Morris v Morris[2025] QSC 7

SUPREME COURT OF QUEENSLAND

1. [1]
   Jo-Anne Maree Morris (Jo-Anne) applied for an order making further provision for her out of the estate of the late Douglas John Morris (Douglas).  The parties seek to have the application determined without oral hearing.

Background

2. [2]
   Jo-Anne and Douglas met in 1979. At that time Douglas was divorced, with children.   They struck up a relationship and were married in 1983.  Jo-Anne has no children of her own, and the marriage produced no children.  Douglas had three children to his first marriage, only one of whom, namely Karen Lee Morris (Karen), survives Douglas. 
3. [3]
   Douglas had a home in his name through the 1980’s and 1990’s, subject to a mortgage, to which Jo-Anne made some contributions.  They had a ‘typical’ marriage.  A block of land was purchased by Douglas in his name at 16 Jodi Place, Ningi.  A house was built on the block in 2001 pursuant to a building contract naming both Douglas and Jo-Anne as owners.  Douglas and Jo-Anne lived in that home for some 23 years.  Jo-Anne still resides in the home. 
4. [4]
   Douglas died on 18 June 2023 leaving a will dated 8 March 201 (the will).
5. [5]
   The will appointed Jo-Anne and Karen as executors and trustees.  Jo-Anne has renounced her executorship.
6. [6]
   Apart from a $6,000 charitable gift, the will provides for the home and any other property and chattels to be sold and the proceeds divided equally between Jo-Anne and Karen. 
7. [7]
   Douglas’s estate is valued at approximately $1,180,000.  Most of that, some $1m, is attributed to the value of the home.
8. [8]
   Jo-Anne’s assets comprise:

   1. approximately $22,000 cash at bank;
   2. approximately $184,000 in superannuation. 
9. [9]
   Jo-Anne is presently 70 years of age and receives an aged pension of approximately $1,000 per fortnight.  She does some casual work to make ends meet.  Her expenses are about $850 per fortnight.  She has medical conditions, including one requiring surgery. 
10. [10]
    By her application, Jo-Anne asserts that the will does not provide adequately for her, specifically because the approximate $600,000 she would otherwise receive does not adequately provide her with security in a home, income sufficient to permit her to live in the style to which she is accustomed and with a fund to enable her to meet any unforeseen contingencies.
11. [11]
    The dispute was settled between Jo-Anne and Karen subject to final orders of the Court. The operative provisions of the deed of settlement adjust the division of the residuary assets between Jo-Anne and Karen such that:

    1. ownership of the home be split 85% to Jo-Anne and 15% to Karen, with Jo-Anne having a right to reside in the home for 10 years;
    2. household chattels to Jo-Anne;
    3. the balance of the estate to Karen after the payment of Jo-Anne’s legal costs fixed in the sum of $24,000.
12. [12]
    No other parties are interested in the application.  The charitable gift is to still occur.  Jo-Anne and Karen join in making joint submissions in support of the Court making final orders in accordance with the deed of settlement. 

Relevant legislative provisions and principles

13. [13]
    The application is made on the basis that it be determined without oral hearing. Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure. Rule 489 provides:

489  Proposal for decision without oral hearing

1. (1)
   A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

1. (2)
   If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—

1. (a)
   under rule 491, the court considers it inappropriate to do so; or

1. (b)
   under rule 494, the respondent requires an oral hearing; or

1. (c)
   under rule 495, the applicant abandons the request for a decision without an oral hearing; or

1. (d)
   the Chief Justice or Chief Judge suspends the operation of this rule by direction.

14. [14]
    The structure of rule 489 is that:

    1. jurisdiction to proceed without oral hearing is granted;
    2. the jurisdiction is enlivened by a proposal by an applicant;
    3. the proposal must be accepted in the absence of the features in rule 489(2)(a)-(d).
15. [15]
    Section 6(1) of the Succession Act 1981 (Qld) grants jurisdiction to this Court in relation to “all matters relating to the estate and the administration of the estate of any deceased person”. That includes jurisdiction to determine applications for family provision under Part 4.
16. [16]
    Section 41(1) of the Succession Act provides:

41 Estate of deceased person liable for maintenance

1. (1)
   If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant ...

17. [17]
    The determination of an application for provision is a two-step process. Firstly, it must be determined whether the provision made in the will for the applicant is “inadequate”.^[1]  That must be assessed as a matter of fact upon all the relevant circumstances.^[2]  If inadequacy is found, the Court progresses to the second step which is to determine what provision should be made.^[3]
18. [18]
    Here, the parties have reached an agreed position. That agreement cannot vest jurisdiction in the Court to make an order.^[4] However, where parties have agreed as to the appropriate provision and there are no other interests involved, the Court will usually make orders in the terms of the compromise between the parties.^[5]

Consideration

Application without oral hearing

19. [19]
    Rule 489(2) UCPR provides that where an application is made for a decision without an oral hearing, the Court must decide the application without oral hearing unless one of the circumstances in rr. 489(2)(a) or (b) or (c) or (d) is present.
20. [20]
    None of the circumstances prescribed by rr. 489(2)(b) or (c) or (d) apply here.
21. [21]
    The parties, both legally represented, have agreed on the outcome and jointly press the Court for the making of the order.
22. [22]
    In those circumstances, it is appropriate to deal with the application without oral hearing and so r. 489(2)(a) UCPR does not apply.
23. [23]
    I have determined the application without oral hearing.

Order for provision

24. [24]
    Although Douglas’s intention may have been to equally (and therefore he might have thought fairly) distribute his estate between the two persons with claims upon his estate (his wife of nearly 40 years and his surviving adult child), the provision made in the will for Jo-Anne is rendered inadequate because:

    1. Jo-Anne is 70 years of age;
    2. apart from her interest in the estate, she has limited assets;
    3. she is virtually retired, and can shortly be expected to be fully retired;
    4. her income is limited;
    5. she has health concerns, including one requiring surgery. 
25. [25]
    The jurisdiction to make the orders has, in my view, arisen.
26. [26]
    The proposed orders squarely meet the identified need of Jo-Anne without otherwise interfering with the administration of the estate.  Whilst I accept there is evidence of need of Karen, the compromise reflects both parties being in an improved position and makes adequate provision for each of them in the circumstances. 
27. [27]
    The orders for provision as sought should be made.
28. [28]
    The ancillary orders, including as to costs, are agreed. They also should be made.

Orders

29. [29]
    It is ordered that:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing;
2. Pursuant to rule 7 of the Uniform Civil Procedure Rules 1999 (Qld), the time for filing and hearing this application be abridged;
3. Pursuant to section 41 of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of JO-ANNE MAREE MORRIS out of the estate of DOUGLAS JOHN MORRIS deceased, by reading and construing the will of the deceased dated 8 March 2021 as if the existing clauses 3 & 4 are deleted. and replaced with the following:

1. “3.
   I give my property at 16 Jodi Close, Ningi, Queensland more fully described as lot 12 on registered plan 908870 title reference 50159929:

1. (a)
   85% to my wife Jo-Anne Maree Morris for her benefit and use absolutely;

1. (b)
   15% to my daughter Karen Lee Morris subject to the right to reside of my wife Jo-Anne Morris for a period of 10 years on the condition that Jo-Anne pays the rates, levies and taxes associated with the land and keeps the property in a good state of repair, fair wear and tear excluded.

1. 4.
   I give my household chattels to my wife Jo-Anne Maree Morris for her benefit and use absolutely.

1. 5.
   I give the rest and residue of my estate:

1. (a)
   As to $6,000 to the State Children's (Cancer) Fund Qld;

1. (b)
   As to the balance to my daughter Karen Lee Morris for her benefit and use absolutely."

4. The Respondent pay the Applicant's costs be fixed at $24,000 from the estate of the deceased.
5. The Respondent's costs of the proceeding be paid out of the estate on the indemnity basis.
6. The parties have liberty to apply in respect of these orders.