Page v Gamer [2013] QDC 47 (25 February 2013)

Last Updated: 19 March 2013

[2013] QDC 47

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3507 of 2012

MICHAEL ARTHUR GORDON PAGE	Applicant
and
ALWYN JAMES and JANETTE GAMER	Respondents

BRISBANE

..DATE 25/02/2013

ORDER

CATCHWORDS

Succession Act 1981 (QLD) - s41 - Court asked to sanction compromise reached in mediation of adult stepson’s application for increased provision - Whether court has jurisdiction.

HIS HONOUR: The court makes an order in terms of the initialled draft. It makes further provision for the applicant from the estate of his step-mother. It does so by increasing a five per cent interest in the estate to $160,000 a pecuniary legacy. That represents a doubling or perhaps rather more of what he would otherwise receive; some of the estate assets are of a kind that can be difficult to value.

The order is made at the expense of individuals who receive gifts under the Will and a number of charities that have their own[ ] [ ]. The affidavit of one of the respondent executors satisfies the court that all of those who stand to be affected by the order have been apprised of what's occurring and afforded the opportunity they ought to have to be heard about it.

The applicant in his affidavit, which I had read in preparation for the hearing although Mr Morgan didn't read it in the event this morning, indicates that he would have liked to exonerate one or more of the charities that the Testatrix selected.

An interesting question which occurred to me was why it was necessary to invoke the jurisdiction of a court in a matter that the parties are to be congratulated for resolving amicably to avoid a contested hearing. A resolution was reached at a mediation conducted by Mr Whitney.

Ms Brewer explains convincingly that unless a conclusion is achieved in contexts like the present there is always the possibility, which in her experience has eventuated a few times, that a claimant who has been paid out brings an application to the court by way of a second bite at the cherry. That's presumably impossible once the court has made an order even if the circumstances of the applicant were to change

If the court’s jurisdiction and assistance are to be invoked, the parties must show the court that there is jurisdiction, in other words, in terms of section 41(1) of the Succession Act 1981 that adequate provision is not made from the estate for the proper maintenance and support of the deceased person's child, here step-child.

The applicant's affidavit, which there is no reason to doubt, establishes the jurisdictional foundation. He tells of certain difficulties in the relationship with his father which, among other things, restricted the educational and like attainments of the applicant. Indeed, he says that he was discouraged by the deceased as well from undertaking a course which would lead to a professional qualification that in the event would greatly have enhanced his income earning potential in the trade which he pursues. The impending loss of the services of a man he employs to provide the services by way of certification and the like that are involved makes it an obviously suitable course for him to undertake the study to get the requisite qualification; that's going to take four years as I understand and the parties accept what the cost of it is likely to be. The applicant has his own dependant family.

The material indicates that the applicant was cut out of his father's Will. Indeed, this is his second challenge to parental dispositions. The earlier one - in his late father's estate - resulted in a benefit being achieved there by way of a residence being made available for the applicant and his family. Interestingly the deceased was of the view that, even so, the applicant came away with much less than an appropriate share.

He is an able-bodied adult male but, in the circumstances of a relatively large estate and a family who are all doing well, the standards that ought to be expected in respect of family provision to apply are well in excess of mean standards. The order that's proposed is plainly appropriate and I'm pleased to make it.

That cover everything?

MR MORGAN: Thank you, your Honour, yes.

MS BREWER: Your Honour, can I just bring one small matter to your attention?

HIS HONOUR: Yes.

MS BREWER: I'm sorry, I just fear I may have inadvertently misled you before. The affidavit of Ms Gamer does not exhibit the initial letters to all of the beneficiaries under the practice direction. It's a later letter from my solicitors to all of the beneficiaries referring to the previous letter where they sent that material and saying, "We’ve now filed our affidavit. Is there anything you would like us to bring to the attention of the Court? This is what's going to happen from now on in" and sort of filling them in on where it's at so - I don't have any concerns at all that all of the beneficiaries aren't aware of this and they all know what's happened but I just wanted to correct your Honour because I did say that that affidavit was exhibiting the letters that served them with the initial material and that's not quite right.

HIS HONOUR: I'd appreciate having Ms Brewer's latest contribution transcribed and I confirm that the court is happy to act on her assurance that the interests of the beneficiaries under the Will which are modified by today's order have been treated appropriately.

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