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 respondentsSOLICITORS:
McDuff & Guilfoyle, Lawyers for the applicant
Caboolture Law for the respondents
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.
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.
The applicant applies pursuant to s 41 of the Succession Act1981 that provision be made out of the estate for him.
Relevant legislative provisions
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…
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- AGLC
- T v The Queen [2019] QDC 220
- Case
- [2019] QDC 220
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the applicant had been left without adequate provision for his proper maintenance, education and advancement in life. The court also needed to determine whether the applicant’s character and behaviour had disentitled him to any provision from the estate. The court considered whether the applicant’s circumstances justified making a provision from the estate, notwithstanding the explicit provisions made for him in the will.
The court concluded that the applicant had not been left without adequate provision for his proper maintenance, education and advancement in life. It was found that the applicant’s character and behaviour had disentitled him to any provision from the estate. The court relied on precedents such as Bosch v Perpetual Trustee Co Ltd, Collicoat & Ors v MacMillan & Anor, and Madden-Smith v Madden to support its conclusion. The application was dismissed, and the court directed that the applicant and respondents file evidence and submissions on costs within specified timeframes.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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