T v The Queen

[2019] QDC 220

DISTRICT COURT OF QUEENSLAND

CITATION:

T v R & Anor [2019] QDC 220

PARTIES:

T
(applicant)

v

R
(respondents)

FILE NO/S:

BD1273/2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 October, 1 and 2 November 2018

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

1.   The application is dismissed

2.   Direct that:

i.           The Applicant file any evidence and/or submissions on costs within 14 days;

ii.          The Respondents file any evidence and/or submissions on costs within 21 days.

CATCHWORDS:

WILLS AND ESTATES; FAMILY PROVISION CLAIM; SUCCESSION ACT 1981; DISENTITLEMENT; whether applicant has been left without adequate provision for his proper maintenance, education and advancement in life; whether provision ought to be made out of the estate for the applicant; where the applicant’s character and behaviour has disentitled him to any provision

Legislation:

Succession Act 1981 s41

Evidence Act 1977 ss 59, 79

Cases:

Bosch v Perpetual Trustee Co Ltd [1938] AC

Collicoat & Ors v MacMillan & Anor [1999] 3 VR 803

Dawson v Joyner [2011] QSC 385

Godsell v Wellington [2011] NSWSC 1232

Hastings v Hastings [2008] NSWSC 1310

Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134

Kay v Archbold [2008] NSWSC 254

Madden-Smith v Madden [2012] NSWSC 146

Manly v The Public Trustee of Queensland [2007] QSC 388

Mark Joseph O’Donnell v Colleen Mary Gillespie & Anor [2010] QSC 22

Meissner v The Queen (1995) 184 CLR 132

Palmer v Dolman [2005] NSWCA 361

Pontifical Society for the Propagation of the Faith v Scales (1961-2) 107 CLR 9

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin [2005] 221 CLR 191 at [10]

Wenn v Howard [1967] VR 91

Will of Gilbert (1946) 46 SRNSW 318

COUNSEL:

I Klevansky for the applicant
M J Liddy for the respondents

SOLICITORS:

McDuff & Guilfoyle, Lawyers for the applicant
Caboolture Law for the respondents

1. On 10 October 2016, TBT died aged 77 years.  He left a modest estate comprising a house in Woodford, a Ford motor vehicle valued at $5,520 and savings of $25,503.78.  At the time of his death he was divorced from his former wife, LCT.  He was survived by two children, his son, the applicant in these proceedings, GWG, his daughter, LRM, and four grandchildren.  One of the grandchildren, BJT is the son of the applicant, GWG, the other three being the children of LRM.

1. The testator made no provision for either of his children in his will.  He left to his grandson, BJT, specific gifts of his motor vehicle and the funds in his bank accounts.  He willed the residual estate to his three granddaughters in equal shares.

1. The applicant applies pursuant to s 41 of the Succession Act1981 that provision be made out of the estate for him.

Relevant legislative provisions

1. Section 41 of the Succession Act provides, insofar as it is relevant:

“           41       Estate of deceased person liable for maintenance

(1)If any person (the deceased person) dies…