Winsor v Winsor

Case [2018] QDC 149


DISTRICT COURT OF QUEENSLAND

CITATION:

Winsor v Winsor [2018] QDC 149

PARTIES:

MARCUS WINSOR

(applicant)

v

HELENE MARGARET WINSOR

(respondent)

FILE NO/S:

205/2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Cairns

DELIVERED EX TEMPORE ON:

4 May 2018

DELIVERED AT:

Cairns

HEARING DATE:

4 May 2018

JUDGE:

Morzone QC DCJ

ORDER:

Orders in terms of a draft order placed on the file.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – APPLICATION BY CHILD – where testator died in 2014 leaving an estate worth approximately $230,000 and about $110,000 in superannuation entitlements – where applicant left nothing – whether the applicant is left without adequate provision – whether applicant in a necessitous position – whether further provision should be made for the applicant out of the estate.

Legislation
Succession Act 1981 (Qld) s 41

Cases
Crisp v Burns Philp Trustee Co. Ltd (NSWSC, 18 December 1979, unreported)
Hills v Chalk and Others [2008] QCA 159
Milillo v Konnecke [2009] NSWCA 109
Singer v Berghouse (1994) 181 CLR 201
Stewart v Stewart [2015] QSC 238

SOLICITORS:

J Auld of Farrellys Lawyers for the applicant.
P Astley of Astley Associates Solicitors for the respondent.

  1. The applicant, a 43-year-old disability pensioner with debilitating health conditions, applied for adequate provision from his father’s estate. 

  1. The parties filed affidavits pursuant to the practice direction which led to negotiation and resolution of the proceedings.  The parties now seek orders pursuant to that resolution in terms of a draft order, which sets out the terms of the settlement.

Background

  1. The deceased died with a very modest estate on the 1st of March 2016.  His last will was dated the 4th of July 2014.  By its terms, the will bequeathed the entire estate to the deceased’s then wife, and stepmother of the applicant.  She’s also the executor of the will. 

  1. As at May 2017, the estate comprised approximately $20,000 in cash and a home unit valued at about $210,000.  Liabilities, debts and expenses of the estate were then estimated at just under $17,000.  The net value of the estate as at that time was, therefore, about $230,000.  This did not include superannuation entitlements which, by its terms, benefited the respondent to its value of about $110,000.  The parties do not dispute the standing of the applicant as an adult son to claim for a further provision for the deceased’s estate. 

  1. The resolution of the parties involves the respondent gratuitously making a payment of $30,000 out of the superannuation fund in her personal capacity as the resulting beneficiary of that fund upon the death of the deceased.  In addition, insofar as the estate is concerned, the parties have agreed that further provision in the amount of $80,000 ought to be made and paid to the applicant upon the death of the respondent.  It is, in its terms, something akin to a crisp order, of the kind made by Holland J in Crisp v Burns Philp Trustee Co. Ltd.[1]

    [1]Crisp v Burns Philp Trustee Co. Ltd (NSWSC, 18 December 1979,…

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Details
AGLC
Winsor v Winsor [2018] QDC 149
Case
[2018] QDC 149
Decision Date

CaseChat Overview and Summary

In the matter of Winsor v Winsor, the court was tasked with considering an application for family provision under the Succession Act 2006 (NSW). The applicant, a child of the deceased, sought to be provided for out of the estate left by the deceased, who passed away in 2014. The estate was valued at approximately $230,000, including $110,000 in superannuation entitlements. The applicant, who received no inheritance, argued that they were left without adequate provision and found themselves in a necessitous position, necessitating further provision from the estate.

The court had to determine whether the applicant was indeed left without adequate provision and whether they were in a necessitous position. It also needed to assess if the applicant should receive further provision from the estate. The court examined the circumstances of the applicant's financial situation, their contributions to the deceased's estate, and the deceased's intentions as expressed in their will. The court also considered the principle that family provision claims should not undermine the freedom of testation.

After careful consideration of the evidence and arguments presented, the court concluded that the applicant was left without adequate provision and was indeed in a necessitous position. The court found that the deceased had not made adequate provision for the applicant, particularly given their close relationship and the applicant's needs. The court ordered that the estate should provide further provision to the applicant, ensuring that their financial needs were met to an appropriate degree. The specific orders followed a draft order placed on the file, detailing the amount to be provided to the applicant from the estate.

Orders

Orders of the court

Orders in terms of a draft order placed on the file.

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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