Stewart v Stewart

[2015] QSC 238

SUPREME COURT OF QUEENSLAND

CITATION:

Stewart v Stewart [2015] QSC 238

PARTIES:

MICHAEL ROBERT STEWART

(applicant)

v
CATHERINE ANN STEWART (AS EXECUTOR OF THE ESTATE OF THE LATE KENNETH RAYMOND STEWART)

(respondent)

FILE NO:

SC No 96 of 2014

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2015

JUDGE:

Applegarth J

ORDER:

The parties submit within seven days forms of order to make further provision for the applicant, Michael Robert Stewart, out of the estate of Kenneth Raymond Stewart in the amount of $850,000.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where applicant is son of deceased – where deceased did not provide for applicant in his will – where deceased's will appointed applicant's mother as executor and sole beneficiary – where applicant suffers from mental illness and lacks stable accommodation – where deceased did not make adequate provision for proper maintenance and support of applicant – what provision should be made for his proper maintenance and support – whether the provision should be by way of a protective trust

Succession Act 1981 (Qld), s 41(1)

Bondy v Vavros (Supreme Court of NSW, Young J, 29 August 1988, unreported), cited
Daley v Barton [2008] QSC 228, cited
Hampson v Hampson [2010] NSWCA 359, cited
Lowe v Lowe [2014] NSWSC 371, cited
McCosker v McCosker (1957) 97 CLR 566, cited
Poole v Barrow [2014] VSC 576, cited
Pizzino v Pizzino [2010] QSC 35, cited
Singer v Berghouse (1994) 181 CLR 201, applied
Vigolo v Bostin (2005) 221 CLR 191, applied

COUNSEL:

C A Brewer for the applicant

D B Fraser QC for the respondent

SOLICITORS:

Wilson Ryan Grose for the applicant

Connolly Suthers for the respondent

1. The applicant, Michael Stewart, is the son of the late Kenneth Stewart, who died on
   11 August 2013, leaving an estate of approximately $2.2 million.  Michael Stewart was left nothing in his father’s will.  His circumstances are dire.  He suffers chronic post-traumatic stress disorder and other mental illnesses as a result of his 21 years’ service as a police officer in Victoria.  He has been living in a car and in other unsatisfactory accommodation since February this year.  As a result of his mental illness he has trouble maintaining relations.   He has obligations to two teenage sons.  Although he receives a disability pension, it has not been enough to meet his expenses, and he has substantial unpaid debts.  He has reached the limits on his credit cards.  He has insufficient income or wealth to secure accommodation so as to stabilise his personal life and to pay his debts. 

2. Although Kenneth Stewart told his son that he would be well looked after in his will, he made no provision for his son.  The only will he apparently left was made on 3 May 1973.  It…