Trim v. Day

[2007] QDC 314

DISTRICT COURT OF QUEENSLAND

CITATION:

Trim v Day [2007] QDC 314

PARTIES:

ALISON JUNE TRIM

Applicant

V

KAY DAY

Defendant

FILE NO/S:

BD4106/03

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2007

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs fixed at $2,000 to be paid by the respondent personally.

CATCHWORDS:

TESTATORS FAMILY MAINTENANCE – Application of De Facto Spouse – whether appropriate to strike out

Higgins v Higgins [2005] QSC 110 – distinguished

COUNSEL:

S. D. Anderson for the applicant

D. Kelly and S. M. McNeil for the respondent

SOLICITORS:

1. This is an application to strike out an application under part 4 of the Succession Act 1981. The originating application was filed as long ago as December 2003 and it does not appear that matters have been advanced very far since then, although it may be that much of the delay has been attributable to attempts on the part of the respondent executrix to locate a daughter of the deceased for the purpose of giving notice of the application. That notice apparently was finally given in late 2006, and that daughter has not responded to the notice, so presumably she is not interested in applying.

1. The deceased died on the 13th of June 2003, and under his will, which had been made in 1991, left his entire estate to his nephew, the son of the executrix.  That estate seems to have consisted principally of his interest, the deceased's interest, in a property which was owned together with the applicant in proportions of 80 percent and 20 percent. 

1. The property has subsequently been sold, and together with a small amount in a bank account and some chattels, has produced a gross estate of about $132,000.  There will be administration costs and I expect costs associated with this litigation to come out of that, so it is a small estate.

1. The applicant is a person entitled to apply as a spouse, having been living in a de facto relationship with the deceased for at least five years prior to the date of his death, terminating on his death.  She was the owner at the time of 20 percent of the property in which they were both living, and she has received her share of the sale proceeds of that property.  She also owns another property.  She has been in employment for a long time and that employment preceded, continued during the de facto relationship, and is continuing.

1. The situation is that the respondent has now applied to strike out the application on the ground that the applicant cannot succeed because the applicant cannot show that there has been a failure to provide proper support, which is the first step in an application of this nature.  Unless the Court can be satisfied that there has been a failure to provide proper support to the applicant in the will of the deceased, then no order can be made under section 41.