Summers v Garland - [2006] QSC 85

SUPREME COURT OF QUEENSLAND

CITATION: Summers v Garland [2006] QSC 085

PARTIES:                    BARBARA FAY SUMMERS
(Applicant)
v
JAMES PETER GARLAND and JOSEPHINE   JUNE PEARCE as Executors of the Will of PETER
   JAMES GARLAND (deceased)
(Respondents)

FILE NO: S304/2003
DIVISION: Trial Division

DELIVERED ON: 31 March 2006

DELIVERED AT:        Rockhampton
HEARING DATES:     20-21 Mar, 2006.
JUDGE:   Dutney J

ORDERS:Further provision be made for the proper maintenance and support of the Applicant out of the estate of Peter James Garland by:
(1) Treating the will as if it bequeathed to the applicant the whole of the testator’s interest in the property at 14 Hawke Street, Emu Park free of encumbrances together with the household chattels therein as that phrase is defined in s. 34A of the Succession Act 1981; and
2)By a distribution to the Applicant the sum of $303,500 in lieu of the sum of $50,000 already provided for.

CATCHWORDS: SUCCESSION ACT – s.40 – DEFINITIONS – DEPENDANT SPOUSE – where applicant left determine life interest only – whether proper provision made for applicant – whether applicant the testator’s defacto spouse – whether applicant wholly or substantially maintained or supported.
SUCCESSION ACT – EXTENSION OF TIME – Whether appropriate case to give leave to apply out of time

WILLS – CONSTRUCTION – Whether testator’s personal diaries form part of contents of house

Re the Will of Colin Kenneth Mackenzie Supreme Court of Qld, unreported, [1990] 63 (Ryan J), cited.
Re Burgess [1984] 2 Qd. R. 379, applied.
Warren v. McKnight (1996) 40 NSWLR 390, applied.
Roy v. Sturgen (1986) 11 NSWLR 454 at 458-459, cited.
Lohse v Lewis [2004] 2 Qd. R. 648 at 665, applied.
Singer v. Berghouse (1994) 181 CLR 201, applied.

Succession Act 1981 ss 5(1), 40 and 34A

COUNSEL:Mr D Mullins SC for the Applicant

Mr D McMeekin SC for Josephine June Pearce

Mr James Peter Garland (self-represented)

SOLICITORS: South & Geldard for the Applicant
Grant & Simpson for Josephine June Pearce

Ms Barbara Summers seeks further provision from the estate of Peter James Garland deceased (“the testator”).

The basis of Ms Summers’ claim is her assertion that she was in a de facto relationship with the testator for 16 years, terminating on his death and was substantially supported by him. The testator died on 19 July 2002, following an operation for a double knee replacement.

The testator died leaving a will dated 9 July 2002. Under that will the testator left a property at 14 Hawke Street, Emu Park together with its contents (excluding antiques and collectable items) to trustees on trust to “permit and allow my friend BARBARA FAY SUMMERS to have the use occupation and enjoyment thereof during her lifetime (she paying the rates and outgoings thereon and keeping the same repaired and insured to the satisfaction of my trustees) or until she signifies that she no longer desires to live there or until she is incapable of living there or until she remarries or enters into a de facto relationship…

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 Summers v Garland

Details

AGLC: Summers v Garland [2006] QSC 85
Case: [2006] QSC 85
Decision Date: 31 March 2006

CaseChat Overview and Summary

The case of Summers v Garland [2006] QSC 085 involved Ms. Barbara Fay Summers, the applicant, seeking additional provision from the estate of Peter James Garland, who had passed away. Ms. Summers claimed she was in a de facto relationship with the deceased for 16 years and that she was substantially supported by him. The testator left a will dated 9 July 2002, which left Ms. Summers a property at 14 Hawke Street, Emu Park together with its contents, excluding antiques and collectable items, and a legacy of $50,000. The estate's value at the time of trial was between $2,239,540.39 and $2,364,540.39.

The three principal issues to be determined were: 1) whether the time should be extended for the making of this application; 2) whether Ms. Summers was a "dependant" under the Succession Act 1981; and 3) whether proper provision was made for Ms. Summers. The court found that the application should be heard out of time, that Ms. Summers and the deceased were in a de facto relationship, and that proper provision was not made for Ms. Summers.

The court found that Ms. Summers and the deceased were in a de facto relationship, as they shared a residence, a sexual relationship, and presented to third parties as a couple. The court found that the deceased substantially supported Ms. Summers by providing her with a house, a vehicle, and financial support. The provision made for Ms. Summers under the will was found to be inadequate, taking into account the nature and length of the relationship, her contribution to the preservation and improvement of the assets, and the sacrifices she made to her own capacity for financial independence by maintaining the relationship.

The court ordered that further provision be made for the proper maintenance and support of Ms. Summers out of the estate of Peter James Garland by treating the will as if it bequeathed to her the whole of the testator's interest in the property at 14 Hawke Street, Emu Park, free of encumbrances, together with the household chattels, and by distributing to her the sum of $303,500 in lieu of the sum of $50,000 presently provided for.

Orders