Waters v Odell

Case [2023] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:              Waters v Odell [2023] QDC 44 PARTIES:                 PHILPPA ANNE WATERS

(Applicant)

v

CHRISTINE ODELL (as executor of the estate of Anne Benn deceased)

(Respondent)

FILE NO:                   BD No 1017 of 2021

DIVISION:               Civil

PROCEEDING:        Originating Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:     14 June 2023

DELIVERED AT:     Brisbane

HEARING DATES:

7 – 9 February 2023

JUDGE:  Porter KC DCJ

ORDER:

That further provision be made for the applicant from the estate of Anne Benn deceased in the amount of $280,000.

CATCHWORDS: SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVSISION – CLAIMS BY CHILDREN – where the

deceased had three children including the applicant and the respondent – where the deceased purchased a home for the applicant in 1995 and allowed the applicant to live in the home rent free until 2019 – where the respondent acted as the enduring power of attorney and primary support person for the deceased – where the respondent had significant control over the finances and life of the deceased – where the applicant was evicted from the home on only six days’ notice – where the respondent caused transactions to be made using the deceased’s funds – where a number of those transactions were made to the benefit of the respondent – where the deceased’s

will provided the applicant with a legacy of $20,000, and otherwise distributed equally the residuary of the estate between the respondent and the deceased’s other child – where the applicant applies for adequate provision for their proper maintenance and support under Succession Act 1981 (Qld) s 41 – whether the will of the deceased made adequate provision for the applicant and, if not, what adequate provision would be in the circumstance

Legislation

Criminal Code 1899 (Qld) s 70

District Court of Queensland Act 1967 (Qld) Enduring Powers of Attorney Act 1998 (Qld) s 87 Succession Act 1981 (Qld) s 6, 41

Trusts Act 1973 (Qld)

Uniform Civil Procedure Rules 1999 r 700A

Cases

Australian Pipeline Limited v Alinta Limited [2007] FCAFC 55

Fenton-Anderson v Power (No 2) [2020] QDC 294

Gersbach v Blake [2011] NSWSC 368

Morgan v Darveniza [2014] QSC 37 [16(b)] – [16(c]

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Re McGregor Deceased [1956] St R Qld 596

Tulloch Brae Pty Ltd v Environmental Protection Equipment Pty Ltd [2022] QCA 97

Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434

Secondary Materials

A A Preece, Lee’s Manual of Succession Law (Lawbook Co, 8th ed, 2019)

G E Dal Pont, Law of Sucession (Lexis Nexis Butterworths, 3rd ed, 2021) [P.8]

John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5th, 2017)

B T Porter, ‘The Jurisdiction of the District Court in Trust and Succession’ (Speech, STEP Queensland Lunchtime Seminar, 21 September 2021).

COUNSEL:              P Hackett for the Applicant

C Brewer and…

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Waters v Odell [2023] QDC 44
Case
[2023] QDC 44
Decision Date

CaseChat Overview and Summary

The matter of Waters v Odell arose in the Queensland Supreme Court, where the applicant, Waters, sought to challenge the adequacy of the provisions made for them under the will of their deceased parent, Anne Benn. The deceased had three children, one of whom was the applicant. Benn had purchased a home for the applicant in 1995 and allowed them to live there rent-free until her death in 2019. The respondent, Odell, was the deceased's other child and had acted as her enduring power of attorney and primary support person, exercising significant control over her finances and life. Upon Benn's death, the applicant was evicted from the home with only six days’ notice, and numerous transactions were made using Benn’s funds, some benefiting Odell.

The primary legal issue before the court was whether the deceased's will had made adequate provision for the applicant's proper maintenance and support under the Succession Act 1981 (Qld). The court had to consider the circumstances of the applicant, including their eviction and the respondent's control over the deceased's finances, in determining if the will's provisions were adequate. The applicant argued that the legacy of $20,000 and the equal distribution of the residuary estate between the respondent and the other child were insufficient to meet their needs. The respondent contended that the provisions were adequate and in line with the deceased’s wishes.

The court examined the overall circumstances of the applicant and the provisions made under the will. It noted that the applicant had been living in the deceased’s home rent-free for many years, which contributed to their expectation of continued residence and security. The court found that the eviction on short notice and the respondent's control over the deceased's finances were significant factors that undermined the applicant's financial stability. The court concluded that the $20,000 legacy and the equal division of the residuary estate were inadequate to provide for the applicant's proper maintenance and support. In making its decision, the court considered the applicant's need for stability and security, and the respondent’s actions that exacerbated these needs.

In its final orders, the court ruled that further provision be made for the applicant from the estate of Anne Benn in the amount of $280,000. This sum was deemed necessary to provide the applicant with adequate and proper maintenance and support, considering the circumstances of the case.

Orders

Orders of the court

That further provision be made for the applicant from the estate of Anne Benn deceased in the amount of $280,000.

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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