Lawsuits motivated by ill-will or emotions often end in tears as is demonstrated in the case of this family provision applicant.

Desmond Guy died in July 2020 aged 95 without a will and survived by 6 children, a daughter from his first marriage and five children from his second marriage.

iStock 1434333253His wife and one child had died before him without any children of their own.

His estate was mainly comprised by real estate in Calliope, near Gladstone.  Under the laws of intestacy, his assets fell to be distributed equally between the 6 surviving children.

In the absence of anyone else having applied to administer the estate and its assets in limbo for more than a year, Rosemary – Desmond’s daughter from his first marriage – applied for letters of administration which were granted in August 2021.

The significant hostility among the siblings likely influenced Scott – one of Rosemary’s half brothers – to file a family provision application in October, seeking more from the estate than his one sixth share.

His brother Lloyd joined in those proceedings in March 2022.

Their family provision application eventually came before the District Court in Rockhampton in September 2023.

At the start of the first day of the trial, Scott withdrew his claim likely based on some firm advice from his lawyers who were given leave by the court to withdraw as his legal representatives.

As it turned out, Scott had withdrawn $45,000 from his father’s bank account after his death. Such conduct was – more likely than not – to reflect poorly on the court’s assessment of his character.

Lloyd – who had in the lead up to the hearing abused and threatened Rosemary and texted a message ‘1 shot 1 kill.  I was a cadet’ – decided to proceed notwithstanding his lawyers had also withdrawn, leaving him to represent himself.

After a one day trial in which he was accorded the customary accommodation to account for the unfamiliarity of DIY litigants with court procedures and rules, Judge Jeffrey Clarke ruled Lloyd to have been an unreliable witness.

Noting that much of his evidence was contradicted by independent accounts of the family circumstances, Lloyd’s claim was dismissed on multiple grounds.

First, it had not been started within the specified 9 months of the date Desmond’s death.

Second, Lloyd failed to establish he had any superior need to that of his siblings that might justify further provision from the estate.

The judge also granted the estate’s application that Lloyd pay some of its costs of the dispute.

He did so because  Lloyd’s prospects of success were – in his view – to have been “very poor, to the point of being futile” and because he had “obstructed [Rosemary’s]’s duty to administer the estate” including by thwarting her attempts to enter the properties to conduct an inventory of estate chattels, even with police assistance.

After allowing for written submissions from the parties as to liability for the estate’s legal costs, Judge Clarke ruled Lloyd’s claim to have been “completely unmeritorious”.

He ordered that part thereof – the sum of $42,000 – be deducted from Lloyd’s entitlements in the estate to go towards its legal costs of defending the doomed-from-the-start claim.

Although not mentioned in the judgment, the estate will also likely deduct the $45,000 removed by Scott from his father’s bank account, from his share of the estate.

Day v Peake [2023] QDC 178 Clarke DCJ 256 September 2023

Day v Peake [No 2] [2023] QDC 200 Clarke DCJ, 3 November 2023