Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

The Doney case: summary dismissal of unmeritorious cases in estate disputes – the deadly sin of greed


Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland on Radio 4CRB for ‘Law Talks’ to discuss consequences that can arise when someone gets too greedy and tries to get a larger share of an estate after a loved one passes away in circumstances where they are not entitled to more. What can the executors do to defend these claims?

In the intricate landscape of legal proceedings, summary dismissals emerge as a valuable tool for streamlining and shaping the trajectory of meritless cases.

But what is a summary dismissal? It’s a prompt and early termination of a legal case without needing a full trial or hearing. This occurs when a judge determines that there is no genuine issue to be tried or that the case lacks legal merit. Summary dismissals are seldom successful because, in most instances, individuals who may be tempted to bring frivolous claims devoid of merit will typically receive cautionary advice from a qualified lawyer discouraging such pursuits and stopping them in their tracks.

However, there are still instances where individuals choose to proceed with making a family provision claim for further provision from an estate, driven perhaps by greed or entitlement, despite the potential consequences they may face.

In this article, we look at the dynamics of these cases, exploring the consequences and the court’s perspective when someone displays avaricious tendencies in the context of a deceased estate. Additionally, we provide an overview of a recent case in which a client of Attwood Marshall Lawyers obtained a summary dismissal of the provision claim with legal costs awarded in our client’s favour. In this instance, the deceased’s spouse sought further provision from her late husband’s estate despite her and her children already receiving the lion’s share.

Doney v Doney

Note* Attwood Marshall Lawyers has obtained consent from their client to discuss and write about his matter.

Mr Mark Anthony Kirk Doney died in a hospital in Singapore in November 2019 after being involved in a road accident. 

He did not have a Will when he died, which meant he died intestate, leaving a reasonably modest estate in Queensland behind. The estate had an estimated value of just over $1 million.

The deceased was survived by his spouse, Grace Doney, to whom he had been married for around ten years.

Seven children also survived him: four children from a previous marriage and three minor children he had with Grace.

Under the rules of intestacy, Grace and all the children had an interest in the deceased’s estate.

The rules of intestacy slightly differ between each state and territory in Australia, however under section 35 and schedule 2 of the Succession Act 1981 (Qld), the deceased’s estate in Queensland was to be distributed as follows:

  1. The sum of $150,000 and household chattels to Grace;
  2. 1/3rd share of the residuary estate to Grace;
  3. 2/3rd share of the residuary estate to be shared between the deceased’s seven children.

Under this formula, Grace and her three minor children were entitled to receive more than 70 per cent of the net estate in the sum of approximately $759,761.57.

The four other adult children were entitled to share the balance of the estate in the sum of approximately $240,000, roughly $60,000 each.

Grace was not satisfied with her entitlement under the above formula. On 13 August 2020, Grace filed an Originating Application in the District Court of Queensland seeking further provision from the deceased’s estate for her proper maintenance and support.

How does a court determine a Family Provision Application

The determination of a family provision application involves a two-stage test.

Stage 1 (commonly referred as the jurisdictional question): The court will determine whether the Applicant has been left without adequate provision from the estate for their proper maintenance and support (see Singer v Berghouse (1994) 181 CLR 201);

Stage 2: If the first question is answered in the affirmative, the court will look at what provision ought to be made from the estate.

In determining what provision ought to be made, a court is guided by principles enunciated in the matter of Re Fulop (1987) 8 NSWLR 679 (applied in Parker v Parker [2006] NSWSC 473 at [6]).

For more information about the determination of a Family Provision Application – click here.

Further provision for Grace – was it warranted?

In our view, Grace’s claim:

  1. failed to meet the jurisdictional threshold (Stage 1),
  2. had no real prospects of success, and
  3. was doomed to fail.  

This led us to question the necessity of pursuing the claim. Disputes over a deceased estate can swiftly accrue significant legal fees, ultimately depleting the estate’s value.  

This underscores the importance of seeking advice from an estate litigation lawyer as soon as possible. Such advice is crucial for evaluating the viability of a family provision claim and understanding the potential impact it may have on the estate and the benefits received by other beneficiaries.

To curtail the escalating legal fees associated with defending a claim with no merit, a strategic decision was made by our client to file an application in court seeking orders to summarily dismiss Grace’s Family Provision Application with costs.  

Despite Grace qualifying as an eligible person to bring a family provision claim as the deceased’s spouse, the fact that she was entitled to the lion’s share of the estate and the competing needs of the other children indicated that her claim was meritorious.

In fact, another eligible person, one of the deceased’s children, faced significant financial challenges. Despite being eligible to seek further provision, the son refrained from pursuing a family provision claim. His rationale was clear – given the modest nature of the estate, the legal fees required for such a claim outweighed the potential benefits. This decision reflects a practical understanding of the balance between seeking provision and preserving the estate’s value for all beneficiaries.

Attwood Marshall Lawyers, on behalf of its client made 13 key submissions in support of his position that Grace’s application ought to be summarily dismissed with costs.

Grace opposed the application on the basis that her claim was not untenable or an abuse of process. She made submissions that her evidence establishes that the provision for her from the deceased’s estate under the rules of intestacy was not adequate for her proper maintenance and support.

Exercise caution: Family provision claims without merit

In this case, the court held that:

  1. Grace had failed in her Family Provision Application to demonstrate she had been left without adequate provision from the deceased’s estate for her proper maintenance and support;
  2. Grace’s application had no real prospects of success;
  3. It was entirely possible that if Grace’s application proceeds, the remaining estate would be drained entirely in legal costs, and a summary dismissal would save time, and expense and avoid the erosion of the estate by the cost of litigation;
  4. The interests of justice warrant that summary dismissal be granted.

Accordingly, the court summarily dismissed Grace’s application and ordered her to pay the applicants’ costs on a standard basis. This adverse costs award was an unusual exercise of the court’s discretion in these matters and demonstrated how weak the claim was.

While it was a positive outcome preventing an unwarranted legal process, it still came at a cost. Legal fees were incurred by both Grace in preparing her family provision application and Attwood Marshall Lawyers’ client and another party in proceeding with their summary dismissal application.

The repercussions were significant for Grace, with the judge ordering her to bear the legal costs of both sides. This outcome ultimately diminished what Grace was initially entitled to receive from the deceased’s estate.

As the aptly quoted words of American writer and professor Isaac Asimov suggest, “If you ask for too much, you lose even that which you have.”

This timeless wisdom is a poignant reminder that greed can lead to self-defeating outcomes, leaving one with far less than they initially sought. This was very much the case in Grace’s circumstances.

Key takeaways

If you have been left out of someone’s Will, or believe you have not received adequate provision, or if someone you love has died intestate, and you believe you should have a greater share of the estate than what is available under the terms of the Will or through the rules of intestacy, it is critical to get the right advice early on. This ensures that a lawyer who has an in-depth understanding of Succession Law can review your prospects of successfully making a claim, confirm your eligibility to make a claim and give you an idea of the type of award you may receive in your case if it went to a contested hearing. It is crucial to seek guidance from a lawyer who practices exclusively in estate litigation before you commence legal proceedings!

Just because you may want more from an estate does not mean you are entitled to it.

Beware of carelessly making claims for further provision when there is no merit – it will cost you! If you waste the court’s time, it will deliver consequences and may order you to pay costs.

Additionally, another key takeaway to learn from this case is to ensure you have a legally binding and updated Will.  

The rules of intestacy ensure a fair distribution of an estate where a deceased person has not left instructions to make their wishes known. However, this may not necessarily reflect what the deceased intended for their estate and beneficiaries.

Engaging a lawyer who practices in estate planning to draft a Will is a much simpler task than many people think. It can help avoid disputes arising between your loved ones after you are gone, which not only places excessive stress on those who are already grieving your loss but also can lead to significant legal costs that will either come out of the estate, devaluing it, or need to be forked out by those in dispute.

This can be avoided through proper estate planning and implementing the right strategies with the help of an experienced lawyer while you are alive and well. 

Attwood Marshall Lawyers – helping you understand your rights in estate disputes

We are proud to have a highly experienced estate litigation team with senior lawyers who practice exclusively in this complex area of law. Our team are available to help people understand their rights in estate disputes.

Succession Law and contesting Wills are complex issues, and when someone makes a family provision claim, emotions are generally running high. It is essential to get the right advice from the start and have an experienced lawyer guide you through the dispute resolution process. Trusting an experienced lawyer often means they can help carry the burden and reduce family conflict as much as possible.

For expert advice, please get in touch with our Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email or call 1800 621 071 any time.

Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.

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Martin Mallon - Senior Associate - Estate Litigation

Martin Mallon

Senior Associate
Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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