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Weinand v Griffin[2019] QDC 244

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Weinand v Griffin [2019] QDC 244

PARTIES:

KAROLINE WEINAND
(Applicant)
v
CRAIG ANTHONY GRIFFIN
(Respondent)

FILE NO:

D99/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT

District CourtMaroochydore

DELIVERED ON:

6 December 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

Decided without oral hearing

JUDGE:

Cash QC DCJ

ORDERS:

  1. Pursuant to s. 41(1) of the Succession Act 1981 (Qld), further provision be made for the applicant from the estate of Jon Jacobson, deceased, by reading and construing the last will of the deceased dated 24 August 2017 on the basis that clauses 6, 7 and 8 thereof were deleted and in lieu thereof that will provided as follows:

6 I give the sum of sixty thousand dollars ($60,000.00) to my son Barrie Andrew Jacobson.

7 I give devise and bequeath the residue of my estate both real and personal of whatsoever nature and wheresoever situated to my partner Karoline Weinand.

  1. There is no order as to the applicant’s costs.
  2. The respondent’s costs of the proceeding be paid out of the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT WAS LEFT WITH INSUFFICIENT PROVISION – where applicant was the testator’s partner – where applicant and testator jointly owned property – where testator left the majority of his estate to his son – where the estate is modest – whether the applicant was left without adequate resources – whether the testator failed to make adequate provision for the proper maintenance and support of the applicant.

District Court Act 1967 (Qld), s 68(1)(x)

Succession Act 1981(Qld), s 41

Uniform Civil Procedure Rules 1999 (Qld), r 489

Bartlett v Coomber [2008] NSWCA 100

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 221 CLR 191

SOLICITORS:

Rigby Lawyers for the applicant

Cartwrights Lawyers for the respondents

  1. [1]
    Jon Jacobson, the deceased, passed away on 31 December 2018. He was aged 70. At the time of his death he lived on a property at Imbil he shared with Karoline Weinand, who is the applicant. The deceased and the applicant lived together as a couple and owned the property in equal shares as tenants in common. By his will, the deceased gave the applicant the right to live at the Imbil property. In the event of the applicant no longer living at the property, the deceased’s half-share was to pass to his son, Barrie Jacobson. As well the applicant was left vehicles she values at about $55,000. The applicant claims that she has been left without adequate provision under the will. In November 2019 the interested parties attended a mediation and agreed to resolve the applicant’s claim. Subsequently the applicant applied for final orders and proposed the application be dealt with without an oral hearing. None of the exceptions in r 489 of the Uniform Civil Procedure Rules 1999 apply. I must therefore determine the matter without an oral hearing and, as I propose to make an order, give written reasons for my decision.[1]

Background

  1. [2]
    The affidavit material indicates there is considerable difference of recollection between the deponents concerning aspects of the applicant’s relationship with the deceased. I set out below only those matters that appear to be uncontroversial and which are necessary for the decision I have reached.
  2. [3]
    In September 2013 the applicant and deceased were in a relationship.  Together they purchased the property at Imbil for $390,000. They lived together on the property until the deceased passed away in December 2018. The deceased had worked as a builder but retired around 2011. The applicant continued to work in real estate. They shared expenses. In 2017 the deceased underwent spinal surgery. After a time in hospital recuperating he returned to the Imbil property.  His mobility was impaired. The extent to which the applicant assisted the deceased as a result of his impaired mobility may be in dispute. On the material it seems certain that the applicant, as the deceased’s domestic partner, helped him with matters of personal hygiene.
  3. [4]
    There is some disagreement about the value of the estate. The applicant thinks the property at Imbil is worth about $500,000. This is less than the estimate of Barrie who values the property at about $575,000. The executor of the estate obtained an appraisal that suggest a sale price of $600,000 to $620,000 is achievable. Applicant thinks the vehicles left to left to her are worth about $55,000. Barrie thinks they are worth less. Even on the most generous assessment the value of the estate would not exceed $700,000 and the applicant’s claim, given she already owns half of the property, is for considerably less.
  4. [5]
    The applicant is 56 years old. She suffers chronic obstructive pulmonary disease and obstructive sleep apnoea. Apart from her half share of the Imbil property the applicant has a property at Gympie, valued at $380,000 but subject to a $300,000 mortgage, and a modest car. The applicant also operates a property rental business but her net income in 2018 was about $20,000 and is likely to be less this year. Her only other significant assets are $13,000 in a mortgage offset account and $55,000 in superannuation.
  5. [6]
    In summary, the applicant was in a relationship with the deceased for a number of years before his death. They shared assets and expenses. She provided him care and support. The applicant’s financial position is not secure and she was not left with significant assets under the will of the deceased.

The proceedings

  1. [7]
    The application for proper maintenance and support pursuant to section 41 of the Succession Act 1981 was filed on 4 July 2019. The respondent is the solicitor appointed as executor under the will. The interested parties, including Barrie, reached agreement in early November. The effect of the agreement is that Barrie will receive $60,000 and the balance of the estate will go the applicant. On 19 November 2019 the applicant filed both a notice proposing the matter be dealt with without an oral hearing and an outline of submissions. These were served on Barrie and the respondent. Neither the respondent or Barrie have indicated an interest in being heard.

Proposal for a decision without oral hearing

  1. [8]
    None of the exceptions provided for in r 489 of the Uniform Civil Procedure Rules are relevant in these proceedings. The matter is not inappropriate for disposition on the papers. In the circumstances the proposal for decision without oral hearing should be accepted, not least of which because it will avoid the expenditure of additional legal costs from what is a relatively modest estate.

Consideration

  1. [9]
    The present application falls within the jurisdiction of the District Court as it concerns a claim for less than $750,000.[2]A grant of probate has not been made but this is not a bar to the application.[3] In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed. First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.[4]In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.[5]
  2. [10]
    The question of whether the applicant has been left without adequate provision is to be answered having regard to the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate.[6]The second question is what amount the applicant should properly receive from the estate. This requires consideration of what provision a “wise and just testator” would have made.
  3. [11]
    The applicant’s financial position is not secure. The only other person with an interest in the estate has agreed to compromise the applicant’s claim. The estate is not large and litigation would likely consume a substantial portion of it. In the present matter the evidence establishes that there is a proper basis for the compromise agreed by the parties.
  4. [12]
    For these reasons I will make an order in the terms of the draft.

Footnotes

[1]  Rule 498.

[2]District Court Act 1967, s 68(1)(x).

[3] Succession Act 1981, s 41(8).

[4]  J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.

[5] Bartlett v Coomber [2008] NSWCA 100 at [57]-[58], [72], [90]-[91].

[6] Singer v Berghouse (1994) 181 CLR 201 at 209-210.

Close

Editorial Notes

  • Published Case Name:

    Karoline Weinand v Craig Anthony Griffin

  • Shortened Case Name:

    Weinand v Griffin

  • MNC:

    [2019] QDC 244

  • Court:

    QDC

  • Judge(s):

    Cash DCJ

  • Date:

    06 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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