Serle v Walsh

[2006] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:

Serle v Walsh & Ors [2006] QSC 377

PARTIES:

BARRY EDWARD ERNEST SERLE
(applicant)
v
RHONDA ANN WALSH
(first respondent)
GARY ROY BOCCALATTE
(second respondent)
DIANNE KAY CREED
(third respondent)
as executors of the Will of Iola Rita Serle

FILE NO/S:

BS1537 of 2006

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

13 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2006

JUDGE:

Muir J

ORDER:

I order that further provision be made to the applicant out of the estate of the deceased and that the will of the deceased be varied by inserting before clause 3(g) a new paragraph (f)(a) as follows:

“(f)(a) To give $40,000 to my husband BARRY EDWARD ERNEST SERLE absolutely.”

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY SPOUSE – where testatrix made bequests to the applicant and others – where inter vivos gifts to testatrix’s children – whether an order ought be made for the applicant’s proper maintenance and support

Family Provision Act 1982 (NSW)
Succession Act 1981 (Qld), s 41, Part IV

Bladwell v Davis [2004] NSWCA 170, applied
Cooper v Dungan [1976] 50 ALJR 539, cited
Grey v Harrison [1997] 2 VR 359, not followed
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, considered
Luciano v Rosenblum (1985) 2 NSWLR 65, distinguished
Re Allen (Deceased) Allen v Manchester [1922] NZLR 218, considered
Singer v Berghouse (No 2) (1994) 181 CLR 201, applied
Vigolo v Bostin [2005] 79 ALJR 731, applied

COUNSEL:

R I Cameron for the applicant
M K Conrick for the respondents

SOLICITORS:

Pollock Ingram for the applicant
Heiner & Doyle for the respondents

Introduction

1. Iola Serle died on 2 June 2005, leaving a will dated 1 September 2004. In the will she made a few minor specific bequests, left to the applicant (her husband) her interest in the corporate trustee of a family trust and her interest in the family trust,[1] and gave the residue of her estate to the applicant and her three adult children in equal shares. The applicant applies, pursuant to Part IV of the Succession Act 1981, for an order that “adequate provision” be made for his proper maintenance and support out of the deceased’s estate.

   [1]The deceased had transferred her shares in the company to the applicant prior to her death.

1. In the course of submissions it emerged, by inference at least, that the applicant’s objective was to obtain the estate’s principal asset, a dwelling house in Albert Street, Caloundra, in which he had resided with the deceased for a great many years. The precise terms of the order sought were not formulated.

The assets of the Estate

1. At the date of her death, the deceased’s assets were: the house at Albert Street, Caloundra, valued at approximately $525,000; $47,474 in a…