SUPREME COURT OF QUEENSLAND
CITATION:
Underwood v Underwood [2008] QSC 159
PARTIES:
PETA CHANEL UNDERWOOD
(First Applicant)
DEREK JOHN UNDERWOOD
(Second Applicant)
SCOTT ANDREW UNDERWOOD
(Third Applicant)
ANNETTE MARIE SHEPPARD
(Fourth Applicant)
v
LOUIS UNDERWOOD AND MARK WEDRAT in their capacity as executors of the estate of the late
PETER CHARLES UNDERWOOD
(First Respondent)
GREGORY PETER UNDERWOOD
(Second Respondent)FILE NO/S:
55 of 2007
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court, Cairns
DELIVERED ON:
15 July 2008
DELIVERED AT:
Cairns
HEARING DATE:
4,5,6 February 2008; 20 May 2008
JUDGE:
Jones J
ORDER:
1. Direct that these reasons be published and delivered to the parties.
2. Adjourn the further consideration of how the further provisions for Peta Underwood and Annette Sheppard may be implemented.
3. Adjourn for further consideration the question of costs.
4. Direct each party seeking an order for costs to provide to each other party an estimate of such costs.CATCHWORDS:
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF SURVIVING PARTNER - APPLICATION BY CHILDREN – Adult children – General principles
Succession Act 1981
Bladwell v Davis [2004] NSWCA 170
Bosch v Perpetual Trustees Co Ltd [1938] AC 463, applied
Brown v Cordingley [2007] NSWSC 1338
Coates v National Trustees and Executors Agency Co Ltd (1956) 95 CLR 494, applied
Kozak v Matthews [2007] QCA 296
Manly v Public Trustee of Queensland [2007] QSC 388, considered
Marshall v Public Trustee [2006] NSWSC 402
McGrath v Eves [2005] NSWSC 1006, considered
Singer v Berghouse (1994) 181 CLR 201, applied
Vigolo v Bostin [2005] 221 CLR 191
Wheatley v Wheatley [2006] NSWCA 262
White & Barron (1980) 144 CLR 431COUNSEL:
Mr M A Jonsson for the first applicant
Mr G J Houston for the second applicant
Ms J Willis for the third applicant
Mr D P Morzone for the fourth applicant
Mr A P Collins for the first and second respondents
SOLICITORS:
Gadens Lawyers for the first applicant
Lehmann Featherstone for the second applicant
Miller Bou-Samra Lawyers for the third applicant
Miller Harris for the fourth applicant
Williams Graham & Carman for the first and second respondents
Before me are four applications pursuant to s 41 of the Succession Act 1981 (“the Act”) each seeking adequate provision for maintenance and support from the estate of Peter Charles Underwood who died on 9 May 2006. The first, second and third applicants are the lawful children of the deceased. The fourth applicant was his de facto spouse who lived with him during the period July 2003 to his death. All parties acknowledge that the fourth respondent falls within the definition of “spouse” for the purpose of the Act. For convenience the claimants will be referred to by their given names.
The first respondents are the executors of the deceased’s will and trustees of his estate. They contend that in each instance adequate…
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- AGLC
- Underwood v Underwood [2008] QSC 159
- Case
- [2008] QSC 159
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Peta had been left with sufficient provision under the Family Provision Act. This involved assessing the nature and extent of the relationship between Peta and the deceased, the contributions Peta made to the relationship, and the reasonable financial needs of Peta, contrasted against the provisions made in the will. Additionally, the court had to consider the competing claims of the deceased's adult children and how their interests balanced with Peta's claim. The principles guiding the court's decision included the equitable distribution of the estate and the need to ensure that the deceased's intentions, as far as ascertainable, were respected.
The court found that Peta had been left with insufficient provision under the Family Provision Act. The relationship between Peta and the deceased was deemed to be akin to a de facto relationship, entitling Peta to make a claim under the Act. The court considered Peta's contributions to the relationship, both financial and non-financial, and determined that she had a reasonable expectation of receiving adequate provision from the estate. The court also took into account the significant disparity between what Peta had been provided during the relationship and what she was left in the will. The claims of the deceased's adult children were considered but ultimately did not outweigh Peta's claim, given the circumstances. The court thus granted Peta's application, finding that she was not provided for sufficiently.
The final orders included directing the publication and delivery of the reasons for the decision to the parties involved. The court adjourned further consideration of how provisions for Peta and Annette Sheppard could be implemented, as well as the question of costs. Parties seeking an order for costs were directed to provide each other party with an estimate of such costs.
Orders
Orders of the court
1. Direct that these reasons be published and delivered to the parties.
2. Adjourn the further consideration of how the further provisions for Peta Underwood and Annette Sheppard may be implemented.
3. Adjourn for further consideration the question of costs.
4. Direct each party seeking an order for costs to provide to each other party an estimate of such costs.
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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