(First Applicant) and Jennifer Anne Speechley (Second Applicant)
v
Amanda Jo-Anne Willemyns (As Executor of the Estate of the Late John William Speechley, deceased) (Respondent)
FILE NO/S:
178/19
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
25 August 2023
DELIVERED AT:
Maroochydore
HEARING DATE:
6 and 7 June 2022
JUDGE:
Long SC DCJ
ORDER:
The originating application filed 10 October 2019 is dismissed.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – whether the applicants were adequately provided for in accordance with section 41 of the Succession Act 1981 – where both applicants are the adult children of the deceased – where the deceased did not provide for the applicants in his Will – where the first applicant settled his claim for provision with the respondent and discontinued his claim – where the deceased prepared a statutory declaration acknowledging the lack of provision made for each applicant – where the deceased and the second applicant were estranged for a lengthy period of time.
SUCCESSION – FAMILY PROVISION – JURISDICTION – GENERALLY – where the second applicant was an undischarged bankrupt at the time of making the application – where the second applicant was discharged from bankruptcy before the matter was heard at trial – where the respondent contends the second applicant does not have standing to make application for provision under the will having been an undischarged bankrupt at the time of making the application and that any award to her would potentially be property that is divisible amongst the creditors of the bankrupt.
[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.
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Details
AGLC
Speechley v Willemyns [2023] QDC 154
Case
[2023] QDC 154
Decision Date
CaseChat Overview and Summary
Speechley v Willemyns is a case involving a dispute between two adult children of a deceased individual, the late David Willemyns. The children, referred to as the applicants, sought provision from the deceased's estate under section 41 of the Succession Act 1981, as they were not provided for in his Will. The deceased had acknowledged the lack of provision in a statutory declaration, but the matter proceeded to trial due to the applicants' claims. The court was required to determine whether the applicants were adequately and properly maintained and if the second applicant, who was an undischarged bankrupt at the time of the application, had standing to make the claim.
The central legal issue was whether the applicants were adequately and properly maintained in accordance with section 41 of the Succession Act. The court had to consider the circumstances of the applicants and the deceased, including the statutory declaration acknowledging the lack of provision and the estrangement between the deceased and the second applicant for a lengthy period. Additionally, the court needed to decide if the second applicant, who was an undischarged bankrupt at the time of the application but was discharged before the trial, had standing to make the claim. The respondent argued that the second applicant did not have standing and that any award to her could potentially be property that is divisible among the creditors of the bankrupt.
The court found that the first applicant had settled his claim with the respondent and discontinued his claim, which left only the second applicant's claim to be considered. The court held that the second applicant did not have standing to make the application due to her status as an undischarged bankrupt at the time of the application. Even though she was discharged before the trial, the court considered the impact of her bankruptcy on the estate and the potential division of any award among her creditors. Consequently, the court dismissed the originating application filed on 10 October 2019.
The court's final order was the dismissal of the originating application filed on 10 October 2019, leaving the second applicant without a provision from the deceased's estate.
Orders
Orders of the court
The originating application filed 10 October 2019 is dismissed.