Sellars Deceased (respondent)
FILE NO/S:	BS 7950/05
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2005
JUDGE:	White J
ORDER:	Directions made as per draft
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY SPOUSE – claim by widow – whether prima facie case – where lack of particularity in information provided by the applicant about the applicant’s assets and the estate’s assets
Practice Direction No 8 of 2001 Succession Act 1981 (Qld), s 41
Bladwell v Davis [2004] NSWCA 170, 4 June 2004, cited Golosky v Golosky NSWCA, 5 October 1993, unreported, cited
Higgins v Higgins [2005] QSC 110 (6 May 2005), cited Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 25, cited White v Barron (1979) 144 CLR 431, cited
COUNSEL:	Mr P Lane for the applicant Mr T Matthews for the respondent/executrix
SOLICITORS:	Hunt & Hunt for the applicant M A Kent & Associates for the respondent

1. The applicant seeks adequate provision for her proper maintenance and support from the estate of her late husband Donald Stanley Sellars who died on 25 December 2004 aged 75 years. The applicant is the second wife of the testator. He married his first wife in 1952 and was divorced from her in 1979. From that marriage there were four children, the eldest, Roslyn, was born in 1954 and died in 1997. The other children are Annette Maeyke, respondent to this application as executrix of her father’s will, now aged 50, Susan Edwards now aged 47 and Robert Sellars now aged 41 years.

2. As can best be ascertained from the applicant’s affidavits she and the testator commenced an intimate relationship in the 1980’s. The applicant had known him for some years previously. The applicant spent weekends with the testator at his property at Pine Mountain near Ipswich. She moved there permanently in 1992 and on 28 April 1996 they married. She was born on 21 April 1933 and is now aged 72 years.

3. By his will dated 19 September 2001 the testator appointed the applicant and his daughter Annette as executrices and trustees of his will. They have not applied for probate.

4. The testator bequeathed the sum of $10,000, any motor car of which he was possessed at death and any shares and listed property trust investments which he possessed at death to the applicant. He left the remainder of his estate to be divided equally between his three surviving children subject to a right of residence at his property at Pine Mountain to the applicant.

5. That property is semi-rural and of some 82 acres comprising a house, shed and cattle yards with boundary and internal fencing…