by Kate Varcoe

The case of Kirk v Withington & Ors [2023] QSC 141 serves as a timely reminder about three key practical factors concerning Family Provision applications, being:

  • When considering an applicant’s claim for further provision, a Court will have regard foremost to the applicant’s needs in all the circumstances, even where the applicant’s personal financial position exceed the assets of the estate (not on any misguided notion of an award being made on a % basis);
  • That, in practice, where the parties to an application consent to an order to compromise a Family Provision application, unless certain factors are present, the determination of the proceeding ought to be heard on the papers (that is, without the parties and their representatives having to attend a hearing in person) – provided that such an application is actually made; and
  • Depending on the relevant circumstances of each matter, having the matter determined ‘on the papers’, is often likely to be the most cost-effective way of dispensing with the proceeding.

The applicant, Barbara Maria Kirk (“Barbara”) and the deceased, Gary William Kirk (“Gary”) commenced a relationship in 1997. They were both previously married and Gary had three children from his previous marriage, Victoria Withington (“Victoria”), Katherine Redman (“Katherine”) and Anthony Kirk (“Anthony”).

Gary appointed his three children as joint executors of his estate in his last will dated 18 September 2017.

In 2000, Barbara and Gary purchased a house at 97 Pebble Beach Drive, Runaway Bay, Queensland, which was later sold, and in 2019 they purchased Unit 19, 17 Bayview Street, Runaway Bay, Queensland, (“the unit”) as tenants in common in equal shares.

Clause 7.1(a) of Gary’s last will reads:

If my Fiancé (‘my Fiancé’) BARBARA MARIA GILBERT survives me I DIRECT:-
(a) my executors to hold my share of my principal residence as at the date of my death (currently situated at 97 Pebble Beach Drive, Runaway Bay in the State of Queensland (‘the Residence’) on trust for my Fiancé for a minimum period of six (6) months…

The clause was construed such that Gary’s interest in the unit be held on trust for Barbara for at least 6 months and upon her vacating the premises, for the unit to form part of the residue.

Barbara initiated a Family Provision application, contending that inadequate provision had been made for her.


  1. the matter ought to be heard pursuant to r.489(2) UCPR without an oral hearing; and
  2. further provision ought to be awarded to the applicant in light of her circumstances.

The issue at hand was whether Barbara’s significant assets prevented her from seeking further provision from the estate.

The estate was valued at $771,226.03 and Barbara had personal assets valued at approximately $1,390,757.20 consisting of:

  • Her half interest in the unit valued at $503,000;
  • Property in South Australia valued between $360,000 and $390,0000
  • Cash at bank of $497,757.24.

In addition to her assets, Barbara was also receiving a fortnightly pension of $2,086.55 a fortnight and rental income of $200 a fortnight.

The Court held that, although Barbara had significant assets and the financial capacity to realise those assets, her provision under the will was inadequate on the basis that:

  • She was 78 years of age;
  • She was retired;
  • Her income was limited;
  • She had multiple chronic illnesses.

It was therefore ordered that:

  1. As none of the circumstances prescribed by r 489(2)(b) – (d) applied in this instance, the court must decide the matter on an oral hearing; and
  2. In essence, that Gary’s interest in the unit be conferred to Barbara for her lifetime on certain conditions.

More on Wills and Estate Dispute Resolution and Litigation

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