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Scott v Kerr

 

[2020] QDC 257

DISTRICT COURT OF QUEENSLAND

CITATION:

Scott v Kerr [2020] QDC 257

PARTIES:

TERRY DAVID SCOTT

(applicant)

V

DAVID JAMES KERR AND DAWN ESTELLE KERR AS PERSONAL REPRESENTATIVES OF DOROTHY BUTTERWORTH (DECEASED)

(respondent)

FILE NO/S:

BD No 4065 of 2019

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

9 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2020

JUDGE:

Jarro DCJ

ORDER:

I will hear from the parties as to the form of the order and costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where applicant is the only child of the deceased – where applicant was estranged from the deceased – where applicant is in receipt of a disability support pension – where applicant has mere personal effects, no savings and no superannuation – whether applicant has been left without adequate provision for his proper maintenance

Succession Act 1981, s 41

Goodman v Windeyer (1980) 144 CLR 490, cited.

Singer v Berghouse (1994) 181 CLR 201, cited.

T v R & Anor [2019] QDC 220, applied.

Vigolo v Bostin (2005) 221 CLR 191, cited.

COUNSEL:

R T Whiteford for the applicant

A G Jamieson for the respondent

SOLICITORS:

Shine Lawyers for the applicant

Hunter Solicitors for the respondent

  1. [1]
    Pursuant to s 41(1) of the Succession Act 1981, the applicant, a 70 year old disability support pensioner who became estranged from his parents in the early 1970s, seeks further and better provision for his proper maintenance and support arising out of the estate of his late mother (“the deceased”). The applicant’s father predeceased the applicant’s mother. The applicant was an only child.
  1. [2]
    In essence, the applicant’s late mother bequeathed about $50,000 to the applicant out of an estate valued no more than $700,000. The applicant claims that this amount is insufficient. Approximately $450,000 of the estate has been left to the respondents, who were the caring and supportive neighbours of the applicant’s parents over many years when the deceased and her late husband relocated from NSW to the Gold Coast. The respondents treated the applicant’s parents like family. It is understandable therefore that the deceased decided to leave a large portion of her estate to them.
  1. [3]
    The approach to be taken in family provision matters has been well-established by the authorities.[1] In T v R & Anor [2019] QDC 220, Horneman-Wren SC DCJ comprehensively considered the principles enunciated by the authorities, which I respectfully adopt. I find it unnecessary in these reasons to repeat the matters usefully expressed by his Honour.[2]
  1. [4]
    For the reasons to follow, I have determined that there should be further and better provision for the applicant’s proper maintenance and support, such that he should receive $100,000 out of the deceased’s estate, structured in a way that preserves the deceased’s testamentary scheme as much as possible.

The Applicant’s Life and Other Relevant Factual Matters

  1. [5]
    The applicant was born in Sydney on 8 January 1950 as David Edward Butterworth. He was an only child. He described having a troubled childhood and eventually leaving the family home at the age of 18.[3] Memories of his troubled childhood included alleged physical and emotional abuse he suffered from his parents and at school. For instance, the applicant detailed the following experiences:
  1. (a)
    The applicant claimed that his father was overbearing and bad tempered and his mother had a “sharp tongue and was quite mean”.
  1. (b)
    When he was about four, he walked into his mother’s bedroom. His mother was getting dressed. She proceeded to point to the caesarean scar on her stomach and angrily say words to the effect: “because of you, I can’t have any more children, now get out of my face”. He described “no love from her and there was no care for me”.
  1. (c)
    The applicant’s father could ignore the applicant for up to a month.
  1. (d)
    The applicant would have to wait until his father returned from work each day before being allowed to enter the family home. He was not allowed a spare key, nor was he allowed to have any friends to come and visit. The applicant “felt like a prisoner” in his own house.
  1. (e)
    As a way of escaping his “horrible home life”, the applicant experimented with alcohol and cigarettes at school from about 10 years of age.
  1. (f)
    Because of the unhealthy relationship with his parents, the applicant “was running away from home once or twice a week”.
  1. (g)
    The applicant’s parents put him into Fraser House, a psychiatric therapeutic community unit for six weeks when he was 10.
  1. (h)
    He was sent back to Fraser House in May 1967, at the age of 16, for just over two weeks following being charged with homosexuality offences. The applicant’s perception was that this was to “cure” his homosexuality.
  1. (i)
    Attending a boarding school in Bathurst whilst his parents went on an overseas holiday without him. The applicant had to remain at the boarding school during the holiday period.
  1. (j)
    An incident of alleged rape perpetrated by fellow students at the applicant’s secondary schooling boarding house involving butter.[4] The applicant said that he told his father about the rape at boarding school. This was in circumstances where his father drove to boarding school to visit him. The applicant gave evidence:

“He came up. And I got in the car, and I said, ‘Let’s go home.’ And he said, ‘What for?’ And I told him. And he told me to get out of the car, and he drove off.”[5]

  1. (k)
    He “can recall few details about the incident when I was kicked out of home. I came home from school and my parents were angry. My mother yelled at me and called me a slut, and my father told me to get out”.
  1. [6]
    The applicant gave evidence that he left the family house at the age of 18.[6] He admitted that he did break into his parents’ house twice after this in order to get some clothing and cash (as he said he was living on the streets). After he left the family house, he did not see his parents again. He “looked [his] parents phone number up from time to time and rang their number approximately 3 or 4 times. On one occasion that [he] called, [his mother] answered and when she realised it was [him], she hung up the phone”. In evidence he recalled that when his mother heard his voice, she said words to the effect “oh God, it’s you” and hung up.
  1. [7]
    Ultimately the applicant lost contact altogether with his parents. He remembered receiving a visit from his mother’s sister in Sydney who “would not tell me where my parents were living, just that they moved to Queensland”.[7]
  1. [8]
    Relevantly in his late teens, the applicant moved to Kings Cross and worked in a number of bars until he obtained more gainful employment.
  1. [9]
    At the age of 21, the applicant met his “friend, companion and paid carer” Glen Harvy in 1971. They have cohabitated since. These days the applicant regards Mr Harvy as his carer, not his partner. The respondents contend this assertion in respect to the applicant’s “carer” cannot be accepted. I note in a medicolegal report of 24 May 2019, the applicant reported to Forensic Psychiatrist Dr Stephen Allnutt as follows:

“As described, he had met Glenn when he was 21 and had remained with him. He described Glenn as a ‘sort of carer’. Glenn made sure he was ok and helped him when his back ‘went’. He denied having a physically intimate relationship with Glenn, saying he had not had a physically intimate relationship since he stopped working as a prostitute. When he stopped that work his sex life went downhill because ‘I couldn’t be bothered’ and he did not want a sex life. His sex drive ‘went’ when he was 22 because he kept having nightmares about school and his parents. His relationship with Glenn was one of love and companionship, but no intimacy. He had no interest in sexual intimacy, saying what had happened in college ‘puts you off because you used to be a piece of meat’. He remained in a stable relationship with Glenn.”[8]

  1. [10]
    The applicant worked as a barman until 1979 and then as a sales assistant at Grace Brothers for four or five years until the mid-1980s. He injured his back while working there and was unemployed for about 10 years during which time he required back surgery on three occasions. In 1993, the applicant received a payment for compensation for the back injury.[9] Using this money, he and Mr Harvy bought a property in the Sydney suburb of Manly and, while living there, the applicant worked as a barman and a shop manager.
  1. [11]
    It seems the applicant’s parents moved to the Gold Coast in about 1993. They lived next door to the respondents.
  1. [12]
    The applicant’s parents executed a number of Wills. Relevantly on 1 June 2000, the deceased executed a Will which appointed her husband as the executor and sole beneficiary if he survived her. If he pre-deceased her, she left her estate to her niece. Clause 8 of that Will stated:

“I MAKE NO PROVISION for my son DAVID EDWARD BUTTERWORTH with whom I have had no contact for at least 20 years and have not seen since he was 18 years of age when he left home and whose behaviour has always been a cause of great disappointment and concern for me particularly his criminal activities and his general moral mis-conduct. I have set out details which I cannot condone and which have been taken into account by me in coming to this decision in a separate statement which is signed and dated by me”.[10]

  1. [13]
    The statement signed by both the deceased and her husband on 12 July 2000 stated:

“We jointly and separately wish that no provision be made in our wills for our son David Edward Butterworth. We wish that no part of our estate either directly or indirectly or by way of a third party shall be of benefit to him.

This person, (our son, David Edward Butterworth) in the years that we nurtured him was a persistent worry to both of us.

From our personal knowledge he was in constant trouble with authorities from early school age. Particularly during his school days, we were always having to apologise for his stealing and unacceptable behaviour.

In an effort to correct this we enrolled him in a private school which only resulted in more of the same. Finally, we were asked to remove him from that school for stealing from the staff.

After he left home at age eighteen, he broke into our house, through the roof, on two occasions and stole money and goods.

Later, he was arrested on a sexual charge and as a result spent time in North Ryde Psychiatric centre, instead of a correctional centre. During visits we made two sessions with him at the centre, which we made in a last effort to rehabilitate him he displayed a cynical use of the system to continue his life in the same way as before, making no effort to reform.

He has adopted a homosexual life style which deprived us of the possibility of grandchildren and their children. As he is the last of our family line, this is extremely disappointing for both of us.”[11]

  1. [14]
    The applicant and Mr Harvy sold their property in Manly in 2004 and moved to Airlie Beach in 2005. They bought a restaurant and bar. The business failed and the applicant was declared bankrupt. He then took work as a cleaner.
  1. [15]
    The applicant’s father died in 2007 and left nothing of his estate to the applicant.
  1. [16]
    On 18 September 2008, the deceased executed a new Will, appointing the respondents as executors. It left Mr and Mrs Kerr $350,000 and made other pecuniary legacies totalling $4,000. It made specific gifts of jewellery. It divided her residuary estate equally between nine people, which included the applicant and respondents. On the same day she executed a statutory declaration largely repeating the earlier joint statement of 12 July 2000. It stated:

“I have not made any large provision in my Will made today for my son, David Edward Butterworth for the following reasons.

In the years that my late husband Wally and I nurtured him was a persistent worry to both of us. From our personal knowledge he was in constant trouble with authorities from early school age. Particularly during his school days, we were always having to apologise for his stealing and unacceptable behaviour. In an effort to correct this we enrolled him in a private school which only resulted in more of the same. Finally we were asked to remove him from that school for stealing form the staff. After he left home at age eighteen, he broke into our house, through the roof, on two occasions and stole money and goods. Later, he was arrested on a sexual charge and as a result spent time in North Ryde Psychiatric centre, instead of a correctional centre. During visits we made to sessions with him at the centre, which we made in a last effort to rehabilitate him he displayed a cynical use of the system to continue his life in the same way as before, making no effort to reform. He has adopted a homosexual life style which deprived us of the possibility of grandchildren. As he is the last of our family line, this was extremely disappointing for both of us.

I have not seen him for over 20 years and have not heard from him at all for longer, not even one letter or card. I am only giving him a small benefit in the Will because I am told that if he does not get something he can contest my Will.”[12]

  1. [17]
    In 2009, the applicant and Mr Harvy moved to Katoomba. He continued to work as a cleaner until 2013 when he ceased employment because of back pain. He has been in receipt of the Disability Support Pension since 2013. In December 2015, his superannuation totalled about $9,100. He withdrew $4,100 and contributed this to the purchase of a car and caravan which was bought by Mr Harvy. In 2017, the applicant withdrew the balance of his superannuation to pay for repairs to the caravan.
  1. [18]
    The applicant gave evidence that in June 2018 he changed his name from David Edward Butterworth to Terry David Scott due to bullying he endured during primary school and high school because of his last name, including the alleged rape perpetrated by fellow students at his boarding school involving butter.[13] The following exchange occurred in examination in chief:

“When did the teasing start?The teasing started at primary school.

What sort of teasing did you get at primary school?Oh, I used to get butter thrown at me, “G’day, Butter Butt”. And, you know

“Butter Butt.”? “Butter Brain”

Sorry, “Butter” ?“Butter Butt.” Yeah, “Butter Brain.” You name it.

All right?“How much is a pound of butter?”

And did that tea ?No-one ever called me by my first name.”[14]

  1. [19]
    I found it odd that the applicant waited until his late 60s to formally change his name. His name change occurred about nine months before his mother passed.
  1. [20]
    As noted, the applicant is now 70 years of age. His pension equates to $22,658 per year. His only assets are personal effects worth about $500 and savings of $139. He lives with Mr Harvy in Mr Harvy’s caravan in a caravan park. He considers himself to be a ‘grey nomad”. He currently has a claim against the boarding school for damages for the assaults he suffered as a student there. However, it is my cursory view that the prospects of him receiving any or any significant amount by way of damages seems poor. The applicant suffers from torticollis of the neck, low back pain requiring panadine forte, torn ligaments in the right shoulder requiring cortisone injections and panadine forte, arthritis in the hands, knees and feet and depression. He is dependent on alcohol. He does not have private health cover. He attested:

“If I was to receive further provision from Mum’s estate I would like to buy a little sandstone cottage, settle down and lead a normal life.

I would dearly like to get out of poverty as my pension does not go very far.

If I was to receive further provision I would also like to financially contribute to some required maintenance work on Glen’s caravan.

…I also have ongoing medical costs that need to be met and I would be able to secure private health insurance to help cover the costs.”

  1. [21]
    I note that Mr Harvy’s financial position, like the applicant’s, is limited. He is in receipt of the aged pension, has little savings and personal effects and has debts of about $26,700.
  1. [22]
    On 22 March 2019, the deceased died aged 91.[15] At the time of her death, the deceased’s estate was valued at no more than $700,000. The deceased’s last Will was dated 12 August 2011.[16] Probate has been granted. Under the terms of the Will, the applicant is to receive about $51,000. The respondents receive $350,000. Each of the respondents, also, receive the same amount as the applicant because the residuary estate is divided equally between six people, namely the respondents, their two children, the applicant and one other person.[17] There are other pecuniary legacies totalling $3,000 to other beneficiaries. It makes specific gifts of jewellery to five beneficiaries.
  1. [23]
    The Will appointed the respondents as executors. The respondents were neighbours of the deceased and they treated the deceased like a mother. They were close and spent holidays together. Following the death of the deceased’s husband in 2007, Mrs Kerr, in particular, assisted with running any errands the deceased may have had or any other assistance that she asked for. This was particularly so after the deceased suffered a number of minor strokes and quickly went downhill physically afterwards. However, according to Mrs Kerr, the deceased was able to stay on top of all of her day to day financial and non-financial affairs.[18] It was only after the deceased’s husband’s death, that the respondents first became aware of the existence of the applicant.[19]
  1. [24]
    According to the respondents, the net estate after the estate’s costs of these proceedings is between $573,217 and $578,217. This range has been derived from cash ($638,798) and jewellery (valued at $5,605) less estate liabilities for administration and costs of these proceedings ($65,522 and $70,522).[20]

Has the Applicant been left without Adequate Provision for his proper maintenance?

  1. [25]
    The first stage of the two stage inquiry goes to jurisdiction and is to be determined at the date of the death of the deceased, including matters which could be reasonably foreseen at that time.[21] As was explained by the High Court in Singer v Berghouse on this issue:

“The determination of the first stage in the two stage process called for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty … the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.”[22]

  1. [26]
    In other words, in deciding the jurisdictional question, the Court looks at all of the circumstances of the case, including need and moral claim, in an objective manner and makes a finding of fact that adequate provision has or has not been made for the applicant.[23]
  1. [27]
    Under the terms of the Will, the applicant stands to receive about $51,000. The size of the deceased’s estate as at the date of death is unclear, however, the net value of the estate was quantified at $669,039.32.[24] The deceased’s reasons for making no further provision must be taken into account in considering the jurisdictional question. The reasons she gave have been recited earlier. Indeed the respondents’ position is that, as executors of the Will, they acknowledge that they have a duty to uphold the wishes of the deceased. The executors, being aware of the written statements of the deceased to the effect that the deceased did not wish to provide for her son, felt obliged to comply with her strong wishes. No criticism therefore can be made of them.
  1. [28]
    The totality of the relationship between the applicant and the deceased is a factor to take into account. The applicant is the sole biological child of the deceased. The applicant is homosexual. He effectively did not have a relationship with his parents after he left the family home in his late teens. His parents were aggrieved that they could not have grandchildren. The applicant’s estrangement from his parents was multifactorial and, when viewed objectively, it seems that both parties cannot be seen to be blameless with respect to their actions.[25] Both parties effectively chose to have little, if any, contact with the other after the applicant left the household at the age of 18.
  1. [29]
    A further factor to take into account is the applicant’s financial position. In my view, this is poor. He is 70 years of age and is in receipt of a disability support pension of no more than $23,000 per annum. He has mere personal effects, no savings and no superannuation. He lives in a caravan bought by Mr Harvy. He has significant health issues. He suffers from torticollis of the neck, low back pain requiring panadeine forte, torn ligaments in the right shoulder requiring cortisone injections and panadeine forte, arthritis in the hands, knees and feet and depression. He is dependent on alcohol. He does not have private health cover. It seems to me the applicant’s limited financial capacity deprives him of optimal health care not otherwise afforded in the public system.
  1. [30]
    All in all I have narrowly found in favour of the applicant that because of his poor financial position, the provision left in the Will is insufficient to provide him with a reasonable level of financial security for the remainder of his life such that he needs greater provision for his adequate and proper support. I do so particularly in circumstances where his parents effectively ceased contact with their son at the age of 18 and, by refusing his efforts, albeit minimal, to make contact, precluded the opportunity to establish a meaningful relationship with the applicant as and when he matured. Current community standards are relevant to the assessment of adequacy of provision.[26] Secondly the bulk of the deceased’s estate is left to the respondents and whilst it is accepted by the applicant that the respondents were very close to the deceased and provided her with significant support and assistance, the applicant, who is the deceased’s only child, has a pressing need for further provision from the estate for his proper maintenance and support given the absence of information from the respondent about their financial circumstances.[27] I also note the financial circumstances of the other beneficiaries.[28]
  1. [31]
    I accept the submission made on behalf of the applicant that while the fact that an applicant’s need is “self-inflicted” is undoubtedly a matter that a testator might take into account, there is no evidence to support a conclusion in the present instance that the applicant’s current financial circumstances are due to bad conduct on his part, as opposed to business misfortune or personal injury. To a lesser extent, as was highlighted on behalf of the applicant, whilst it may be argued that the applicant should have been more proactive in attempting to re-establish contact with his parents, it was disingenuous of his parents to complain about this when it was them who determined to cut off contact with the applicant when he was young and, particularly relevant to the deceased, reject his later attempts to make contact. There is no evidence that lack of contact with the applicant caused the deceased genuine distress. She did not complain to the respondents that she was upset because the applicant did not contact her. In fact she only mentioned the applicant to the respondents after the passing of her husband on one or two occasions.[29] Further she spoke about the applicant to her friend, Kay Scarr, only once.[30]
  1. [32]
    Therefore the jurisdiction of the court is enlivened under s41 of the Succession Act 1981, and for these reasons, I have formed the view that the Will failed to make adequate provision for the applicant.

What provision ought to be made?

  1. [33]
    The applicant contends that proper provision should be made for him by a payment of between $150,000 and $250,000 from the estate in lieu of the provision made for him by the Will. It was further submitted that, under s41(3) of the Succession Act 1981, the further provision should be paid from Mr and Mrs Kerr’s legacy of $350,000, as that preserves the deceased’s testamentary scheme as much as possible. This leaves the residuary estate to be divided equally between Mr and Mrs Kerr, their two adult children and Kay Scarr.[31]
  1. [34]
    Whilst I accept that further provision should be paid from Mr and Mrs Kerr’s legacy, I disagree with the amount sought as I am not satisfied the evidence demonstrates proper provision to such an extent.
  1. [35]
    The current net value of the estate after payment of the respondent’s costs is about $575,000.
  1. [36]
    Being mindful of the applicant’s financial situation, medical issues and the need to meet the contingencies of life balanced against ensuring as best I can testamentary freedom, $100,000 seems an appropriate amount to be made in favour of the applicant.[32]
  1. [37]
    I will hear from the parties as to form of the order and costs.

Footnotes

[1]Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191; Goodman v Windeyer (1980) 144 CLR 490.

[2]At [5] – [9].

[3]It is a disputed issue between the parties as to whether the applicant ran away from home or was kicked out of home. Not much turns on this issue though given the length of, and lack of, contact between the applicant and his parents thereafter.

[4]T1-16 to T1-17.

[5]T1-18, lines 15 to 17. Cf Affidavit of the applicant, sworn 12 December 2019, at [56].

[6]T1-19, line 25. Cf Affidavit of the applicant, sworn 12 December 2019, at [63].

[7]Affidavit of the applicant, sworn 12 December 2019, at [107].

[8]Exhibit 4, pp 265-266.

[9]1993 was the year when the applicant’s parents, unbeknownst to the applicant, relocated to the Gold Coast.

[10]Affidavit of the applicant, sworn 12 December 2019, at “TDS-5”.

[11]Affidavit of the applicant, sworn 12 December 2019, at “TDS-6”.

[12]Affidavit of the applicant, sworn 12 December 2019, at “TDS-8”.

[13]T1-16 to T1-17.

[14]T1-17.

[15]Affidavit of the applicant, sworn 12 December 2019, at “TDS-1”.

[16]Affidavit of the applicant, sworn 12 December 2019, at “TDS-2”.

[17]Another person was also a residuary beneficiary, however he predeceased the applicant on 17 March 2016.

[18]See generally affidavit of Mrs Kerr, sworn 9 March 2020.

[19]See for example affidavit of Mrs Kerr, sworn 9 March 2020 at [14].

[20]Affidavit of Mrs Kerr, sworn 9 March 2020 at [9].

[21]Singer v Berghouse (1994) 181 CLR 201 at 209-210; Vigolo v Bostin (2005) 221 CLR 191 at [4].

[22](1994) 181 CLR 201 at 209-210.

[23]Family Provision in Australia, 3rd Ed, de Groot and Nickel, [2.3].

[24]See affidavits of Mrs Kerr sworn 9 March 2020 and 31 July 2020.

[25]See various passages contained within Exhibit 5.

[26]Vigolo v Bostin (2005) 221 CLR 191 per Gleeson CJ; Singer v Berghouse (1994) 181 CLR 201 per Mason CJ.

[27]I have drawn an inference that they have no financial need for that money for their proper maintenance and support.

[28]See the affidavit of Mrs Kerr, sworn 31 July 2020 at [11].

[29]Affidavit of Mrs Kerr at [8]. See also affidavit of Mr Kerr at [8] and [14].

[30]See Affidavit of Ms Scarr at [7].

[31]As to the financial position of other beneficiaries, I note the affidavit of Mrs Kerr, sworn 31 July 2020 at [11].

[32]A draft order on behalf of the applicant was provided at the time of the hearing. I propose to adopt in large part the substance of the terms sought. I intend to hear from the parties though before pronouncing a formal order (including costs).

Close

Editorial Notes

  • Published Case Name:

    Scott v Kerr

  • Shortened Case Name:

    Scott v Kerr

  • MNC:

    [2020] QDC 257

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    09 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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