Acton, Re; Re Acton, Acton & Acton [1993] QSC 302

( IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON Rockhampton District Registry Before The Hon. Justice Demack [Re: Acton] O.S. No. 26 of 1993 IN THE MATTER of the the 11 Succession Act 1981 (as amended) 11 - and - IN T.HE MATTER of the Will of THOMAS WILLIAM ACTON Deceased - and - =I~N--~T~H~E~~M~A~T~T~E=R~ of an application by GRAEME WILLIAM ACTON, EVAN RUSSELL ACTON and =A=L=A~N-=J=O=H~N-=A=C=T=O=N REASONS FOR JUDGMENT - DEMACK J Judgment delivered 08/09/93 CATCHWORDS: Testator's Family Maintenance - Return Originatinq Summons - Whether Applicants Affidavits Prima Facie Case Further Dependent Seeking toApplication. Date ofDisclose Join in Counsel: Mr Mellick for Applicant/Executor Mr Wilson Mr Williams Solicitors: Rees R & Sydney Jones Sly & Weigall Cannan & Peterson Hearing Date/s: 06/09/93 for Respondent for Third Party for Applicant/Executor for Respondent -- 1 of 6 -- ( IN THE SUPREME COURT OR QUEENSLAND ROCKHAMPTON O.S. No 26 of 1993 IN THE MATTER of the "Succession Act 1981 (as amended)" - and - IN THE MATTER of the Will of THOMAS WILLIAM ACTON Deceased - and - IN THE MATTER of an application by GRAEME WILLIAM ACTON, EVAN RUSSELL ACTON and ALAN JOHN ACTON. JUDGMENT - DEMACK J. DELIVERED the 8th day of September 1993. Thomas William Acton died on 12 November 1992. He is survived by his widow, Valma, his four sons, Robert, Graeme, Evan and Alan and his daughter, Elizabeth. His last will and testament, in respect of which a grant of probate has been obtained, is dated 20 March, 1990. By that Will, Graeme, Evan and Alan are appointed executors and trustees of the estate, and the grant of probate to them was sealed on 12 May 1993. They now apply for orders that adequate provision be made for their proper maintenance and support. On the return date of the originating summons, the matter was adjourned until 6 September 1993. When the matter came on on 6 September, Mr A. M. Wilson, who appeared for Robert, submitted that the application should be dismissed because the affidavits filed by the applicants did not show a prima facie case that they were entitled to bring the application. There is some merit in this submission, except for one -- 2 of 6 -- 2 fact. In the ordinary course of things, I shall hear the application so I do not intend at this time to discuss the matter in detail. The decisive fact, in my opinion, is Elizabeth's position under the Will. The issues can be stated briefly, and in neutral terms. The testator, Graeme, Evan and Alan carried on a substantial grazing partnership called Acton Land and Cattle Co., apparently in equal shares. The partnership owned two grazing properties and about 36,000 head of cattle. The testator owned another two grazing properties upon which some of the partnership cattle were depastured. By his Will, he devised ! (~ ' one of those properties, "Werribee", to Robert. The applicants claim that they made a substantial contribution to building up the estate, and assert that Robert made no contribution. They also claim that "Werribee" is significant in the overall conduct of the partnership and that its value has been enhanced by the their efforts and resources. The estate is estimated to be worth between $5 million and $8.7 million. The Will contains some introductory paragraphs which are not dispositive. They indicate the testator's hopes. They begin with the words; "The intention I have in making this Will is to make adequate provision for my daughter Elizabeth Anne Acton" . The only provision for Elizabeth is in respect of the proceeds of policies of insurance which are bequeathed to Valma, with the proviso that, if she pre-deceased the testator, the proceeds go to Elizabeth. Valma did not pre- decease the testator. Elizabeth was represented on 6 September and it was indicated that she intended to join in the application. Mr -- 3 of 6 -- 3 Wilson said that Robert did not oppose the extending of time to allow Elizabeth to apply. Nonetheless Mr Wilson wanted to close the door on the other applicants. It seems to me that this is impractical. The details of the estate are not presently available, and the financial positions of the parties are not revealed. At this time, the matter should proceed, because Elizabeth's application requires full disclosure by all parties. Mr Mellick, who appeared for the applicants produced a draft set of orders. ones:- Mr Wilson asked for three additional A. That the executors keep records of stock depastured on "Werribee" and advise the respondent of the details of such records within seven days of any request. B. That the respondent or an agent nominated by him in writing be entitled to inspect Werribee from time to time on seven days notice. C. General discovery. The only evidence before me about "Werribee" is that it has an area of 12,700 acres and a carrying capacity of 1500 head of cattle. There is no indication how it is worked. In those circumstances it seems to me that an order in terms of "A" would be unreasonable. Certainly, records need to be kept, but unlimited access on 7 days notice would be excessive. In deed, if the right to inspect is also given, the respondent will know if "Werribee" is being mismanaged. I will make the following orders:- 1 . Any further affidavits on behalf of the applicants be filed and copies thereof served on the solicitors -- 4 of 6 -- '--- 4 for the respondent Robert Thomas Acton and the solicitors for Elizabeth Anne Acton on or before the sixth day of November, 1993. 2. The applicants cause copies of the Originating Summons herein, of all affidavits presently filed herein and of this order, together with a letter in compliance with paragraph 7 of Practice Direction No. 7 of 1982, to be served on Valma Georgina Acton by sending the same by prepaid registered mail addressed to her on or before the twentieth day of September 1993. The further affidavits served on Robe~t Thomas Acton and Elizabeth Anne.Acton shall also be served on Valma Georgina Acton on or before 6 November 1993. 3. Any affidavits on behalf of Elizabeth Anne Acton and/or Valma Georgina Acton be filed and copies thereof served by such persons on the solicitors for the applicants and on the solicitors for the respondent Robert Thomas Acton on or before the tenth day of December, 1993. 4. Any affidavits on behalf of the respondent be filed and copies thereof be served on or before the twenty-fourth day of December, 1993, on the solicitors for the applicants and on any other person who shall have filed affidavits. 5. Copies of any affidavits filed and served in accordance with paragraph 3 of this order be served by the solicitors for the applicants on or before the seventeenth day of December, 1993, upon any other person who shall have filed affidavits -- 5 of 6 -- 5 pursuant to the said paragraph. 6. Any further affidavits be filed and copies thereof served by the party filing the same on the solicitors for the applicants and on the solicitors for the respondent and on all other parties who shall have filed affidavits on or before the twenty- first day of January, 1994. 7. The executors shall keep records of stock depastured on "Werribee" and shall advise the solicitors for the respondent of such numbers on 1 December 1993, and quarterly thereafter. 8. The respondent or an agent nominated by him in writing shall be entitled to inspect "Werribee" once in each period of three months calculated from the date of this order, upon the giving of seven days' notice. 9. All parties shall made discovery on oath of the documents which are or have been in the possession or power, relating to the matters in question in this application on or before the twenty-eighth day of January 1994. 1 0. Any party requiring another party to produce any document for . inspection shall give notice to that .. effect on or before the eleventh day of February 1994. 11. The application be adjourned to the callover list. 12. Any party be at liberty to apply on 5 days' notice. 13. The costs of and incidental to the application and to this order be reserved to the trial Judge. -- 6 of 6 --