Winsor v Winsor

[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,…