Charlesworth v Griffiths[2018] QDC 139

DISTRICT COURT OF QUEENSLAND

2. [2]
   This is an application by Mrs Charlesworth under s. 41(1) Succession Act 1981 (Qld) for further provision from Mr Tandy’s estate.
3. [3]
   Mr Tandy and his wife, Jeanette Tandy, were married for over 50 years. They had three daughters, the executors and the applicant. Mr Tandy died on 4 July 2017. His wife and daughters survived him. Mrs Tandy is 71 years old. The executors, Ms Griffiths and Ms Lydiard, are 34 and 31 respectively. Mrs Charlesworth is 37.
4. [4]
   Mr Tandy’s Will relevantly:

   1. (a)
      Appointed Ms Griffiths and Ms Lydiard as executors;
   2. (b)
      Left his shares in Manborough (the family trustee company) to the executors. These shares gave his executors control of the assets of the family discretionary trust (the Trust);
   3. (c)
      Gifted the residue to Mrs Tandy; and
   4. (d)
      Forgave any debts “which may be owing” by Mrs Charlesworth to him.
5. [5]
   On 23 May 2018, the respondent executors applied for the summary dismissal of the application. I dismissed that application by order made on 21 June 2018. On that day, I also delivered detailed reasons setting out the circumstances of the matter as they appeared on the affidavits and oral evidence given in the matter up to that date.
6. [6]
   Since those reasons were given, Mrs Charlesworth has delivered a further detailed affidavit which addresses further the basis of her claim for further provision and seeks to address some of the issues that arose on that hearing.
7. [7]
   Following the dismissal of the application, the parties successfully reached agreement on the terms of settlement of the application. They now seek final orders from this Court consistent with that settlement. The parties invited me to determine the application for final orders on the papers. Given the detailed consideration of the matter which has occurred already and relatively small amount in the estate, I have decided it is appropriate to do so.
8. [8]
   The parties support that making of final orders in the application in terms that in the following terms:

Further provision be made for the proper maintenance and support of the Applicant by way of provision in the sum of $135,000 in addition to the Applicant’s existing entitlement under the Will of the deceased dated 15 December 2016.

9. [9]
   The correct approach to exercising the discretion under s. 41(1) of the Act where parties are represented and there is no suggestion of improper pressure is that the Court should have regard to the agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of its discretion.^[1]
10. [10]
    Given the detailed analysis which has already been undertaken and the further evidence filed by Mrs Charlesworth which tends to support her claim and addresses to some extent the concerns expressed in my reasons for Mrs Tandy’s security of residence, it seems to me to be unnecessary to give detailed reasons on this application.
11. [11]
    Suffice it to say that I am satisfied that the Court’s jurisdiction arises to make orders for further provision on the material before it and that further provision proposed by the parties can properly be ordered.
12. [12]
    I do not consider that it is appropriate in the order for further provision to include the statement that that provision is “in addition to the Applicant’s existing entitlement under the Will of the deceased dated 15 December 2016.” The Will stands in the form executed subject to order under s. 41(1). That order requires an additional legacy to be paid. It does not expressly or by implication otherwise impact on the terms of the Will as executed. The phrase identified is unnecessary. In any event, to the extent there is any doubt about the matter (which in my view there is not), recourse to these reasons will make the position clear.
13. [13]
    Further, the parties by consent communicated to me by email agree to the setting aside of the costs orders made on the summary dismissal application and the substituting of the simple costs orders proposed in the draft order provided. I can see the sense in that course. Accordingly I make orders on the application in the following terms:

    1. Further provision be made for the proper maintenance and support of the Applicant by way of provision in the sum of $135,000;
    2. Orders 2 and 3 made 21 June 2018 be vacated;
    3. The Applicant bear her own costs of the proceeding including the costs of the application filed 23 May 2018;
    4. The Respondents’ costs of these proceedings (including costs of the application filed 23 May 2018) be paid from the Estate of the Deceased on the indemnity basis.