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  • Unreported Judgment

Fenton-Anderson & Anor v Power & Anor (No 2)

 

[2020] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION

Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294

PARTIES:

Peta Divina Alexandra Fenton-Anderson & Toni Leigh Dolores Fenton-Leslie  

(Applicants)

V

DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)

(Respondents)

AND

SUZANNE MICHELLE FENTON

(Respondent by election)

FILE NO:

DC 42/18 No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Trial    

ORIGINATING COURT:

District Court at Toowoomba 

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

  1. I will hear the parties as to the form of orders to give effect to these reasons, including as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants apply under s. 41(1) of the Succession Act 1981 (Qld) for further provision of the deceased’s estate – where the applicants are the daughters of the deceased – where the respondent by election is the mother of the applicants and ex-wife of the deceased – where the main asset of the estate is a home situated on a 200 acre property – where the respondent by election continues to reside on the property – where the respondent by election receives NDIS payments – whether the respondent by election can continue to maintain the property in accordance with the terms of the will – whether it is necessary or desirable for the respondent by election to continue residing there – whether adequate provision is currently made for the applicants under the will 

SUCCESSION – FAMILY PROVISION – CRITERIA FOR DETERMINING APPLICATION – GENERALLY – CIRCUMSTANCES TO BE CONSIDERED – where the respondent by election is the ex-wife of the deceased – where the deceased and respondent by election divorced in 1983 – where the nature of the relationship between the deceased and respondent by election was one of the main issues in contention at trial – where the deceased and respondent by election continued to reside under the same room from 1991 until the date of death in 2017 – whether there was a de facto relationship between the deceased and respondent by election– whether the respondent by election is otherwise an eligible application to apply for further provision.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s. 32DA

Succession Act 1981 (Qld) ss. 5AA; 41(1)

CASES:

Camernik v Reholc [2012] NSWSC 1537

Darveniza v Darveniza [2014] QSC 37

Gersbach v Blake [2011] NSWSC 368

Niebour-Pott & Anor v Pott [2020] QSC 7

Spencer v Burton [2016] 2 Qd R 215

Tomasevic v Travaglini (2007) 17 VR 100

SECONDARY SOURCES:

John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5th ed, 2016)

William Anthony Lee, Lee’s Manual of Queensland succession law (Lawbook Co., 8 ed, 2019)

COUNSEL:

K C Kelso for the applicants

A P Collins for the respondent executors

Respondent by election self-represented

SOLICITORS:

Wonderley & Hall for the applicants

Bernays Lawyers for the respondent executors

Respondent by election self-represented

 

Table of Contents

Summary

The trial

The witnesses

The facts

Early family life

Acquisition of Cambooya

The subdivided lots

April 2010: The Will

Attempts to sell the property 2012 to 2017

Carers of Mrs Fenton

The cards and my conclusion on the relationship

Events leading up to Mr Fenton’s death

General principles

Size of the estate

Assets

Cambooya

Antiques

The Ford Territory

Other items

Debt due from Ms Fenton-Anderson

Liabilities

Date of death

At judgment

Conclusion on net estate

Ms Fenton-Leslie as applicant

Personal and financial circumstances

Relationship with the deceased

Other relevant matters

Ms Fenton-Anderson as applicant

Personal and financial circumstances

Relationship with the deceased

Other matters

Mrs Fenton as applicant/competing claimant

Heath and financial position

Character of her claim: applicant or competing claimant?

Mrs Fenton not a de facto spouse

Mrs Fenton not a dependant former wife

Mrs Fenton not an eligible applicant

Character of Mrs Fenton as a competing claimant

Poor prospects of maintaining the Cambooya estate in accordance with the Will

Adequate provision not made for the applicants

The provision under the Will

At death

At trial

Mrs Fenton’s position

Adequate provision not made

The grandchildren

Late affidavit material from Mrs Fenton

Delays in delivering submissions

Mrs Fenton’s material delivered on 19 November 2020

The response to the Mrs Fenton’s material

The Court’s response to Mrs Fenton’s material

Provision to be made

Framework informing the making of provision

Provision for the applicants

Form of proposed orders

Summary

  1. [1]
    On 23 February 2018, Mr Joseph Fenton died aged 72, leaving a will dated 22 April 2010 (the Will) which had been prepared by Mr David Power, a solicitor, who is also one of the respondent executors (Mr Power).  The primary asset of his estate is his 6-bedroom house and rural property at Cambooya, worth some $1m (the Cambooya property).  The primary beneficiary of the Will was Mrs Suzanne Michelle Fenton, Mr Fenton’s ex-wife (Mrs Fenton).  She received effectively all the personal estate (limited to some modestly valuable antiques and other minor chattels) along with a right to reside for life at Cambooya on certain conditions.  The various alternative arrangements for Cambooya should she be unable to meet the primary conditions of her right to reside also largely favoured Mrs Fenton. 
  1. [2]
    Mr Fenton has two adult daughters: the applicants Ms Fenton-Anderson and Ms Fenton-Leslie.  They benefitted under the Will in a modest way and only if the conditions arose under the Will for sale of Cambooya.  By originating application filed 19 November 2018, they applied for further provision from the estate of their father pursuant to s. 41(1) Succession Act 1981 (Qld).  
  2. [3]
    The key disputes on the evidence focussed on three principal issues. They were:
    1. (a)
      The closeness of the relationship between Mrs Fenton and Mr Fenton since their divorce and particularly in the last years of Mr Fenton’s life;
    2. (b)
      The propriety of the conduct of the applicants in the last weeks of Mr Fenton’s life in relation to funds received from Mr Fenton, an Enduring Power of Attorney he made favouring them and his efforts to change the Will so as to favour the applicants; and
    3. (c)
      The capacity of Mrs Fenton to continue to maintain the Cambooya property in accordance with the terms of the Will and the necessity or desirability of her continuing to reside there.
  3. [4]
    As to the first matter, for the reasons explained below, I have concluded that although Mr and Mrs Fenton lived under the same roof for many years after their divorce in 1983, Mrs Fenton was not Mr Fenton’s de facto spouse, nor was she his partner or female companion, at the least from 1991.  Nor did they have any other kind of joint life, be it financial or social, except in the most superficial way.  I have also concluded that in the last months of his life, at the least, Mr Fenton had real animus towards Mrs Fenton.  On the other hand, however, Mr Fenton chose to permit Mrs Fenton to live for many years in the same house as him and chose partially and indirectly to support her financially in other ways, creating some obligation to her in the process.
  4. [5]
    As to the second matter, I find that Mr Fenton was directing the events freely and exercising his own will in the last weeks of his life and that his conduct was the result of his animus to Mrs Fenton and his wish to favour his daughters with his estate, so far as he could manage in the circumstances at the end of his life.
  5. [6]
    As to the third matter, I have concluded that Mrs Fenton is very unlikely to be able to maintain the Cambooya property in accordance with the terms of the Will.  Further I have concluded it is neither necessary nor desirable for her to continue to live there to be able to have a secure home and proper personal support.
  6. [7]
    Bearing in mind those findings and my conclusion that both applicants otherwise made out an entitlement to further provision from the estate, I have concluded that further provision should be made for Ms Fenton-Anderson in the amount of $125,000 inclusive of costs and for Ms Fenton-Leslie in the amount of $175,000 inclusive of costs.  I exonerate the whole of the estate except the Cambooya property in respect of those orders.  Accordingly, the sale of the Cambooya property will be necessary.  It would in any event probably have been sold to deal with the costs of these proceedings and the administration, much of which appear to have been incurred by Mrs Fenton’s conduct in these proceedings and in relation to the administration of the estate.   

The trial

  1. [8]
    Before making findings of fact necessary for the determination of the application, I should make some comments about the way the trial was conducted. 
  2. [9]
    The first day was taken up with Mrs Fenton’s application to adjourn the trial.  She attended by telephone.  The events on that day are particularised in my other judgment published today (the adjournment judgment).  After determination of the adjournment application, I informed Mrs Fenton as to how the balance of the trial was likely to proceed and explained the process for submissions at the end of the trial.  I suggested that she follow her medical advice as to participation in the trial and reminded her that Mr Collins and Mr Power would act reasonably to uphold the Will.   Mr Collins also asked if Mr Power could give evidence first. 
  3. [10]
    On day two of the trial, Mrs Fenton appeared again by telephone.  Again, Mrs Fenton said she was unwell and I repeated that she did not have to participate and that I expected Mr Collins and Mr Power would act reasonably to uphold the Will.   Mr Power was then sworn and adopted two affidavits as his evidence.  He then gave some oral evidence updating the funds collected and paid for the estate by reference to statements tendered in the proceedings as exhibit 3.  He also described the state of the property in March 2019, contrasting the poor condition in March with the much improved condition at the time of the trial. 
  4. [11]
    Mr Power was cross examined briefly by Mr Kelso and for the balance of the morning by Mrs Fenton.  Mrs Fenton’s cross examination varied between inappropriate speech making and irrelevancies on the one hand, and some effective questioning on the other.  The cross examination was always vigorous.  Her cross examination tended to become bogged down once it appeared Mr Power had given the evidence he could helpfully give.  
  5. [12]
    I then informed Mrs Fenton that Mr Kelso’s case would begin after lunch and that he would call Ms Fenton-Leslie first.  I told Mrs Fenton I would initially limit her cross examination to one hour but would extend it if the circumstances justified it.  Mr Kelso led some short evidence updating the personal and financial information and then Mr Collins cross-examined.  Mr Collins’ cross examination traversed many of the key events.  It was not hostile cross examination but was sensitive to the issues of Ms Fenton-Leslie’s ability to observe the relationship between her parents and to explore how the events played out at the end of Mr Fenton’s life.
  6. [13]
    Mrs Fenton cross examined her younger daughter at some length.  It was, perhaps unsurprisingly, an emotive cross examination, though some relevant evidence was obtained.  Mrs Fenton’s attention was often focussed on obtaining evidence that she was a good mother, a matter which of itself was not of much relevance to the issues in this proceeding.[1]   In the course of that cross examination, Mrs Fenton called in aid a box of cards which she contended demonstrated an on-going relationship between her and Mr Fenton.  Ultimately, Mrs Fenton agreed to provide them to Mr Power.  Mr Power agreed to drive to her home and collect them.  During the day, Mr Power had also obtained a current statement of Mrs Fenton’s NDIS program which had earlier been mentioned by her.  Mr Collins tendered that document in the executors’ case.
  7. [14]
    Day three began with Mrs Fenton stating again that she felt unwell and me repeating my previous advice on that subject.  Mrs Fenton continued to participate for the rest of the day. 
  8. [15]
    Mr Collins tendered Mrs Fenton’s affidavits filed in the proceedings pursuant to Judge Koppenol’s order in September 2019 described in paragraph [18] of the adjournment judgment in the executors’ case. 
  9. [16]
    Mrs Fenton then continued cross examination of Ms Fenton-Leslie.  Ultimately, her cross examination went for about an hour and a half in total.  Most of it was of limited relevance, though there was some relevant questioning on the way the family celebrated birthdays and Christmases together.  I tried to assist Mrs Fenton by formulating questions from her statements and putting directly some of her most contentious propositions. 
  10. [17]
    Mr Collins then tendered the cards which had been collected by Mr Power along with a USB with 55 current photographs of the Cambooya property.  The cards were admitted on the basis that the handwritten text and dates, with a couple of minor and obvious exceptions, was Mr Fenton’s writing.[2]
  11. [18]
    Ms Fenton-Anderson then gave evidence.  Her examination related to descriptions of what was shown in the current photographs of Cambooya and expressing an opinion about parts of the card she considered were not in her father’s handwriting.  Mr Collins then conducted a similar cross examination as that he had conducted of her sister.
  12. [19]
    As with Ms Fenton-Leslie, Mrs Fenton’s cross examination of Ms Fenton-Anderson was emotive and on one occasion it appeared to be deliberately and manipulatively so.[3] Despite some good periods of proper questioning, Mrs Fenton’s cross examination tended to the irrelevant and included frequent speeches rather than questions.  Each of Mr Collins (doing his duty as he perceived it as counsel for the executors) and I attempted to assist Mrs Fenton in formulating proper questions and focussing on relevant issues.[4]  I brought her cross examination to an end when satisfied that no further relevant and proper questioning was likely.[5]
  13. [20]
    Mrs Fenton then agreed to go into the witness box.  Mr Kelso briefly cross examined and then Mr Collins examined her on some issues relating to her ability to maintain Cambooya. I then explained the submissions process and directed evidence be provided on cost estimates for the represented parties.  The matter then adjourned pending provision of written submissions.
  14. [21]
    In preparing these reasons, I noticed that Mrs Fenton’s first affidavit filed 25 January 2019 had not been read in the trial.  It was considered in the adjournment hearing and was responded to in Ms Fenton-Leslie’s second affidavits.   I have made that affidavit an exhibit in the trial.
  15. [22]
    On 17 November 2020, Mrs Fenton delivered further affidavits without notice nor leave.  To the extent it contained submissions in the form of sworn statements, I have taken them into account in these reasons.  To the extent they included further evidence, I have not taken them into account for the reasons given at the end of this judgment.  

The witnesses

  1. [23]
    I had no reason to doubt Mr Power’s evidence, whether in writing or orally.  Based on the evidence before me, he has approached his duty as executor with care and diligence, in respect of his evidence, in respect of his patient efforts to assist in putting evidence before the Court relevant to Mrs Fenton’s position and (so far as it was addressed in the evidence) in conducting the administration.  I accept his evidence.
  2. [24]
    I also generally accept the evidence of the applicants for the following reasons:
    1. (a)
      First, while I will make findings on particular contested factual matters and explain why I make those findings below, their version of contested events tends to be supported by other evidence and to be inherently probable in the light of those matters and of general experience; 
    2. (b)
      Second, during their cross examinations, they made reasonable concessions where they lacked knowledge or recollection of particular events. They did not take the many opportunities offered by Mrs Fenton’s cross examination to expand on or enhance their evidence about the contentious issues such as the relationship with their father[6]; and
    3. (c)
      Third, they showed considerable forbearance during Mrs Fenton’s emotive cross examination.  I did not perceive that their dislike of their mother’s conduct materially affected the reliability of their oral evidence.  It would have been understandable if it had, but to their credit it did not.  The highest it reached was a certain exasperation from time to time.  The same might not be said for the whole of their affidavit evidence.  At times their animus to their mother seemed to me to lead to a partiality for their father in their written evidence.  It seems doubtful he was an easy person to live with himself.  It is this aspect of their evidence which gives rise to my only reservation about their evidence.  However, this aspect of their affidavits did not affect the integrity of their evidence on the key facts and I made some allowance for it in considering their more emotional written statements about their mother.
  3. [25]
    Mrs Fenton’s version of events was put by her in questions in cross examination, in her frequent speeches and in her affidavits.  Quite often, witnesses she was examining agreed in, or did not dispute, her questions which contained direct factual propositions, and in that way some her version which went beyond her affidavits went into evidence.  However, much of what she put or stated was of limited relevance to the issues in the case. 
  4. [26]
    In making findings of fact, I have taken into account the version she gave informally during the trial, whether by questions she asked or unsworn comments she made during the hearing (designated as ‘assertions’ in this judgment).  Ultimately, on the key issues in dispute, she did not assert or put in cross examination matters which credibly impugned the evidence of her daughters and Mr Power. 
  5. [27]
    Further, observing Mrs Fenton through-out the trial, observing the tone and content of her correspondence with Mr Power, noting her frequent inconsistencies in her assertions during the trial and noting her capacity for savage and unfair judgments on others, I formed the firm view that she was not capable of giving a reliable account of events, and was quite capable of convincing herself of the truth of matters which were not true.

The facts

Early family life

  1. [28]
    Mr Fenton and Mrs Fenton married in 1975.  Ms Fenton-Anderson was born in 1978 and Ms Fenton-Leslie in 1979.  In 1980, their parents separated.  Mrs Fenton swore that there was domestic violence at that time and that she obtained sole custody.   Assuming that is correct, there does not appear to have been any repeat of such conduct, nor did the applicants refer to such conduct or refer to having any fear of their father, rather the contrary.  Mrs Fenton swore that Mr Fenton had serious mental health issues.  Again, assuming that was correct, those issues appear to have been managed thereafter.  It was uncontentious, though, that Mr Fenton remained a heavy drinker through his life.
  2. [29]
    At the time of separation, Mrs Fenton lived with her two daughters at 14 Cornhill Street, Kenmore (Cornhill Street).  Mr Fenton moved out of that house when he separated from Mrs Fenton. 
  3. [30]
    Mr and Mrs Fenton divorced in about 1983.  There was a property settlement in which Mrs Fenton received Cornhill Street.  She and her daughters remained there until 1987. 
  4. [31]
    Both applicants recall a close relationship between them and their father over this period.  Although they would have been very young, there was no reason to doubt that evidence.  It was consistent with the evidence of their later relationship with their father.   Ms Fenton-Anderson did not comment on her parents’ relationship in this period.  Ms Fenton-Leslie said that her mother had boyfriends seemingly around this period.  Mrs Fenton said in cross examination that she maintained an intimate relationship with Mr Fenton after their divorce for some unspecified time.  It is unnecessary to make a finding about this.  It might well be, though, that their relationship in this stage was ‘complicated’ (to use a phrase from the zeitgeist), and it is possible the applicants did not know the details given their young age.  However, there was no suggestion that the Fentons lived together under the one roof again for many years after their separation.
  5. [32]
    I mention here Mrs Fenton’s only sworn evidence about her relationship with Mr Fenton.  In her original 25 January 2019 affidavit, she swears that Mr Fenton was the love of her life and that:

During our entire time of separation and divorce we continued as close as possible relationship motivated by me for the betterment of our two infant children …with fortnightly visits and trips to meet as a family and extended family.

  1. [33]
    This is not evidence that they were or lived as a couple, though it appears to relate to the period until 1991, before they again lived under the one roof.
  2. [34]
    In about 1986, Mr Fenton moved to a 10 acre block of land at Kratzke Street, Highfields in the Toowoomba region (the Highfields property).  It appears that Mr Fenton’s work and family roots were in the Downs region.  He built a house there in 1987.  There was no direct evidence as to the source of the funds to buy the land and build the house at Highfields.  Ms Fenton-Leslie said the purchase was with the financial support of Mr Fenton’s parents.  Ms Fenton-Anderson said that it was bought by Mr Fenton’s father.  Mrs Fenton asserted that Mr Fenton senior was wealthy.  Precisely what the source of funds might have been is not clear.  However, on the evidence before me, Mr Fenton had transferred Cornhill Street to Mrs Fenton and did not seem to have a high paying job.  It is probable the funding came from his father.  Relevantly, there was no basis properly to conclude that the funds for the purchase and construction at Highfields came from Mrs Fenton.
  3. [35]
    At about the time the Highfields house was built, Mrs Fenton sold Cornhill Street and bought a house in Unwin Street Highfields, a few minutes’ drive from Mr Fenton’s home.   Mrs Fenton was a school teacher by profession and continued to work in that profession after she moved to Highfields.  For some four years, the family appeared to continue the pattern of before.  The applicants had a good relationship with their father and spent considerable time with him on weekends and holidays.  They lived with their mother during the week.  Their parents lived apart.  Mrs Fenton did not assert or swear to anything specific about the nature of her relationship with Mr Fenton in this period, beyond the evidence noted in paragraph [32] above. 
  4. [36]
    The family’s arrangements changed materially in 1991 however.  The basic fact is not in dispute: in early 1991, Mrs Fenton and the applicants moved out of the house in Unwin Street and into Mr Fenton’s Highfields property.  The dispute is about why.  The applicants both gave evidence that the reason this occurred was that Mrs Fenton had a horse riding accident and that she could not care for the applicants.  They swore their father then took all three in to care for them. 
  5. [37]
    Mrs Fenton never really addressed this in her assertions or her affidavits.  In cross examination, Mr Kelso questioned her about the circumstances.  She denied that she had a riding accident at the time she moved back into the Highfields property.  Beyond that, the issue was not examined by anyone.  Oddly, given her voluble speech making on many subjects during the trial, Mrs Fenton did not give any other explanation for moving into Highfields that I could identify.  The relevant question to resolve for the purposes of these proceedings is whether Mr Fenton permitted her to move into his house to recommence their relationship.  I am not persuaded that he did:
    1. (a)
      I have already said that I generally accept the applicants’ evidence as reliable and truthful.  On this point, they were in agreement as to what motivated the change and Mrs Fenton never really suggested the contrary. Further, the applicants were about 12 and 13 at the time.  They were at an age when they would have been able to understand these events;
    2. (b)
      I found Mrs Fenton’s evidence in cross examination about this distinctly unconvincing and evasive (as was all her evidence in cross examination); and
    3. (c)
      As will be seen, I accept the evidence that the couple lived separate lives at the Cambooya property.  This is consistent with that being the position in the previous years at Highfields.
  6. [38]
    It appears, then, that Mrs Fenton recovered from her injuries within a few months but did not move out of the house.  It might be thought this was explicable by the re-emergence of intimacy with Mr Fenton, but I am not persuaded that it was.  Rather, Mr Fenton’s conduct at this time and thereafter appeared to me to be motivated by a wish to have the applicants living together with him and their mother, for the benefit of his daughters.  It might also be speculated that he felt some sense of obligation to Mrs Fenton and willingness to support her.  As I find below, that was certainly the objective effect of permitting her to live with him and use his properties for her own purposes.
  7. [39]
    So, the family lived together at Highfields for some years.  Mrs Fenton started a horse stud business at the time.  The funds appear to have come from a partial ill-health retirement or redundancy payment of $60,000 she received in about 1993.[7]  She also had funds from the house she received as the property settlement on the divorce.  The close proximity between this event and the riding accident alleged by the applicants is to be noted and is some objective support for the applicants’ explanation for the move to Highfields. She has not done paid work since then. 
  8. [40]
    It is convenient here to deal with the question of when Mrs Fenton became a recipient of the Disability Support Pension (DSP) or its previous incarnations.  Mr Kelso tried to establish this fact in cross examination.  Mrs Fenton’s evidence on this was deliberately evasive.  I do not accept she did not know when she first obtained a DSP type payment.  Her eventual volunteering of about 12 years earlier stuck me as the date she thought most convenient.  The Centrelink documents she tendered showed that the pension identified in those documents had been paid since February 1998, showing her evidence on this issue was wrong.  What is clear is that she did not work in paid employment after about 1991.  Her only source of income was the operation of her horse stud.  There is no evidence that was successful.  Indeed, her present financial circumstances suggest it was unsuccessful, as was contended by the applicants.
  9. [41]
    For about 4 years or so after the move to Highfields, the family lived together.  The applicants were enthusiastic participants in horse related activities.  Their mother shared that interest.  Their father did not.  In about 1995, however, conflict between Ms Fenton-Anderson and Mrs Fenton led to the daughter leaving Highfields and moving to live and work at Marburg Equestrian Centre.  In 1997, Ms Fenton-Leslie also moved into Toowoomba with her father’s support.  The reason she gives was to get away from her mother.  I accept that evidence.  There is no suggestion, even from Mrs Fenton, that Ms Fenton-Leslie would wish to get away from her father.  I do not exaggerate the nature of the conflict between mother and daughter at this stage.  This move occurred at an age where a young person might need some freedom.  Further, Ms Fenton- Leslie accepted that she had a close relationship with her mother in periods up to 2007.  She returned to Highfields in 1998 when she had tenancy problems.
  10. [42]
    Mrs Fenton gave evidence that she made financial contributions to Highfields.  I am not persuaded that she did, at least to any degree which is relevant to these proceedings.  Her evidence on the subject was inconsistent and vague.  She said she put $15,000 into the gardens and $25,000 into some stables.  She also seemed to say that that $25,000 went into buying an expensive trailer.  It was unclear if it was the same or a different $25,000.[8]  Even if she made such contributions, she was living with Mr Fenton for free and running her quixotic horse stud there.  (I say quixotic because the applicants swear that the stud never appeared to have much success and as I have observed, Mrs Fenton’s financial state supports that conclusion.)

Acquisition of Cambooya

  1. [43]
    In about late 1999, Mr Fenton decided to sell Highfields and buy the much larger Cambooya property.  The cause of that decision was contested.  The applicants both gave evidence of Mrs Fenton’s nagging of Mr Fenton about the cancer risk of some electrical infrastructure nearby.  Mrs Fenton asserted the reason was that the property was too small for the horse related activities of the family.  Ms Fenton-Anderson’s oral evidence, however, was that her father informed her that if he bought the larger property, she might return to live with the rest of the family.  This evidence had the ring of truth.  It is consistent with Mr Fenton’s continuous efforts to have his daughters living together with him and their mother.  (I refer again to the evidence from both applicants that although they had rough periods in their relationship with their mother, the relationship had periods of closeness up until about 2007.  Mr Fenton would surely have been aware of that).  It is also consistent with his support of Mrs Fenton’s ultimate efforts to sub-divide blocks nearby for each of the applicants to build and live on (discussed further below).
  2. [44]
    Mr Fenton’s plan of having both daughters living at Cambooya was successful but only for a short while.  Ms Fenton-Anderson returned to live in the house at Cambooya with the rest of the family.  There appears to have been no suggestion of Mrs Fenton leaving.
  3. [45]
    A great deal of work was done to put the property into good condition. Mr Fenton’s role was mowing (of which there was a good deal).  He also funded expensive renovations of the house for some $200,000.  Both girls worked on improving the property, particularly Ms Fenton-Anderson. They both complained about the lack of contribution from their mother.  They say, and I accept, that she was on a disability pension by this time.  I think it likely that Mrs Fenton was more active in giving orders to others than in doing the work required either to renovate the property or to conduct her stud business.
  4. [46]
    Importantly, both applicants gave evidence, both in statements and in oral evidence, that the Cambooya property was set up from the very start in a way which had Mr Fenton living entirely separately from Mrs Fenton.  He lived downstairs, she lived upstairs.  They did not share meals or socialise except for formal family occasions: birthdays and Christmas.  The daughters never saw any affection between them.  One or both of the applicants were at, or about, the Cambooya property fairly constantly until the last months of Mr Fenton’s life.  They did not observe that this separate living ever changed.   I accept that it did not.
  5. [47]
    I see no basis to infer that Mrs Fenton made any significant financial or personal contribution to the acquisition of or renovation and maintenance of the Cambooya property.  She certainly benefitted from conducting her horse stud business from the property and from living there rent free.
  6. [48]
    Both of the applicants had left Cambooya within a few years but continued to live nearby and to visit the property frequently.  By about 2005 both were in permanent relationships with their now husbands.  Both were living locally to Cambooya.

The subdivided lots

  1. [49]
    In about 2005, Mrs Fenton conceived and pushed through the idea of sub-dividing family blocks from the Cambooya property (no-one disputed her pivotal role in this).  Mr Power acted for Mr Fenton at the time and he recognised Mrs Fenton’s role in promoting the project.  Despite some difficulties with planning approval, the properties were ultimately split off on various conditions.  Each of the applicants was transferred one of the blocks.  They gave evidence that they paid for the blocks, some $40,000.  Both built houses on the lots. 
  2. [50]
    Ms Fenton-Leslie and her husband did not live on their block for long.  Her relationship with Mrs Fenton had decayed from a series of incidents and in about 2008, she and her husband and two small children moved to the Sunshine Coast.  They sold their house in about 2010. Ms Fenton-Leslie had no contact with her mother for the next two years.  She did have contact with her father.  She said he spoke negatively about her mother and expressed a wish to sell Cambooya and move back to a house in Highfields.
  3. [51]
    Ms Fenton-Anderson continued to live on in her house on her sub-divided block and does so to this day. 

April 2010: The Will

  1. [52]
    There are two pieces of evidence which might be thought to be consistent with Mr and Mrs Fenton being in an intimate relationship.  One is the Will.  Both applicants gave evidence that they did not know anything about the Will when it was made.  Indeed, they did not know what it provided until their father died, except that they were told just before their father died by Mr Power that the Will took care of their mother.
  2. [53]
    Although Mr Power’s firm prepared the Will, he did not give evidence about the circumstances of its making or what, if anything, Mr Fenton might have said about his intentions in making a Will so favourable to Mrs Fenton and unfavourable to his daughters.  Mrs Fenton also gave no evidence about this nor made any assertion about it during the hearing.  Mrs Fenton’s trial submissions speculated as to Mr Fenton’s reasons, but it was no more than that.
  3. [54]
    The Will was made on 22 April 2010.  Its operative provisions were as follows:
  1. I GIVE DEVISE AND BEQUEATH all of my household chattels, contents of my home and any motor vehicles I may own at the date of my death to my former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
  1. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to any Superannuation Fund of which I may be a member at the date of my death including all bonuses and interest earned thereon TO my Trustees upon the following trusts namely:-
  1. (i)
    AS TO a three-quarters share thereof to my said former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
  1. (ii)
    AS TO a one-eighth share thereof to my Daughter TONI LEIGH DELORES FENTON-LESLIE for her sole use and benefit absolutely.
  1. (iii)
    AS TO the remaining one-eighth share thereof to my Daughter PETA DAVINA ALEXANDRA FENTON-ANDERSON for her sole use and benefit absolutely.
  1. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold to my Trustee UPON the following Trusts namely:-
  1. (i)
    to permit my Former Wife SUZANNE MICHELLE FENTON to reside therein and to use and occupy the same rent free for her lifetime or until her remarriage or until she is no longer capable of residing therein or using and occupying the same owing to some physical or mental infirmity or illness which must be certified to by a properly qualified medical practitioner or until she shall by writing under her hand indicate an intention to my trustees to no longer to reside therein and to use and occupy the same whichever shall first occur;
  1. (ii)
    I DIRECT that whilst my Former Wife SUZANNE MICHELLE FENTON resides in and uses and occupies the said land and dwelling house she shall make payment of all rates, taxes, insurance premiums, maintenance costs and charges and other outgoings which may relate to the said land and dwelling house and that she shall keep the same in good and tenantable repair fair wear and tear expected;
  1. (iii)
    should my Former Wife SUZANNE MICHELLE FENTON during her lifetime and provided that she has not then remarried be unable to reside in and use an occupy my said land and dwelling house because of some physical or mental infirmity or illness or because of her age and as a result of such infirmity or illness or because of her age she requires nursing home residence or alternatively she wishes to move into an aged persons hostel or other aged persons accommodation, then I DIRECT that my Trustee will at that time effect the sale of my said land and dwelling house and out of the net sale proceeds after providing for payment of all costs, commission and expenses in regard to such sale, make payment of any accommodation bond or other deposit required by any nursing home or other aged persons accommodation facility to enable residence in or occupancy of that facility by my Former Wife SUZANNE MICHELLE FENTON and out of any balance then remaining that my Estate will make payment of any periodical payments required for the residence or occupancy of my Former Wife SUZANNE MICHELLE FENTON in such nursing home or other aged persons facility until her death.
  1. (iv)
    UPON the death of my Former Wife SUZANNE MICHELLE FENTON or UPON her remarriage or upon her vacating my said land and dwelling house because she is no longer capable of residing therein or using and occupying the same owing to some physical or mental infirmity or illness or following her indication of an intention to my Trustees to no longer reside therein and to use and occupy the same and in circumstances where the provisions of subclause 5(iii) of this my Will do not become effective then to transfer my said land and dwelling house UNTO my trustees upon the following trusts namely:-
  1. (a)
    as to a one half share thereof to my said Former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely;
  1. (b)
    as to a one quarter share thereof to my said Daughters TONI LEIGH DELORES FENTON-LESLIE and PETA DAVINA ALEXANDRA FENTON-ANDERSON in equal shares as tenants in common for their respective use and benefit absolutely;
  1. (c)
    as to the remaining one quarter share thereof upon trust for such of them my grandchildren as shall survive me and shall have attained or shall live to attain the age of Eighteen (18) years in equal shares as tenants in common for their respective use and benefit absolutely.
  1. (v)
    PROVIDED HOWEVER that should the provisions of subclause 5(iii) of this Will become effective THEN I DIRECT that my Trustees shall upon the death of remarriage of SUZANNE MICHELLE FENTON make payment of the net balance then remaining out of the sale proceedings of my said land and dwelling house including the amount of any refund of any accommodation bonds that my Estate may have paid on account of my Former Wife SUZANNE MICHELLE FENTON for any nursing home or aged persons accommodation UNTO my trustees upon the following trusts namely:-
  1. (a)
    as to a once half share thereof to my said Former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely;
  1. (b)
    as to a one quarter share thereof to my said Daughters TONI LEIGH DELORES FENTON-LESLIE and PETA DAVINA ALEXANDRA FENTON-ANDERSON in equal shares as tenants in common for their respective use and benefit absolutely;
  1. (c)
    as to the remaining one quarter share thereof upon trust for such of them my grandchildren as shall survive me and shall have attained or shall live to attain the age of Eighteen (18) years in equal shares as tenants in common for their respective use and benefit absolutely.
  1. I GIVE DEVISE AND BEQUEATH the rest and residue of my real and personal estate of whatsoever nature or kind and wheresoever situate of which I may die seized or possessed or over which I may have any power of disposition or control UNTO my Former Wife the said SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
  1. [55]
    The Will leaves all Mr Fenton’s chattels (thought at that time to be worth a considerable sum), 75% of his superannuation, and most of the benefit of Cambooya to Mrs Fenton.  The provisions relating to Cambooya are a little ambiguous.  I construe the provisions as follows:
    1. (a)
      Mrs Fenton has a right to reside at Cambooya until she remarries or is no longer capable of living there, but the executors can only reach that conclusion on certification by a doctor that that is so;
    2. (b)
      Mrs Fenton has to pay the sums and do the work identified 5(ii) in the Will;
    3. (c)
      If Mrs Fenton becomes incapable of living at Cambooya and wants to move into aged care, the trustees are to sell Cambooya and use the funds to pay an accommodation bond and the balance to pay any ongoing accommodation costs and on death or remarriage, the remaining fund is to be paid a half to Mrs Fenton (or presumably her estate), a quarter to the applicants and a quarter to Mr Fenton’s grandchildren; and
    4. (d)
      If Mrs Fenton remarries, leaves the property because she is not capable of living there or leaves by choice without seeking to move into aged care accommodation, then the trustees must sell the property and give a half of the proceeds to Mrs Fenton, a quarter to the applicants and a quarter to the grandchildren.
  2. [56]
    There are a couple of ambiguities in these provisions.  The most significant is what happens if Mrs Fenton does not make the payments and meet the obligations imposed by clause 5(ii). The various contingency provisions in 5(iii) to 5(iv) do not in terms apply to that situation.  Nor does clause 5(i) provide for that circumstance as a condition on the right to reside.  On the other hand, a construction of the Will which permitted Mrs Fenton to not comply with clause 5(ii) without a consequence should be resisted because it would be apt to frustrate those other provisions.  It could result in wasting of the asset or compulsory sale for unpaid rates or taxes.  
  3. [57]
    No submissions were made on this aspect of the proper construction of the Will nor how it would be likely to apply into the future (for the purposes of identifying the provision for the applicants under the Will).  As to the former matter, in my view, if Mrs Fenton failed in a consistent and substantial manner to meet the obligations under clause 5(ii), on the proper construction of the Will, the provisions of clauses 5(iii) or 5(iv) would apply.  That is, if in that situation, Mrs Fenton wanted to move into aged care accommodation, clause 5(iii) would apply.  Otherwise, clause 5(iv) would apply.  I deal with the latter matter in paragraphs [158][164] below.
  4. [58]
    There is no specific evidence as to the nature of the relationship between Mr and Mrs Fenton around April 2010.  The evidence of the applicants as to why their father made the Will in those terms is speculative and irrelevant.  The Will leaves no room to question, however, that Mr Fenton believed at the time that he should provide for Mrs Fenton’s financial security.  He later came to resile from that position, but that was the position at 2010.  Equally, however, neither applicant refers to any apparent change in the relationship over the period they observed their parents under the same roof.
  5. [59]
    The Will does not refer to Mrs Fenton with any affection.  It uses the formal term “my Former Wife”.  Of course, the phrase might just be one adopted by the drafter from a precedent. It is not a major point, but it is noticeably distant in tone if the suggestion was that this provision was motivated by an on-going de facto relationship.  
Attempts to sell the property 2012 to 2017>
  1. [60]
    From about 2012, both applicants say their father expressed real animus towards their mother and her horses and meeting their expenses and said that he wanted to sell the Cambooya property.  Ms Fenton-Anderson gave this evidence:[9]

21.3 Dad appointed Earle Norris Real Estate to sell the property. There were maybe 3 house inspections – each proving pointless. Not because no-one turned up, but because when interested buyers turned up, Mum would run out and abuse them. She’d tell them to “fuck off, the place’s not for sale”, “get of [sic] my fuckin property” or “I’m not going anywhere, you’ll have to carry me off this place” and various other words to that effect. All said with the direct intention of thwarting a sale, which she was successful at doing.

21.4 In the end, the agent said to Dad that he wasn’t prepared to waste his time anymore and withdrew his services. Dad then got another agent, but the same thing happened again, and again. Dad went through 5 agents between 2012 and 2017.

21.5 It was also frustrating for John and I, because whenever Dad would organise a [sic] inspection with an agent and some potential buyers, we’d spend a lot of our time and money cleaning and repairing fences, repainting the patios, revamping the gardens, cleaning inside the house and much more work around the property. This work also included cleaning out and gerniing [sic] the block of ten stables, which Mum had used and never cleaned out, leaving layer upon layer of horse manure. This, in itself, took John nearly three days solid to clean out.

  1. [61]
    I accept this evidence.  This is compelling evidence of the state of the relationship between Mr Fenton and Mrs Fenton at that time.  Aspects of this evidence might not be in strictly admissible form.  It is unclear for example, whether Ms Fenton-Anderson was present for the discussion in paragraph 21.4 or is recounting a hearsay version.  However, it is tolerably clear that the key facts in this passage were likely to have been seen or heard by her directly.  I draw that inference. 
  2. [62]
    Ms Fenton-Anderson goes on to detail her mother’s other conduct to frustrate a sale of Cambooya with some particularity.[10]  I accept this evidence.  It was not contradicted by other evidence nor by assertion from Mrs Fenton.  Further, the conduct reflected a sense of entitlement in relation to Mr Fenton’s financial support which was evident from Mrs Fenton’s reliance on him since 1991 and her conduct in relation to these proceedings.  In that regard, as the adjournment judgment discloses, she has resisted the resolution of these proceedings with determination and considers that the applicants simply have no call at all on their father’s estate beyond the Will.  That submission was made again in the November 17 material.
  3. [63]
    Another consideration which supports the credibility of Ms Fenton-Anderson’s account is Mr Fenton’s conduct in the last months of his life.

Carers of Mrs Fenton

  1. [64]
    From about 2015 to 2017, first Ms Fenton-Leslie then Ms Fenton-Anderson worked as their mother’s paid carer.  That coincided with periods of marital discord for both applicants.  Ultimately, Ms Fenton-Leslie moved back in with her husband and commuted regularly to care for her mother.  Ms Fenton-Anderson took over in 2017.  Neither found the work easy or successful.  However, both said, and I accept, that their father did not want to undertake the task, even though he was capable of doing so over that period.  They also speak of their father’s increasing hostility towards their mother over this period.
  2. [65]
    The applicants speak of this period being particularly difficult, caring for their mother and doing considerable work caring for her horses.  I accept that evidence.  Mrs Fenton was on her own account extremely disabled with medical problems.  She could not care for the horses and they did not care for themselves.  She had no money to pay for their care and there is no evidence the business was a success.  I accept the horses were maintained by the applicant’s labour and their father’s money.
  3. [66]
    Ultimately there was a falling out between Mrs Fenton and Ms Fenton-Anderson in late October 2017.  The circumstances of that falling out were disputed between them.  Ms Fenton-Anderson alleged that Mrs Fenton confronted her and threatened her in front of her daughters and threw a metal object at her.  Mrs Fenton suggested in cross examination that no such event occurred.  I disagree.   There is a contemporaneous record of her state at that time (29 October 2017) created by the Toowoomba Hospital where she was assessed by the Emergency Department.  There is a contemporaneous Mental Health Services Triage document in evidence.[11]  Those documents disclose that she was in a highly agitated state that day.  They also disclose that she reported that she “Identifies many stressors at home with ex-husband requiring care and close to dying secondary to alcoholic liver disease.  Reports ex-husband has paranoid schizophrenia and often harms her/threatens her life”.  This reporting of violence is directly inconsistent with the evidence of the applicants and the evidence and assertions of Mrs Fenton.  The assertion that Mrs Fenton was caring for Mr Fenton is directly inconsistent with the reality that she was on the DSP and required the care of her daughters daily for her numerous problems.  It was also inconsistent with the evidence that Mr Fenton was not diagnosed with his terminal condition until some weeks later.  Her account of this day is not reliable.  It is clear however that there was some kind of dramatic confrontation.  I accept Ms Fenton-Anderson’s version.
  4. [67]
    I also note that Mrs Fenton made clear admissions of the separate living arrangements in the house: reporting self-contained living arrangements.  This I find to have been correct.  This reporting reflects in my view, Mrs Fenton’s capacity to state whatever appears to her interests to assert, whether correct of not.  
  5. [68]
    On that same day, Mr Fenton left Cambooya to stay with Ms Fenton-Leslie.  He did so under Police supervision and in obvious fear of Mrs Fenton.
The cards and my conclusion on the relationship>
  1. [69]
    How, one might ask, do my findings that there was no intimate relationship between Mr Fenton and Mrs Fenton sit with Mrs Fenton’s cards?  Some observations should be made about their content which favour some kind of close relationship:
    1. (a)
      They cover a period up to 2017, which according to the other evidence was a period where Mr Fenton was seemingly at his wits end with Mrs Fenton; and
    2. (b)
      They include birthday, Christmas and even Valentine’s Day cards, including Valentine’s Day cards with romantic imagery (is there any other kind though?).
  2. [70]
    Some explanation exists for the birthday and Christmas cards in the evidence of each of the applicants under cross examination by Mrs Fenton that it was common for the family to celebrate those festivals together when occasion allowed.  Card giving was, according to Ms Fenton-Anderson, something her father always did.  One can imagine him doing so as part of the family festival.  That does not necessarily explain all the cards, nor the Valentine Day’s cards.
  3. [71]
    What is notable in all the cards, however, whatever the greeting card sentiments, was the lack of any form of intimate or loving salutation written by Mr Fenton.  The most common salutation was for Mr Fenton to express the hope that Mrs Fenton would be healthier in the future.  One could well imagine him saying that, given her health history.  The only exception is his comment in the 2016 birthday card that “I do care about you in my strange way”.  That he did care about her was obvious from the terms of the Will.  However, it is not really the salutation of a person in a loving or intimate relationship.
  4. [72]
    It should also be noted that around the time he made the Will he was involved in another relationship, which Mrs Fenton still expressed hostility about at the trial, evident in the tenor of her cross examination relating to that subject. 
  5. [73]
    Ultimately, I find that there was no de facto or other intimate or personal relationship between Mr Fenton and Mrs Fenton from at least the late 1980s.  Mr Fenton plainly felt some kind of obligation to Mrs Fenton to provide for her, which he gave effect to by letting her use Cambooya, by paying some bills for her stud business and by making provision for her in the Will.  And in my view, though he frequently deeply resented her, for that reason he chose not to eject her from his house or his life until his crisis in late 2017.  It is to those events we now turn.
Events leading up to Mr Fenton’s death>
  1. [74]
    The drama involving Ms Fenton-Anderson and her mother on 29 October 2017 (see paragraph [66] above) precipitated another drama involving Mr Fenton.  The following is the account given by the applicants.  I accept their account.  
  2. [75]
    Following the incident with Ms Fenton-Anderson, Mrs Fenton went back to her house.  Mr Fenton soon came down to his daughter’s home and told her he did not want to go back home because Mrs Fenton was in a rage.  Ms Fenton-Anderson arranged for Ms Fenton-Leslie to come and collect their father and take him to her home.  Ms Fenton-Leslie did so.  When she arrived, the police were in attendance.  Mr Fenton went with the police to his home and packed and left with Ms Fenton-Leslie.  Mrs Fenton was abusing him as an alcoholic and schizophrenic (as she reported to the Hospital, it may be recalled).
  3. [76]
    Mr Fenton returned to Cambooya a couple of weeks later.  His stay was brief.  Just after Christmas, Mrs Fenton said he was behaving strangely.  He was taken to hospital and on 2 January 2018, he was diagnosed with advanced cancer.  While in hospital, Mr Fenton asked the applicants to obtain his will, Enduring Power of Attorney and Advanced Health Directive.  They went to the Cambooya property and found the Will only.  They contacted Mr Power.  He prepared an Enduring Power of Attorney for Mr Fenton.  It made the applicants his attorneys.  Mr Fenton executed it.
  4. [77]
    While there was some ambiguity as to where this document was signed, I have no reason to doubt that it was prepared by Mr Power at Mr Fenton’s direction and that Mr Fenton had capacity to make it.  Apart from the medical assessment,[12] I place reliance on Mr Power’s assessment at the time.  Mr Power had known Mr Fenton for many years.  He was in a good position to judge the cognitive powers of the person before him as compared to the person he had dealt with over previous years.[13]
  5. [78]
    Mr Fenton did not want to return to his own home.  He never did.  He asked to return home with Ms Fenton-Leslie.  She agreed.  Mrs Fenton made numerous calls on his telephone, leaving abusive messages.  He refused to answer to take calls.  He had no more contact with her until he died. 
  6. [79]
    A few weeks later, Mr Fenton told Ms Fenton-Leslie that he wanted to make a new will.  She arranged for him to see a solicitor nearby her home on the Sunshine Coast, rather than in Toowoomba.   Mr Fenton saw a solicitor, Mr Douglas.  The applicants were not present.  Mr Fenton gave Mr Douglas instructions to prepare a will leaving his estate to the applicants.  The diary note demonstrates that Mr Fenton accurately stated his main assets (though he did not specifically mention the chattels) and the persons he wished to benefit.  Mr Douglas asked for a medical assessment of capacity.  There is nothing in the note or Mr Douglas’ later email to suggest that Mr Douglas’ impression of Mr Fenton was that Mr Fenton did not understand what he was doing.  His concern about capacity appears to have arisen from the kind of the medical condition suffered by Mr Fenton and the effect it might be having.  It is to be recalled that Mr Douglas did not know Mr Fenton.  Mr Douglas required Mr Fenton to obtain a medical assessment before Mr Douglas would prepare a will.  
  7. [80]
    The appointment with Mr Douglas was on 13 February 2018.  The appointment for a capacity assessment was made for 19 February 2018.  It is wrong to suggest that there was any determination by a doctor that Mr Fenton did not have capacity at that time.  What occurred is this:

22.60 On Monday 19 February 2018, I took Dad to his Doctor’s appointment. He seemed affected by the extremely hot weather we were having. Walking from the car into the Doctor’s surgery was a struggle.

22.61 Dad was not feeling well enough to complete the mental test at this time. He repeatedly apologised to me for wasting my time and said he was so sorry that he had let this happen. I assured him that it was okay and that I didn’t want him to worry about it.

22.62 Without the Doctor’s letter, Dad knew that he would be unable to sign his new will. Dad told me “I’m so sorry. You’ll need to fight her”.

22.63 Dad also said that he wanted Peta and I to access the money he had in his savings account to pursue legal action to get the property sold and to carry out his wishes. He said “you [Peta and I] need to use the money to have my previous will made void”.

  1. [81]
    I am conscious again, that the form of this evidence leaves a little to be desired. The key statement in paragraph 22.62 first sentence, speaks of what was known by Mr Fenton (the same might be said of the first sentence of paragraph 22.61).  His state of mind is of course something which can be inferred from evidence of things told to him or said by him.  The evidence is not cast in that form.  However, there is admissible evidence from the second sentence from which one can properly infer, taken with the evidence from Mr Douglas, that Mr Fenton formed the view that without the assessment he could not proceed with the new will.     
  2. [82]
    That raises the question of why he abandoned the task.  He could have tried another day for an assessment.  He could have approached Mr Power to assist.  It might be that he was just too ill to make any further efforts.  That is what he said to Ms Fenton-Anderson. That is probably likely given that he died just four days later.   That is the conclusion I reach.  I do not think it reflected an ambivalence about changing the Will.
  3. [83]
    The last significant event to deal with is the transfer of Mr Fenton’s cash holdings to his daughters.  Again, the central facts are clear: just prior to his death, $40,000 was transferred out of Mr Fenton’s Commonwealth superannuation account: half to each applicant.  Ms Fenton-Leslie’s evidence as to how this transfer occurred appeared at first inconsistent.  In her first affidavit she says that she transferred the money.  In evidence she said the transfer was done on phone banking and that her father made the transfer.  Ultimately, however, I do not think this point of detail is material.  The gravamen of the evidence is consistent and the cross examination on it was detailed.  The real issue is that which was put to Ms Fenton-Leslie by Mr Collins: did the applicants just help themselves to Mr Fenton’s funds?  She denied that.  I accept that.  Not only because I have accepted the applicants generally as witnesses of truth, but also because the conduct was consistent with Mr Fenton’s behaviour towards Mrs Fenton around that time, particularly his instructions to change the Will and his evident belief that she was going to have to be ‘fought’.
  4. [84]
    This subject was the cause of much agitation by Mrs Fenton both before trial and during the trial.  It is clear she considers these events to be indicative of exploitation of Mr Fenton by the applicants.  I reject that view.   
  5. [85]
    Mr Fenton died the next day, on 23 February 2018.

General principles

  1. [86]
    The applicants apply for further provision from their father’s estate under s. 41(1) Succession Act 1991.  That section provides:

41 Estate of deceased person liable for maintenance

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

  1. [87]
    The section dictates, and the authorities confirm, that what is required is a two-stage approach.  First, the Court must determine the so-called jurisdictional question: that is (in this case), whether by the terms of the Will, adequate provision is not made for the proper maintenance and support of the applicants, as children of the deceased. Second, if that jurisdictional question is determined in favour of the applicants, then the Court may exercise a discretion to order that such provision as the Court thinks fit be made out of the estate for one or both of the applicants.[14]
  2. [88]
    The jurisdictional issue is determined as at the date of death.  The discretion falls to be exercised as at the date of the order.  However, the assessment of the two matters may overlap.
  3. [89]
    The primary considerations which arise in applying the provision were conveniently summarised by Martin J in Darveniza v Darveniza [2014] QSC 37 (footnotes omitted): 

[16] From those, and other, decisions the following may be drawn:

  1. The court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.
  2. When considering the proper level of maintenance, the following, at least, should be taken into account:
  1. (i)
    the applicant's financial position,
  2. (ii)
    the size and nature of the deceased’s estate,
  3. (iii)
    the totality of the relationship between the applicant and the deceased,
  4. (iv)
    the relationship between the deceased and other persons who have legitimate claims upon his or her bounty,
  5. (v)
    present and future needs including the need to guard against unforeseen contingencies.
  1. The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably have expected to live in the future.
  2. “Maintenance” may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live.
  3. “Support”, similarly, may imply provision that exceeds a person’s bare needs. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote “advancement” would ordinarily be provision beyond that for the mere necessities of life. It is not difficult to conceive of a case in which it might appear that sufficient provision for support and maintenance had been made, but that in the circumstances, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education. This might be the case where, for example, a promise had been made, or where a claimant reasonably held an expectation that such provision would be made.
  4. The totality of the relevant relationship would include:
  1. (i)
    any sacrifices made or services given by the claimant to or for the benefit of the deceased;
  2. (ii)
    any contributions by the claimant to building up the deceased's estate; and
  3. (iii)
    the conduct of the claimant towards the deceased and of the deceased towards the claimant.
  1. Any such sacrifices, services or contributions (whether described as giving rise to a moral duty/moral claim or not) are a relevant consideration (as part of the totality of the relationship between the claimant and the deceased), but are neither a necessary nor a sufficient condition for the making of an order under the Act.
  2. A claimant may fail to establish that the disposition of the deceased’s estate was not such as to make adequate provision for his or her proper maintenance, etc, even though no provision was made for him or her in the will.
  3. The determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance, etc, of the claimant will always, as a practical matter, involve an evaluation of the provision, if any, made for the claimant on the one hand, and the claimant’s ‘needs’ that cannot be met from his or her own resources on the other.
  4. The adequacy of the disposition is assessed as at the time of the testator’s death. Any order that might be made is considered in the light of the applicant’s circumstances at the time of the trial.

[17] Care must be taken not to extend the idea of a “moral claim” beyond the language of the statute. Section 41 does not give a court carte blanche to remake a will in a way that may appear to be more just. It is a power that should be exercised with the restraint dictated by the terms of the section. The predicament in which a court finds itself has been commented upon many times. In Pontifical Society for the Propagation of the Faith v Scales Dixon CJ observed that it was never intended by the legislation that “freedom of testamentary disposition should be so encroached upon that a testator's decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”. Consideration of these applications must always proceed with the understanding that the capacity of a court to make an assessment is necessarily limited, as the deceased cannot explain his or her reasons for the disposition of the estate or respond to the claims of an applicant.

[18] While the terms “moral duty” and “moral claim” have been used as shorthand expressions in the consideration of applications for provision they must be used with care. As Gleeson CJ observed in Vigolo:

“The descriptions of references to moral duty or moral obligations as a gloss upon the text was not new. In 1956, in Coates v National Trustees Executors and Agency Co Ltd, Fullagar J said: ‘The notion of “moral duty” is found not in the statute but in a gloss upon the statute. It may be a helpful gloss in many cases, but, when a critical question of meaning arises, the question must be answered by reference to the text and not by reference to the gloss.’” (citation omitted)

  1. [90]
    In determining both the matters, the Court approaches the statutory tests from the perspective of the wise and just testator, rather than the fond or foolish testator.[15]  Care must be taken, however to apply this approach with modesty and bearing in mind the full history of relevant relationships and that there is a range of responses to given facts which could be considered wise and just. 
  2. [91]
    This applies particularly to the first stage of the process where a Will is involved, where the Court must sit in judgment on the provisions made by the deceased.  In my view, it is in this context where reasons given by a testator for making a will in a certain form are rationally probative.[16]  The wisdom and justice of the provisions of a will might be cast in a quite different light where the Court has identified for it, by reference to the reasons taken into account by the deceased, matters which might not be obvious at trial and which are directly relevant to assessing the provisions against the statutory standard.

Size of the estate

Assets

  1. [92]
    As at Mr Fenton’s death, the evidence before me suggests his estate contained the following material assets:
    1. (a)
      The Cambooya property;
    2. (b)
      Cash of about $6,000;
    3. (c)
      A 2007 Ford Territory vehicle;
    4. (d)
      Antique furniture.

Cambooya

  1. [93]
    The value of the Cambooya property was not the subject of valuation by an expert valuer.  However, evidence was tendered by real estate agents experienced in the area identifying its value at trial as $1,050,000 to $1,150,000.  The same agents had previously valued the property as at April 2019 at $1,000,000 to $1,100,000.  Given that stable value and that Mr Fenton died about a year before the 2019 valuation, I consider that a conservative valuation of Cambooya at death and now is $1,000,000 to $1,100,000.  For the sake of adopting a specific figure for calculation purposes, I will adopt $1,050,000.  There was some suggestion by Mrs Fenton that the property was worth considerably less than that based on asserted lower offers made.  I do not consider, however, that the market was property tested at any time because of her obstruction of the sale process.  No admissible evidence was given of any other figure in any event.  Further, the assessment at the date of trial appears rationally consistent with the comparable sales included in the agent’s reports.[17]

Antiques

  1. [94]
    There are many colonial antiques which are located in the house at Cambooya.   Ms Fenton-Leslie swore they were valued at $350,000 but relied for that assertion on a valuation in 2004 exhibited to her affidavit.  On my reading, that valuation values the furniture at $84,090.00.  I could not find any evidence to sustain the higher figure.
  2. [95]
    Mr Power in any event obtained his own valuation from a local dealer, who valued the antiques in the range $28,650 to $29,550.  It appears the same furniture was valued as in 2004[18] and that so far as Mr Power has ascertained, it is still at the property.  The drop in value is obviously much less spectacular once the seemingly correct figure is identified for the 2004 valuation, though it is still a large fall.  The evidence suggested that market for that kind of furniture has significantly dropped.
  3. [96]
    The valuation obtained by Mr Power was from a local dealer.  I have no reason to doubt the valuation.  I adopt the figure of $29,000 for the antiques both at death and at trial.

The Ford Territory

  1. [97]
    Ms Fenton-Leslie estimated the value of this at $10,000.  It is now 13 years old.  It will pass in the ordinary course to Mrs Fenton under the Will.  She appears to have it in her possession.  It is irrelevant for the purposes of this proceeding.  

Other items

  1. [98]
    Ms Fenton-Leslie also said in her initial affidavit that there were personal items and chattels worth $70,000 and tools in a shed worth $5,000.  No evidence was led to sustain the first.  I am not persuaded any such valuable assets exist other than the antiques. The second is irrelevant, even if true, to the calculations required in this proceeding. 

Debt due from Ms Fenton-Anderson

  1. [99]
    Mrs Fenton’s affidavits contain an allegation that Ms Fenton-Anderson owed her father some $23,000[19] arising out of payments he made to Ms Fenton-Anderson’s account when she and her husband were having difficulties with their mortgage.  Mrs Fenton-Anderson by her affidavit evidence denied any such debt.  The matter was not further examined at trial.  Ms Fenton-Anderson is better placed to know the state of any loan she had with her father than Mrs Fenton.  I have also said that I generally accept her evidence and do not accept Mrs Fenton’s evidence.  Mrs Fenton also swore that evidence from Mr Colin Walker (apparently an accountant) would be provided. None was.  I am not persuaded that any such liability is established.  Even if it were, it would be a modest benefit in the scheme of this matter.  Mr Power said that though he asked for evidence of this alleged debt, it was never provided.
  2. [100]
    There also seems to be a suggestion in Mrs Fenton’s affidavit that she is personally owed money which she lent to Ms Fenton-Anderson.[20]   I am far from persuaded any such debt exists. The evidence is vague, the amount is vague and the source of any such loan is unknown given her financial position. It would in any event be an asset of Mrs Fenton.

Liabilities

Date of death

  1. [101]
    There were no material liabilities at the date of death.  Cambooya was unencumbered and there were no loan facilities.  There might have been day to day liabilities totalling a few thousand dollars.[21]

At judgment

  1. [102]
    Mr Power identified external liabilities and payments at the date of trial in the amount of $14,983.34.[22]  This excluded an amount for funeral expenses identified as disputed by Mrs Fenton.  In submissions, the executors concede that those expenses should be reimbursed to the applicants in the amount of $9,704.37.  
  2. [103]
    The largest liabilities relate to the costs of administration and of this proceeding.
  3. [104]
    The executors estimate their costs and expenses arising out of the proceedings, including counsel’s fees, at some $120,000.  That seems a substantial sum given the limited material filed.  However, the material also demonstrates that the manner in which Mrs Fenton conducted herself in response to the administration and the litigation was apt to add significantly to costs.[23]  There will be further costs through to completion of the proceedings and the administration, particularly if Mrs Fenton continues to cause cost by her manner of participating in the proceedings and the administration.   
  4. [105]
    There are two other amounts necessary to estimate for the purposes of resolution of this proceeding:
    1. (a)
      The applicants’ total costs and disbursements up to the end of the proceedings are about the same at some $120,000, although some $13,000 was comprised in costs ordered to be paid by Mrs Fenton as explained in paragraph 7(d) of the adjournment judgment.  So far as costs of the proceedings are concerned, therefore, the sum I adopt is $105,000. 
    2. (b)
      In the event it is necessary that the Cambooya property be sold, the net proceeds is a relevant figure.  In that case, the applicants and executors agree that costs of sale will be not more than about $60,000 (though it might be less).

Conclusion on net estate

  1. [106]
    The below table sets out my conclusions on the net estate at death and now (excluding legal costs and administration costs of the proceeding and generally):

Net assets and liabilities

 

Assets

Date of Death

Date of Order

Cambooya property

$1,050,000

$1,050,000

Cash

$6,286.87

$6,286.87

Antiques

$29,000

$29,000

Liabilities

  

Funeral costs

-

$9,704.37

Costs of sale

-

$60,000

External liabilities & payments

-

$14,983.34 

Assets

$1,085,286.87

$1,085,286.87

Liabilities

-

$84,687.71

Net Estate

$1,085,286.87

$1,000,599.16

Ms Fenton-Leslie as applicant

Personal and financial circumstances

  1. [107]
    I accept as accurate the summary of Ms Fenton-Leslie’s personal and financial circumstances as articulated by Mr Collins and Mr Kelso in their submissions. Mr Collins summarises her general personal and financial circumstances as follows:
  1. Toni is currently aged 41 and was 38 when the deceased died. She is married to Corrie Leslie, who is aged 43. They presently live together in rented accommodation in Tewantin.
  1. …She is married to Corie and have two children aged 18 (recently finished high school) and just turned 17 (final year of high school). The two (2) children are in good health. They do not have private health insurance
  1. She deposes to a close and loving relationship with the deceased through her life… 
  1. Toni and her husband built a house in 2007 and commenced living on the subdivided eight (8) acre property. However, they soon thereafter moved to the North Coast and rented out the house at the farm for 6 months before plumbing issues arose. The tenants were removed to make the repairs. They had the financial stress of the mortgage and the rental so sold their farm property in 2010 for $525,000.00. They continued to rent a property a Kenilworth.
  1. Toni did separate from her husband (for 6 months) and moved back to the property in 2015 to become the carer for her mother.
  1. When Toni reconciled with her husband she started doing a ‘week about’ between the property and attending to Michelle and where they lived at Tewantin. They continue to reside at Tewantin in the rental property but advised in oral evidence they would like to purchase a property.
  1. Toni worked at Aldi as at the date of death. She continues to work there and earns $500.00 net pet week. Corie earns approximately $85,000 net per year. Toni has a few thousand in superannuation and Corie has $80,000.00. They have $10,000.00 to $20,000.00 in savings.
  1. [108]
    Mr Kelso further details Ms Fenton-Leslie’s health and financial status as follows:
  1. Toni was diagnosed in 2003 with Systemic Lupus Erythematosus (an auto-immune disease) and is presently unable to undertake work in excess of what she is already undertaking.
  1. Toni often suffers severe bouts of fatigue and is prescribed chemotherapy medication. Toni has been on constant medication prescripts for the diseases since 2004.

  1. They have liabilities as follows:-

(a) car loan balance of $18,969.51

(b) personal loan of $7,582.54; and

(c) line of credit balance of $14,755.97 with facility maximum of $15,000.00.

  1. Together the family income covers their expenses by approximately $100 per week and they are reliant on Corrie’s income to meet the vast majority of the family’s expenses.

Relationship with the deceased

  1. [109]
    I find that Ms Fenton-Leslie had a close and loving relationship with her father through her life.  Apart from her unchallenged evidence, it was to her and her sister that Mr Fenton looked in the crisis that overcame him in the last months of his life.  I also find that in the last months of his life, Mr Fenton reached the decision that his relationship with his daughters, rather than his former wife, was the relationship which he wished to favour with his estate.  

Other relevant matters

  1. [110]
    Ms Fenton-Leslie received various modest benefits from her father up to young adulthood of the kind which were unremarkable from a father to a daughter.  They are irrelevant in the resolution of this application. The only significant benefits to be considered are the lot sub-divided off from the Cambooya property and the funds transferred in the last days of Mr Fenton’s life.
  2. [111]
    As to the former, Mr Fenton-Leslie said that she paid $40,000 to her father for the lot.  That evidence was not effectively challenged.  Rather, Mrs Fenton cross examined Ms Fenton-Leslie as to an apparent inconsistency between the development conditions for the sub-division and her subsequent sale of her lot at Cambooya.  Ms Fenton-Leslie gave such explanation as she could of this.  I am not persuaded that these events involved any sharp practice but even if it did, it is irrelevant to this proceeding.
  3. [112]
    As to the latter, I find that Mr Fenton made the transfer of the funds or caused them to be made to each daughter and that he did so in free exercise of his will so as to provide them with resources to conduct some such litigation as this.  It is evident that those resources and more have been used in that manner.  It is therefore of little material relevance as a benefit received from her father’s estate.
  4. [113]
    Ms Fenton also suggested that Ms Fenton-Leslie was the author of her own poor financial circumstances by selling her Cambooya lot rather than holding it.  That is incorrect.  The selling of the lot was a decision made, rationally it seems to me, in the circumstances that the family faced after they moved to the Sunshine Coast.  I also accept, incidentally, that conflict between mother and daughter was a key driver in that occurring.  Mrs Fenton’s suggestion was a particularly unjust one given that conclusion.
  5. [114]
    There remains to consider whether Ms Fenton-Leslie contributed to maintaining and improving Cambooya.   This issue was not covered extensively in her material.  Ms Fenton-Leslie speaks of doing fencing and other work in about 2004 while her house was built, though she recognises her father for his part always did what he could to help her family financially.  Ms Fenton-Leslie also benefitted from time to time by having her own horses at Cambooya.  Her father did not charge for adjustment.  I conclude that in broad terms, while Ms Fenton-Leslie helped to maintain the property from time to time, she also benefitted from it to a degree.

Ms Fenton-Anderson as applicant

Personal and financial circumstances

  1. [115]
    The personal, financial and health circumstances of Ms Fenton-Anderson are again summarised by counsel. I accept the position is as follows[24]:

Circumstances of Peta Davina Alexandra Fenton-Anderson

  1. Peta was born on 20 February 1978 and was 40 years old when her father died and is presently 42 years of age. Peta is married to John Anderson and together they have three children aged 12, 10 and 6. They all live in a home on a house block carved off the main block of the Property at Cambooya.
  1. Peta, her husband John and their children had a loving and affectionate relationship with the deceased.
  1. It is not disputed that Peta contributed through her labour and effort to the properties owned at various stages by the Deceased, including the Cambooya property.
  1. This contribution continued right up to Deceased’s passing as Peta lived on the adjacent property and her and her husband John provided unrelenting assistance to the Deceased and also to the Respondent by Election.

Financial Circumstances of Peta

  1. Peta is self-employed as a horse breeder and trainer. The income from her business is negligible.
  1. In the 2018 financial year she earned $0 after business expenses. Her best estimate given at trial is that she presently averages approximately $350 (Net) per week.
  1. At the time of filing her affidavit, her estimate was that she earned $265 (Gross) per week which was supplemented by larger one off type horse sale transactions in the order of $5,000.00 but these transactions occur only two or three times per year.
  1. Peta’s husband earns approximately $860.00 (Net) per week. Together they earn approximately $1,210.00 per week ($63,000.00 after tax per year) which exceeds their expenses of approximately $1,525.00 per week.
  1. Her Husband has superannuation in the amount of approximately $34,000.00 and Peta has $236 in superannuation. They have no savings.
  1. Peta and her husband own:-

(a) their home which she values at approximately $650,000;

(b) combined motor vehicles worth approximately $12,000; and

(c) horses worth approximately $60,000.00.

  1. Those assets are subject to liabilities:-

(a) Mortgage - $351,000.00

(b) Personal loan - $19,000.00 (in her husband’s name only but to which she contributes)

(c) Credit Card - $4,995.00;

(d) Person Credit Card - $2,490.00.

that total approximately $377,485.00.

Peta’s Health

  1. Peta was diagnosed with Post Natal Depression in 2012 and suffers severe depression and anxiety.
  1. There have been significant court appearances involving Domestic Violence proceedings between Peta and her mother and, combined with living adjacent to her mother at Cambooya, this has only served to exacerbate her depression and anxiety.

Relationship with the deceased

  1. [116]
    Ms Fenton-Anderson also had a close and loving relationship with her father through her life.  Again, it was to her and her sister that Mr Fenton looked in his last crisis.  I also repeat my finding that in the last months of his life, Mr Fenton reached the decision that his relationship with his daughters, rather than his former wife, was the relationship which he wished to favour with his estate.  

Other matters

  1. [117]
    Paragraph [110] above applies equally to Ms Fenton-Anderson. I have already found that I am not persuaded by Mrs Fenton’s evidence that there was a loan from Mr Fenton to Ms Fenton-Anderson which remained owing.  No argument was advanced that any such sum was a gift, nor did there appear to be any evidence of that.
  2. [118]
    Accordingly, the only material benefits conferred on Ms Fenton-Anderson by Mr Fenton in adulthood are again the lot sub-divided off from the Cambooya property and the funds transferred in the last days of Mr Fenton’s life. Ms Fenton-Anderson’s use of Cambooya for conducting her own horse related business must also be considered.
  3. [119]
    As to the former, Ms Fenton-Anderson gave evidence that she paid about a half of the $40,000 and worked off the balance in various ways.  I find that any sum not paid on the sub-divided lot was more than accounted for in work she did on that property.  This issue really falls to be considered in the overall context of Ms Fenton-Anderson’s contribution to maintenance and up-keep of Cambooya.   Much of the current value of the lot transferred to Ms Fenton-Anderson would be the result of the improvements on the land by Ms Fenton-Anderson and her husband, particularly the house. There is no suggestion that Mr Fenton paid for those works. 
  4. [120]
    As to the transfer of funds from the Commonwealth Bank account, the findings in paragraph [112] apply equally to Ms Fenton-Anderson.
  5. [121]
    Finally, I refer to the question of contributions to the maintenance and upkeep of Cambooya.  In this respect I consider she had a greater role than her sister.  I accept that she moved her horse training and breeding business to Cambooya largely because her father wished that and because Cambooya was available.  I also find that she then did extensive work on the property for two years to put it into good condition for such activities. While that work benefitted her business, it also benefitted Cambooya.  Apart from her evidence to that effect, I find that evidence likely because Mrs Fenton did not do such work and Mr Fenton did the mowing and not much else. 
  6. [122]
    Thereafter, Ms Fenton-Anderson remained on Cambooya through to her father’s death, first living in the house and then living nearby and finally living in the house she and her husband built on the sub-divided lot.  She swore that the whole time she and her husband lived in their house on Cambooya, they expended a lot of time and money keeping Cambooya going. I accept that evidence. Quite apart from my findings generally on Ms Fenton-Anderson’s reliability as a witness, there is the fact that the property is clearly one which needs considerable maintenance.  Weeds need to be managed, fences maintained, sheds maintained and so on.  Ms Fenton-Anderson estimated that about one day a fortnight is required to maintain the property.  I accept that estimate.  No-one else claimed to have been doing that work, and there are no other candidates (apart from Ms Fenton-Leslie from time to time).  Although Ms Fenton-Anderson benefitted from this work in that it facilitated the conduct of her business, I think it unlikely that Mr Fenton could have lived long term at Cambooya and kept the property maintained without the physical and financial support which Ms Fenton-Anderson and her husband provided.  That comprised a material contribution to the value of the property by the time of Mr Fenton’s death.  It vastly exceeded any sum owing on the sub-divided lot.

Mrs Fenton as applicant/competing claimant

Heath and financial position

  1. [123]
    Mrs Fenton ceased teaching in about 1990.  She has not worked since in paid employment.  It was never established at trial with precision exactly what conditions she had and how they affected her.  Her own summary of her ailments appears in Exhibit 11.5.  However, the voluminous evidence tendered by Ms Fenton-Anderson demonstrates she has complex and extensive medical and physical problems of long standing along with some mental health issues. 
  2. [124]
    The consequence of her disabilities (for want of a more specific term) is that she has been on a disability support pension since at least 3 February 1998.[25]   It is currently at about $850 per fortnight.  She has had no other material source of income or capital since then arising from her own work or exertions.
  3. [125]
    There is no evidence that the horse stud business that she operated from time to time ever had any significant success.  I accept the evidence of the applicants that it was an unsuccessful business which was sustained to a substantial degree by Mr Fenton’s support both financial (paying feed expenses) and material (permitting Mrs Fenton to use Cambooya) and by the work done by her daughters to care for her horses.  Certainly, on her own evidence she was utterly incapable of doing that work, and someone must have been doing it.  That conclusion gains considerable force from her own sworn statement that the stud cannot run as a business without the support of Ms Fenton-Anderson and her husband.[26]
  4. [126]
    She also appears to have no significant assets or liabilities of her own. 
    1. (a)
      She swears to owning about a dozen “warmblood” horses of undisclosed value as at August 2019.  However, it appeared from her statements during the adjournment application that they could not be realised in any reasonable time.  Mrs Fenton’s affidavit referring to the horses include Centrelink statements showing “Other Assets” of $65,000.  There does not appear to be any other assets apart from the horses which could comprise these assets.  While I am not confident that the horses were of that value at the date or death or now, they are probably of some value.  The difficulty is that it seems unlikely Mrs Fenton can maintain them properly herself and it appears in the current environment they are hard to realise.  I do not consider that the horses are significant assets.
    2. (b)
      She swears to being entitled to some $36,000 from her mother’s will plus one third of the residue.  The value of the residue is unknown.  There appears to be a dispute over that estate.[27]  I do not consider that the interest in Mrs Fenton’s estate is a significant asset.
    3. (c)
      She also has a liability to the applicants for the costs order dealt with in the adjournment application in the amount of $13,000.
  5. [127]
    Mrs Fenton’s support needs are met from other than her own negligible assets and the disability support pension.  From 2015, Mrs Fenton was entitled to a carer funded by the Commonwealth.  Her two daughters undertook that role from time to time.  That was the position at the date of death.
  6. [128]
    Her current position has been spectacularly improved by her NDIS package.  Mrs Fenton’s NDIS package was tendered at the trial with her support.
  7. [129]
    It relevantly provides:
    1. (a)
      At page 2 under the heading About Me:

I live on my own in my own home, I would like to have someone live with me in my home that I can trust that can do outdoor jobs, and help out by fixing things that are broken and provide me with some support to take help me with my personal care, household cleaning and meal preparation and supervise my medication.

I currently receive 3 hours support from a local care provider who assists me to attend some appointments and getting prescriptions, and shopping for food. I also receive some of my meals delivered to my home, and this has been a great support.

I am trying to work towards improving my relationships with my daughters.

Most days I am bed ridden, I sleep most of the day and I am only awake for a few hours, this is more frequently occurring through the night. I usually sleep till lunchtime unless the phone wakes me up. I have a local care provider come on a Thursday afternoon fortnightly who takes me out and sometimes has to assist me to get ready to access the community. Sometimes we stay at my home and the care provider will do some little household tasks in my home. I have not had any sleep with housecleaning since before my husband passed February 2018.

  1. (b)
    At page 6 under the heading Core Supports:

Core Supports

Budget

Personal continence products, activity related products and protectors to maintain health, wellbeing and participation in community activities, for example, low cost assistive technology: $2500 is allocated for the purchase of basic (Level 1) and standard (Level 2) assistive technology to support me to achieve my goals and outcomes.

Assistance with daily living – Supports to enable maximum independence in personal activities of daily living, for example, support with self-care, household cleaning and/or yard maintenance.

Social Community and Civic Participation – Assistance to explore and participate in community based activities of interest and to develop, build and maintain friendships.

My Core Supports funding will be:

  • $178,875.25 Plan-managed

$178,875.25

Transport

A contribution towards the costs associated with accessing the community to attend activities of interest to me.

My Transport funding will be:

  • $1,784.00 Plan-managed

$1,784.00

Total Core Supports

$180,659.25

  1. (c)
    At page 7 under Capacity Building Supports

Capacity Building Supports

Budget

Improved Life Choices (CB Choice & Control)

Plan Management And Financial Capacity Building – Set Up Costs (x 1)

Plan Management – Financial Administration (x 12)

My Stated Supports funding will be:

  • $227.53 NDIA-managed
    Plan Management And Financial Capacity Building – Set Up Costs
  • $1,227.36 NDIA-managed
    Plan Management – Financial Administration

$1,454.89

Improved Daily Living (CB Daily Activity)

Support to assist you to achieve your goals to live independently in your home, and to engage with your community. These services usually include the support of allied health professionals such as occupational and physiotherapists but can also include support workers and mentors. Therapists to establish and supervise a therapy programs undertaken as part of daily care. Your capacity building supports should coordinate with your core support to maximise your participation and independence.

$11,639.40

  1. [130]
    The following observations are relevant.
  2. [131]
    First, there was no suggestion either in the material tendered or by Mrs Fenton, that the NDIS funding was means tested or subject to reduction or modification based on her asset position.
  3. [132]
    Second, funding is made available for household cleaning and yard maintenance of the Cambooya property.  That seems to be limited to care of the house and curtilage.  That is consistent with Mrs Fenton’s evidence that the NDIS provides for a person to come to mow some 5 acres of the 200 acres.[28]  The covering letter from Ms Kay, a Support Coordinator for Multicap, states that the in-home support includes watering and feeding horses.  That is not shown in the NDIS program statement, but I assume it is so.
  4. [133]
    I refer to paragraph [122] above. As stated, I accept Ms Fenton-Leslie’s evidence that maintenance of the property as a whole requires, on average, work of about 1 day per fortnight.  I am not persuaded that the NDIS funding will cover most of that work, as it relates to work other than on the house and surrounds.
  5. [134]
    That conclusion is supported by the fact that though the house and surrounds have been put in good order since the NDIS funding became available, there remains poisonous weeds in the paddocks.  Further, should there be any kind of extreme event such as fire, flood or so on, Mrs Fenton would be unable to cope with it or fund measures to do so.
  6. [135]
    Third, I agree with the submission of the executors that:
  1. There is no evidence adduced by Michelle to the effect that she could not reside in a smaller premises and still receive NDIS assistance. Indeed, it is an irresistible conclusion given the evidence which has been adduced. There is no plausible reason a [sic as] to why she would not receive the NDIS absent a chance of policy. If Michelle can survive with significant assistance on such a large property, then she would be able to do so in a smaller residence. There appears no basis to maintain the property other than her lifestyle and her apparent love for her horses. But the maintenance of horses without assistance would appear to be an impossibility based on her own evidence.
  1. [136]
    In conclusion then it can be said that Mrs Fenton has little by way of assets and at least one liability in costs, she has no source of income other than her disability support pension of some $850 per fortnight but at date of death she had a disability support carer on a daily basis.  At the date of her death and now she was largely disabled and unable to either properly care for herself or her home.  She now has the benefit of a significant NDIS package to assist in meeting her daily health and care needs and to permit her to care for the house and surrounds at Cambooya, but not to maintain the paddocks and infrastructure of the property.

Character of her claim: applicant or competing claimant?

  1. [137]
    Mr Collins pointed out that the approach which the Court should take to this case depends very substantially on how to characterise Mrs Fenton’s relationship with Mr Fenton.  Although Mr Collins was unaware Mrs Fenton would contend in her submissions that she was an applicant in her own right, the issues remain largely the same.  If Mrs Fenton were not an applicant under the Succession Act, the character of her relationship with Mr Fenton would still be relevant to the nature of her competing claim.
  2. [138]
    Mr Collins contended that if I were to find that Mrs Fenton was in the nature of Mr Fenton’s widow, the claim on his estate would be particularly strong.  Cases recognise that the widow of a deceased frequently has a particularly strong claim on a testator, whether their position is analysed as an applicant or a competing claimant.  That is particularly so where the applicants are children of the deceased in reasonable health and with reasonable prospects.  The authorities are sufficiently summarised as follows:[29]

Claims by widows

[140] Primacy is accorded to claims for widows in certain circumstances, including “in the absence of special circumstances”; “if the children are physically and mentally able to maintain and support themselves”; and where the requirements for the allocation of resources between the widow and children are equal.

  • “… [A]s a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies”: Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 – 70, per Powell J. See also Golosky v Golosky [1993] NSWCA 111.
  • In Sayer v Sayer; Garbutt v Sayer [1999] NSWCA 340, certain of the principles stated in In Re Allardice, Allardice v Allardice [1910] 29 NZLR 959 were endorsed by Sheller JA at [8], including the following –

“[I]n the case of a widow the Court will make more ample provision than in the case of children, if the children are physically and mentally able to maintain and support themselves.”

  • In Cropley v Cropley [2002] NSWSC 349, Barrett J observed the need to bear in mind that the principle was, by its terms, stated to apply as a “broad general rule” to be considered in the context of the particular case. Of competing claims between widow and child, his Honour said at [56] –

“When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the sense that a demonstrated requirement for the allocation of resources in aid of the widow must be satisfied before any similarly demonstrated requirement for the allocation of resources in the aid of an adult child …”

  • In Bladwell v Davis & Anor [2004] NSWCA 170, Bryson JA, with whom Ipp JA and Stein AJA agreed, said that “it would be an error to accord to widows generally primacy over all other applicants regardless of circumstances and regardless of performance of the stages of consideration described in Singer v Berghouse” (citations omitted).
  1. [139]
    Mrs Fenton was not Mr Fenton’s wife.   They divorced in 1983 and never remarried.  The fact they lived under the one roof from about 1991 until just before Mr Fenton’s death raises the question of whether they were de facto partners.  That possibility was quite properly raised by Mr Collins for the executors, though the executors’ submission ultimately was that the better view was that Mrs Fenton was not Mr Fenton’s de facto wife.
  2. [140]
    In my view, that submission is correct.  A spouse for the purpose of eligibility as an applicant under s.41(1) Succession Act is defined to include a de facto spouse[30], which is in turn defined in s.32DA Acts Interpretation Act 1954 (Qld) as follows:

32DA Meaning of de facto partner

  1. (1)
    In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
  2. (2)
    In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—
  1. (a)
    the nature and extent of their common residence;
  2. (b)
    the length of their relationship;
  3. (c)
    whether or not a sexual relationship exists or existed;
  4. (d)
    the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. (e)
    their ownership, use and acquisition of property;
  6. (f)
    the degree of mutual commitment to a shared life, including the care and support of each other;
  7. (g)
    the care and support of children;
  8. (h)
    the performance of household tasks;
  9. (i)
    the reputation and public aspects of their relationship.
  1. (3)
    No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.
  2. (4)
    Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.
  3. (5)
    For subsection (1)—
  1. (a)
    the gender of the persons is not relevant; and
  2. (b)
    a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.
  1. (6)
    In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary.
  1. [141]
    It is important not to lose sight of the key task for the Court, which is to determine whether the definition in subsection (1) is met.  The matters in s. 32DA(2) are neither necessary nor sufficient alone or in combination.  As Ann Lyons J (Holmes and Gotterson JJA agreeing) observed in Spencer v Burton [2016] 2 Qd R 215 at 243, paragraph [123]:

It is clear that the criteria in s 32DA are all to be weighed up and analysed together with other factors or circumstances the judge considers relevant. It is also clear that one criterion is not to be considered more significant than any other. Neither is it necessary for all the criteria to be present in order for a declaration to be made. It is clear that the question as to whether two people are living together as a couple on a genuine domestic basis is to be determined by circumstances which include but are not limited to those listed in s 32DA.

  1. [142]
    Section 5AA Succession Act adds some further considerations in that regard. It provides:

5AA Who is a person’s spouse

  1. (1)
    Generally, a person’s spouse is the person’s—
  1. (a)
    husband or wife; or
  2. (b)
    de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or
  3. (c)
    civil partner, as defined in the AIA, schedule 1.
  1. (2)
    However, a person is a spouse of a deceased person only if, on the deceased’s death—
  1. (a)
    the person was the deceased’s husband or wife; or
  2. (b)
    the following applied to the person—
  1. the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;
  2. the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

(ba) the person was the deceased’s civil partner; or

  1. (c)
    for part 4, the person was—
  1. a person mentioned in paragraph (a), (b) or (ba); or
  2. the deceased’s dependant former husband or wife or civil partner.
  1. (3)
    Subsection (2) applies—
  1. (a)
    despite the AIA, section 32DA(6) and schedule 1, definition spouse; and
  2. (b)
    whether the deceased died testate or intestate.
  1. (4)
    In this section—

dependent former husband or wife or civil partner, of a deceased person, means—

  1. (a)
    a person who—
  1. was divorced by or from the deceased at any time, whether before or after the commencement of this Act; and
  2. had not remarried or entered into a civil partnership with another person before the deceased’s death; and
  3. was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased; or
  1. (b)
    a person who—
  1. was in a civil partnership with the deceased that was terminated under the Civil Partnerships Act 2011, section 19; and
  2. had not married or entered into another civil partnership before the deceased’s death; and
  3. was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.

[underlining added]

Mrs Fenton not a de facto spouse

  1. [143]
    I find that Mrs Fenton was not Mr Fenton’s de facto spouse at any time after the move into Cambooya and for a considerable period before then, perhaps reaching back to the mid-1980s.  
  2. [144]
    I reach that view conscious of my findings that:
    1. (a)
      They lived under the same roof at Cambooya for some 17 years;
    2. (b)
      During that time Mr Fenton provided substantial financial support for Mrs Fenton in the form of paying bills for her stud and letting her live at Cambooya and use its facilities largely as she wished;
    3. (c)
      Mr Fenton sent Mrs Fenton the greeting cards I have already referred to above; and
    4. (d)
      Mr Fenton made the 2010 Will favouring Mrs Fenton.
  3. [145]
    However, I have found (at [46]) that despite these matters, Mr Fenton lived an entirely separate life from Mrs Fenton.  He had another relationship of some longstanding despite Mrs Fenton’s presence at the Cambooya property (see paragraph [72] above).  And in the extreme moments of his life, he fled from her presence (see paragraph [75] above).  As to the cards, I refer to my observations in paragraph [71] above.
  4. [146]
    Mr and Mrs Fenton lived in the same house, but not as a couple nor on a genuine domestic basis.  
  5. [147]
    I would add that s. 5AA(2)(b)(ii) provides that if there is break in the de facto relationship such that it is not in existence at the date of death, a person is not an eligible applicant on this basis.  In my view, Mr Fenton’s departure from the Cambooya property in February 2018, in the circumstances in which it occurred, represented such a break of any de facto relationship which might have existed up to that time. 
  6. [148]
    Mrs Fenton is not an eligible applicant as Mr Fenton’s spouse.

Mrs Fenton not a dependant former wife

  1. [149]
    I refer to the underlined sections of s. 5AA.  While Mrs Fenton meets the first two characteristics of a dependant former wife in s. 5AA(4)(a)(i) and (ii), she does not meet the third.
  2. [150]
    While it is true (as I have found) that Mr Fenton provided some financial and in kind support to Mrs Fenton, by paying her feed bills and letting her live at Cambooya and use it as her home, this is not maintenance in the sense that word is used in s. 5AA(4)(a)(iii).  Maintenance in that sub-section refers to maintenance to which a former spouse is entitled under a court order or enforceable agreement.  The use of the word entitled indicates that conclusion and authority supports it.[31]  There is no evidence of any such extant right in Mrs Fenton.

Mrs Fenton not an eligible applicant

  1. [151]
    None of the other categories for standing to apply for provision under s. 41(1) Succession Act apply to Mrs Fenton.  Accordingly, her application for further provision must be dismissed.

Character of Mrs Fenton as a competing claimant

  1. [152]
    Mrs Fenton is a beneficiary and receives the majority of the value in the estate under the Will.   She does not have to establish eligibility as an applicant to sustain that entitlement.  Further, while her status does not attract principles applicable to widows, that does not mean that her particular circumstances were not analogous in some respects.  What must be done is to consider the strength of her competing claim by reference to the particular facts of the case.
  2. [153]
    A key consideration is in my view, the peculiar nature of the relationship with Mr Fenton.  While Mr Fenton had abandoned any intimate or loving relationship with Mrs Fenton (indeed any real relationship of any kind) long before his death, his conduct was such as to induce her reliance upon him. I refer again to the considerations in paragraphs and [73] and [144] above.  To my mind, Mr Fenton’s conduct was such as to cause Mrs Fenton to rely on his support to the extent it was provided.  I consider that that conduct was such as to give her some claim on him to continue that support after his death, even if he chose to resile from his provision for her under the Will in his last days.  
  3. [154]
    It is in that context that I consider Mrs Fenton’s submission in her Background 1 affidavit as to her claim on Mr Fenton’s estate. She submits (albeit in sworn form) that the trust imposed by Mr Fenton to the benefit of his daughters and grandchildren was some kind of mistake and that he only did it to ensure Mrs Fenton had full benefit of Cambooya without her pension being affected.  There is no evidence that that was so, and it was not raised with Mr Power at the trial.  In any event, the circumstances in which the Will was made stand strongly against it.   The Will made some provision for Mr Fenton’s children and grandchildren out of the value of Cambooya when it was no longer needed or able to be properly maintained by Mrs Fenton and she otherwise had a reduced need for support.  That kind of provision is consistent with Mr Fenton wishing to benefit his other descendants so far as he could consistent with his evident wish at the time the Will was made to secure Mrs Fenton’s position. 
  4. [155]
    Returning to Mrs Fenton’s claim on Mr Fenton, his behaviour referred to in paragraph [153] above was not such as to give Mrs Fenton the kind of strong claim on Mr Fenton which would arise from a joint life as husband and wife or as de facto partners.  Mr Fenton’s support was material only and limited in its scope.  Further, Mrs Fenton had benefitted from a property settlement on the divorce in which she received the marital home.  
  5. [156]
    Further, I accept the evidence that she worked assiduously to obstruct and prevent Mr Fenton giving effect to his wish to sell Cambooya.  And as I have found, Mr Fenton ultimately resiled from giving the primacy to Mrs Fenton’s claim over those of his daughters in his last days.
  6. [157]
    Those considerations leave more room to consider the competing claims of his daughters arising from their relationship with him and their very modest financial position than might otherwise have been the case if Mr and Mrs Fenton had lived as a couple until just before his death.

Poor prospects of maintaining the Cambooya estate in accordance with the Will

  1. [158]
    Mr Power gave evidence, which I accept, that the house, garden and pool were inadequately maintained in about March 2019 but that the house and surrounds had been put into reasonable order by the time of the trial in July 2020.[32]  His evidence under cross examination on this issue reflected Mr Power’s patient and even handed approach to his duties, despite frequent and often intemperate criticism by Mrs Fenton.[33]
  2. [159]
    However, I do not accept all is well on that front or is likely to remain so:
    1. (a)
      The NDIS funding does not extend to cover the on-going maintenance on the property outside the house and surrounds;
    2. (b)
      Mr Power did not claim to be an expert on these kinds of issues.  Ms Fenton-Anderson on the other hand has extensive experience of this kind of work and in maintaining Cambooya in particular.  I have accepted her evidence as to the work required.  As time goes by, the lack of such on-going maintenance will become ever more pressing and will ultimately come to affect the value of the property;
    3. (c)
      An example of the skill and work required is the need to suppress weeds and encourage good pasture.  The lack of work on this front has been concealed I suspect by the long drought.  And in any event, there is evidence that a poisonous weed, pigweed, is growing uncontrolled on parts of the paddocks[34]; and
    4. (d)
      Mrs Fenton is unable from her own resources to maintain the property nor to afford to pay for that to be done.
  3. [160]
    In my view, it is likely that sooner or later the maintenance obligation under the Will for the areas outside the house, pool and garden will not be able to be complied with to the detriment of the value of the property.
  4. [161]
    Further, although the executors did not press the point, it seems unlikely to me that Mrs Fenton will be able to meet the holding costs identified in clause 5(ii) of the Will.  The evidence is that the rates have not been paid,[35] and I cannot see how Mrs Fenton is likely to be able to pay them in the medium term, even if she can sell some horses and the antiques, much less other statutory and holding costs of such a property.[36] 
  5. [162]
    Despite the NDIS funding, I think it likely Mrs Fenton will be in substantial default of clause 5(ii) in the near future, if that has not already occurred.
  6. [163]
    I also find that that was always likely to be the case, from the date of death.  The way the 2010 Will seemed to contemplate Mrs Fenton meeting those costs despite her disability and lack of employment was through the funds and furniture left to her.  Mr Fenton paid away most of the funds just before his death and the furniture is worth much less than previously thought.  It was his actions which frustrated the scheme of the Will for enabling Mrs Fenton to maintain Cambooya.  It might be that Mrs Fenton (presumably unintentionally) makes the same submission where she argues in her Background 1 affidavit at paragraph 14 that she cannot and will not accept the trust and trustee conditions in the Will because they are “not sustainable under the current estate assets”.
  7. [164]
    These findings are relevant both to assessing whether adequate provision was made and to considering how to make provision, if any, for the applicants because both at death and now, the prospect of Cambooya ultimately being sold was, and is, almost inevitable (even without any provision being made for the applicants), particularly when the need to meet the administration costs is considered.

Adequate provision not made for the applicants

The provision under the Will

At death

  1. [165]
    I refer to paragraphs [55] to [59] above as to the proper construction of the Will.   At the date of date of death, the benefit conferred on the applicants under the Will was that they could receive part of the proceeds of sale of Cambooya, realistically in one of two scenarios:
    1. (a)
      First, they could receive 1/8 each of the fund remaining from the sale of Cambooya at the death of Mrs Fenton after the capital costs of her aged care accommodation are paid and her need for maintenance to her death is met; or
    2. (b)
      Second, they could receive 1/8 of the proceeds of sale of Cambooya at an earlier date if Mrs Fenton left Cambooya without seeking funding for aged care accommodation.
  2. [166]
    This assessment leaves out the possibility of Mrs Fenton remarrying, which I respectfully consider an appropriate assumption.
  3. [167]
    Ultimately though, the best that could have been achieved was 1/8 of the net proceeds of sale (or less) at some date between Mr Fenton’s death and Mrs Fenton’s death.  As to the latter point, although Mrs Fenton has many health issues, nothing was put before me to suggest her difficulties will significantly reduce her life expectancy.  It might be expected she could live for 20 years or more.  Further, in my view, given the vigour with which Mrs Fenton held onto her benefit under the Will, it is very likely she would at all times have striven to keep the use and benefit of the capital, under clause 5(iii) if in no other way.
  4. [168]
    One eighth of the net proceeds of sale of Cambooya was at the date of death likely to amount considerably less than $125,000 each in current dollars, at some unspecified date in the next 20 years or so.

At trial

  1. [169]
    The current situation is more complicated.  It seems to me that it is inevitable now that Cambooya will have to be sold, even if no provision is made for the applicants.  The costs of administration and of defending the proceedings, even if reduced somewhat if challenged, are such that there are insufficient funds in the estate to meet those costs of administration.  Even the funeral costs (which I find to be properly payable out of the estate) and the other costs incurred and existing liabilities, cannot be met from cash in the estate.[37]
  2. [170]
    Much of the responsibility for this situation rests with Mrs Fenton.  The way she has conducted these proceedings and conducted herself in her dealings with the executors has greatly inflated the costs of the administration and the estate. 

Mrs Fenton’s position

  1. [171]
    To summarise: as at the date of death, Mrs Fenton was a disabled person on a disability support pension, with daily care provided.  She had no significant assets and at least one liability for costs.  While she appeared likely to live for a considerable period, she did not have the financial or personal resources to take care of herself or Cambooya.  She had lived under the same roof as Mr Fenton for some 27 years, but not as his partner or as part of any kind of couple.  He gave her limited financial support, both in cash and kind, but did not undertake general financial responsibility for her.  He had some form of sense of responsibility for her security as reflected in the 2010 Will.  However, he resiled from that position in his last days.  Mrs Fenton made no significant contribution to his estate, rather she benefitted from him financially for most of her life.  She received a favourable property settlement in 1983.
  2. [172]
    I also find that at the date of death, it was unrealistic to assume, as the Will does, that Mrs Fenton would be able to maintain Cambooya in accordance with the requirements of the Will for any reasonable period.  A wise and just testator considering the needs and claims of Mrs Fenton and the applicants would have approached that matter on the basis that Cambooya should be sold.   Indeed, as I have found, Mr Fenton tried to do that and was frustrated by the overbearing conduct of Mrs Fenton, a factor which I consider relevant to the strength of her claim to maintain her benefit under the Will.   I do not think that the Court is fettered by trying to maintain the benefit of the right to reside conferred by the Will.  
  3. [173]
    In my view, while Mrs Fenton’s competing claim against Mr Fenton’s daughters has some strength arising from the unique position she had in Mr Fenton’s life, and her need for financial support is clear, it is not a claim in any way analogous to a widow or partner. 
  4. [174]
    Further, at death and now, it seems likely that secure and indeed more appropriate accommodation is available for Mrs Fenton in the region where she lives for much less than the net proceeds of Cambooya.  Mr Power gave evidence which I consider credible to this effect:[38]

Are you aware of the current range of costs to provide for cared accommodation for – of elderly persons?---In the Toowoomba area, I do practise in that, as far as people obtaining independent living units or aged care placements, yes.

And for, say, private style accommodation, what would be the range of bonds that are usually charged for those sorts of properties?---Again, it depends on the – what the person requires. Independent living units can start in the, sort of, low to mid-200,000s. Some of the more expensive ones are much, much higher than that, and – but those are independent type living units that don’t require a lot of care. If someone’s in a medium or a high-care aged care placement, that’s, of course, means tested under aged care legislated and the amounts that the particular home might retain or require to be paid by bond is means tested.

  1. [175]
    Further, if a high quality and large home on 200 acres like Cambooya is valued at about $1m, the inference that a modest home on a normal block nearby would be much less expensive is strong, even in the absence of specific evidence.

Adequate provision not made

  1. [176]
    The applicants are adult children in apparently stable long-term relationships, with children in good health. Neither of them are in desperate financial circumstances.  However, it is not necessary to demonstrate desperate financial circumstances to establish that jurisdiction has arisen to make further provision under s. 41(1) Succession Act.
  2. [177]
    The proposition that adult children must show some special need before jurisdiction can arise to make further provision, is no longer the law, if it ever truly was.  In Camernik v Reholc [2012] NSWSC 1537 at [159], Justice Hallen summarised the authorities dealing with adult children as follows:

[159] In relation to a claim by an adult child, the following principles are useful to remember:

(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.

(b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.

(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.

(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VicRp 58; [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].

(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.

(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].

(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.

  1. [178]
    Ms Fenton-Leslie has moderately concerning health circumstances, both in respect of her Lupus condition and in respect of mental health issues.  She has very limited capacity to earn and she and her husband have very little capital resources given their age and stage of life.  I reject the suggestion that her position is her own fault because of the sale of the Cambooya lot (and even if it was, it would not be a particularly relevant consideration in an application of this kind).  Apart from anything else, most of the value of the property lay in the construction and that was funded by Ms Fenton-Leslie and her husband.  Further, the sale of that property was driven at least in part by the difficulties living near Mrs Fenton.  The kind of life decision involved in moving away in those circumstances is not something which I consider negatively impacts on her claim. 
  2. [179]
    Ms Fenton-Leslie is one negative life event away from real financial difficulty.  The estate, while modest, was not small. Ms Fenton-Leslie had a close relationship with her father (including, importantly, his failed attempt to reflect that relationship by altering the Will just before his death) and she received very modest inter vivos benefits from Mr Fenton.  The effect of the Will in its current form is that she might receive a sum of $125,000 or much less many years into the future. 
  3. [180]
    Although written in the current tense, there was no material difference in these matters between the date of death and the date of trial, with the exception of the financial burden of these proceedings.
  4. [181]
    In my view, adequate provision was not made for her proper maintenance and support at the date of death, particularly given the limited nature of Mrs Fenton’s competing claim. 
  5. [182]
    Ms Fenton-Anderson is in a stronger financial position with her husband than the position of her sister.   However, that is only to say that she and her husband have about $300,000 net equity. They have modest earning capacity.  They have three younger children.  They appear to have no significant retirement savings nor much prospect of securing that on their current employment position.  Ms Fenton-Anderson had a close relationship with her father and as I have found, made a very significant contribution to the maintenance and care of Cambooya from the beginning.  That benefitted her modest business but significantly benefitted her father’s estate.  He could not have kept Cambooya without her and her husband’s work. The effect of the Will in its current form is that she might receive a sum of $125,000 or much less many years into the future. 
  6. [183]
    Again, although written in current tense, there was no material difference in these matters between the date of death and the date of trial, with the exception of the financial burden of these proceedings.
  7. [184]
    In my view, adequate provision was not made for her proper maintenance and support at the date of death, particularly given the limited nature of Mrs Fenton’s competing claim. 

The grandchildren

  1. [185]
    I have not overlooked the gift to Mr Fenton’s grandchildren.  They stood to share 1/8 of the net value of Cambooya between the five of them in the same manner as their mothers stood to so benefit.  None of them were identified as having a particular need, nor were they identified as having needs which would not be met indirectly from a benefit to their mothers.  I consider their competing claim to be somewhat less than the applicants and Mrs Fenton.

Late affidavit material from Mrs Fenton

  1. [186]
    At the end of the trial, I directed the parties to file and serve closing submissions in accordance with the following timeline:
    1. (a)
      The applicants within 21 days from the end of trial (being 5 August);
    2. (b)
      The executors within 7 days after that (being 12 August); and
    3. (c)
      Mrs Fenton within 35 days from then (being 16 September).
  2. [187]
    Despite my directions, Mrs Fenton never delivered trial submissions, at least in any form recognisable as such.  Rather, on 17 November 2020, over 4 months after the trial was completed, she delivered eight affidavits, some 39 photographic exhibits and a further written exhibit.  Some of the text of those affidavits comprised submissions.   In dealing with that material, the circumstances of the delay need to be set out.

Delays in delivering submissions

  1. [188]
    For reasons which need not be recited, the applicants’ submissions were not delivered until 26 August 2020, three weeks late. My associate contacted all parties setting out directions for provision of the other parties’ submissions:
    1. (a)
      The executors’ submissions were due by 4pm 7 September (Monday); and
    2. (b)
      Mrs Fenton submissions due 5 weeks after that: 4pm on 12 October (Monday)[39].
  2. [189]
    The executors’ submissions were ultimately provided to my associate on 8 September.  Mrs Fenton’s submissions were thus due on 13 October 2020 (allowing an extra day for the extension granted to the executors). 
  3. [190]
    On 12 October 2020, my associate received the following email from Mrs Fenton requesting an extension of time:

Goodmorning Parties

Can i please ask for an extension til Friday 16th 2020 for my submission?

My daughter has called Animal Management and i have had 2 officers here at my property this morning.  During the night i have had someone cut the chain on one of my yards and let one of my colts out. My focus at present is to have him  safely back in his yard. 

Please know that I have managed to purchase a new laptop but I now have the added issue of not being able to obtain the required ink for my printer, despite trying to source it from several office suppliers within Toowoomba. 

If i could please have this added time ?

Thanking you in advance

Mrs Suzanne Fenton

  1. [191]
    The other parties raised no objection and my associate thereafter confirmed an extension for Mrs Fenton’s final submissions to 5pm Friday 16 October 2020. 
  2. [192]
    No submissions were received from Mrs Fenton by that time, nor did Mrs Fenton contact my associate.   Accordingly, my associate sent an email to Mrs Fenton (copied to the other parties) on Monday 19 October asking whether she intended to provide final submissions. The following response was received the next day:

Dear QC Porter and Mr Mitchell Lock,

My name is Helen Dupuy and as of today, I am Mrs Fenton's  NDIS Administration Assistant.

Please find attached the required medical certificate. Please accept my sincerest apologies for the delay. Mrs Fenton has been inundated from RSPCA and Toowoomba City Animal Welfare Officers for the last week or so and this has impeded her abilities to get more important matters done. This has been a continual tactic by The applicants to delay Mrs Fenton's responses with getting imperative legal documents returned in the specified time frame.

Thank you for your patience and kind considerations. Please contact me further if you require anything more.

Sincerely

Helen Dupuy

For Mrs Suzanne Fenton

  1. [193]
    It attached a small-sized photograph of a medical certificate. It is extremely hard to make out. Doing the best I can, it states the following:

12/10/2020

MEDICAL CERTIFICATE

I hereby certify that on 12/10/2020 :-

Suzanne Fenton is suffering from an exacerbation of severe pain related to Systemic Lupus Erythematosus (SLE), and withdrawal from longstanding medication dehydroepiandrosterone (DHEA) and unable to mobilise and also exacerbated anxiety issues , for past two weeks .

She also has ongoing chest infection , as seen in the records done by Dr.simpson , and states that she has been advised isolation and awaits COVID-19 TEST as advised by him.

She  will be unfit for any travel including attending the court for next 4- 6 weeks , up to and including 12/10/2020 till 30/11/2020.,

She  states that the incapacity is ongoing and is being treated by her regular doctor , Dr.simpson

Best regards

  1. [194]
    I observe that this certificate (assuming it to be authentic) did not say that Mrs Fenton was unable to prepare her submissions and as it turned out, Mrs Fenton was able to deliver numerous affidavits at the end of the four week period contemplated by that letter.  Having canvassed the other parties, in response to Mrs Fenton’s email of 20 October, I directed my associate to email all parties as follows:

Dear Parties,

I refer to the email signed under the name Helen Dupuy and the email from Ms Hall sent to me on 20 October 2020 and to the submissions of the applicants received today along with the email from Mr Power.

I was asked by his Honour also to inform the applicants and the executors that at about 1:15 today, a person identifying themselves as Helen Juby (?Dupuy) left a message on the telephone of one of the Court’s executive secretaries.  It is likely the call came in on the associate’s number and was diverted.

The record of the message was in the following terms:

A Helen Juby was calling on behalf of Mrs Fenton to say that they are about to call an ambulance for Mrs Fenton as she is extremely unwell and that they are not going to make the deadline for the submission today. 

The message nominated no time by which trial submissions would be delivered by Mrs Fenton.

In the light of all that material, his Honour directs that Mrs Fenton file and serve her trial submissions by 10am on Monday 16 November 2020.     The file will be endorsed with that direction.

Mrs Fenton should be in no doubt that if his Honour does not receive Mrs Fenton’s trial submissions by that time and date, his Honour will give judgment without receiving trial submissions from Mrs Fenton.

Further, his Honour requests that the executor write to Mrs Fenton at her postal address for service notifying her of these orders forthwith and provide a copy of the letter and confirm date of posting or delivery to me when convenient.

  1. [195]
    I was informed by the executors, that they did in fact forward this email, along with a covering letter to Mrs Fenton’s postal address.    The directions plainly came to Mrs Fenton’s attention because Ms Dupuy on behalf of Mrs Fenton acknowledged receipt of the email and responded in the following terms on 26 October:

Dear Your Honour, 

Mrs Fenton thanks you for the extension to her submission date and will have materials submitted by the 16th November 2020.

Regards

Helen Dupuy

For Mrs Suzanne Fenton

  1. [196]
    The morning the submissions were due on the 16th of November, my associate received the following email from Mrs Fenton:

Dear his honour judge porter,  

My support worker today is is nicole who arrives at 10am  she is going to email my addidavit material, there was a power outage last night which has delayed the process. 

 THANK YOU MRS FENTON

  1. [197]
    The references to affidavits was an ominous indicator of what was to come.
  2. [198]
    No submissions were received by the end of the 16th. After confirming with the Toowoomba Courthouse registry that no physical submissions or documents had been filed, I directed my associate to contact all parties informing them that we had not received any submissions from Mrs Fenton and I was therefore minded to deliver judgment at 9:00am on Thursday 19 November 2020.  My associate sent that email at 2.44pm.  At 5.02 pm, Mrs Fenton responded by email in the following terms:

Please accept my apologies as of 11am yesterday morning my Career Nicole confirmed to me that all of the documentation due on the 16th November had been sent. 

Please find attached Monday's documents as requested as this has only just come to our attention that it hasn't been received on your end, not only did we have a power outage here, but the wifi was also overheating and was not letting me log into my emails and once we were able to this is when the documents were sent.

Again my deepest apologies.

Kind regards

Mrs Suzanne Michelle Fenton 

  1. [199]
    I have made the emails referred to above exhibit 21 in the proceedings.

Mrs Fenton’s material delivered on 19 November 2020

  1. [200]
    Attached to Mrs Fenton’s 17 November email were the following affidavits (some of which appeared to refer to attachments which were not provided).
  2. [201]
    First, there was an affidavit of 43 paragraphs directed to proving her relationship with Mr Fenton by photographic evidence.  It narrated some 39 photographs said to demonstrate the relationship.  The email had 39 entries hyperlinked to some kind of Google server.  Efforts to access the photographs failed but copies were later provided by email.
  3. [202]
    The most relevant period of the relationship for the purposes of this application is the period after the move to Cambooya.  However, it is to be noted that the photographs even from 1990 onwards largely comprise photographs of family events: birthdays, Christmas, weddings and new babies arriving home and the like.  These photographs are consistent with the evidence already given at trial, that the family did gather for such events.  These photographs add nothing material to the evidentiary record of the relationship.   Notably, they do not show any particular intimacy between Mrs Fenton and Mr Fenton.
  4. [203]
    There is one other category of photographs in the post 1990 period: the photographs at paragraphs 40 to 42 which were apparently taken on 5 February 2018.  Nothing in those photographs contradicts the evidence which I accept as to Mr Fenton’s genuine determination to assist his daughters against their mother in the matter of his estate in his last weeks.
  5. [204]
    Nothing in this affidavit could be characterised as a submission on the evidence at trial, nor does it add anything material to the existing evidentiary record.
  6. [205]
    Second, there is a series of four affidavits called Background 1 to Background 4 inclusive.
  7. [206]
    Background 1 appears to invoke paragraph 1 of the directions made on 7 December 2018 (set out in paragraph [11] of the Adjournment judgment) and to reassert a claim for further provision from Mr Fenton’s estate by Mrs Fenton. I have noted in the adjournment judgment at paragraph [13] that Mrs Fenton had given such notice.  She took no step actively to pursue that claim thereafter, though neither did she abandon it.  It is open to her to advance such a claim in her final submissions (though the other parties have not been heard on the matter).  I have dismissed her application already in these reasons.  
  8. [207]
    Background 2 and 3 make brief submissions on the evidence of the applicants which are wrong or irrelevant and do not justify further attention.  Background 4 makes brief submissions to the effect that Mr Fenton’s Will should not be interfered with because it is right and proper, and the applicants should take care of themselves.  Those submissions do not take the matter much further.  I have taken those points into account in the above reasons.
  9. [208]
    Third, there are two affidavits addressing (again) financial issues.
    1. (a)
      The first, headed “Money owing to me” repeats the assertion already made in Mrs Fenton’s material filed at trial that she is entitled to money from her mother’s will and from Ms Fenton-Anderson.  It adds nothing of substance to the evidentiary record;
    2. (b)
      The second, headed “Financial records” seems to be directed at showing that funds were paid from some of Mr Fenton’s accounts to his daughters.  That is not in dispute in the trial.  To the extent it relates to some other alleged transactions, it is an entirely new matter.
  10. [209]
    Fourth, there is an affidavit of 70 paragraphs which includes a somewhat disordered collection of further allegations which can be summarised as follows:
    1. (a)
      Paragraphs 1 to 15 appears to restate the support available under the NDIS without explaining how it provides for maintenance of the property outside the area of the house and surrounds.  The terms of the package are already in evidence (see paragraph [129] above); and
    2. (b)
      Various allegations of misconduct and criminal conduct are alleged against her daughters (and their solicitor) reaching back to their teenage years.  There are also new allegations of criminal conduct by them since the hearing.  Most of this is speculation and mere assertion, tinged with paranoia.  There is no evidence of any police investigation, much less charges being laid. 
  11. [210]
    Finally, there is a copy of a letter apparently given to Mr Fenton’s medical team in early February 2018.  Presumably it is provided to show Mrs Fenton’s care for Mr Fenton.  In fact, it reads as an unfair attack on her daughters.  Why Mrs Fenton would hold a copy of a handwritten letter seemingly provided to Mr Fenton’s medical staff is not explained.

The response to the Mrs Fenton’s material

  1. [211]
    On receipt of Mrs Fenton’s material, my associate informed the applicants and the executors that although I would consider their submissions on Mrs Fenton’s material, I did not require any submissions.  I notified the parties that judgment would be postponed only until 9.00am Friday 20 November 2020.   The applicants notified a wish to deliver submissions later on Friday.  At first I acceded to that request but, on reflection, it seemed to me that no good purpose could be served by any further delay or cost being incurred.  

The Court’s response to Mrs Fenton’s material

  1. [212]
    As explained above, some of Mrs Fenton’s material, though in the form of an affidavit, comprised submissions on the issues in the trial.  I have taken those into account.
  2. [213]
    The other affidavits contain further evidence which Mrs Fenton now seeks to rely on trial.  She does so without seeking leave to re-open her case, nor advancing any explanation as to why the evidence is only being delivered now, four months after the close of evidence and two months after the other parties have delivered submissions.  
  3. [214]
    I have considered whether my duties arising out of Mrs Fenton’s self-represented status required me to draw to her attention the need to apply to re-open her case.  However, my duty is, so far as possible, to ensure a fair trial.[40]  The Court must be careful not to take steps in aid of the conduct of the proceedings by the self-represented person which are unfair to the represented party.  I refer to the propositions in paragraph [61] of the adjournment judgment.  In my view, my duty did not call for me to invite Mrs Fenton to apply to re-open her case nor to assist her in doing so.  The primary reason for that is that it would be an exercise in futility.  Such an application would inevitably fail for the following reasons. 
  4. [215]
    First, for the reasons given in both the adjournment judgment and this judgment, much of the cost and delay in the proceedings has been caused by Mrs Fenton’s conduct.  It would require a compelling case to permit the evidence to be re-opened at this late stage, with all the additional cost and delay which would accompany such a step.
  5. [216]
    Second, with only a few minor exceptions, the evidence Mrs Fenton seeks to lead was plainly available to her prior to trial.  There is no significant fresh evidence.  By her conduct Mrs Fenton seeks to obtain the adjournment which was fully argued and decided against her at the start of the trial.  Even at that time, I had concluded that there was no credible excuse for her not having filed the material she sought to rely on at trial: see paragraphs [69] to [71] of the adjournment judgment.  In those circumstances, the attempt to lead this evidence now is as an abuse of process.  That is particularly so given the explanation given at the end of the trial referred to in paragraph [218] below.
  6. [217]
    Third, as was the case with the pre-trial period, Mrs Fenton has delivered this material without complying with numerous directions for the filing of her submissions (much less her material) and without giving any advance notice of her intention to deliver affidavit material at all. 
  7. [218]
    Fourth, while Mrs Fenton might say that she did not understand the limits of submissions, such a statement would not be justified in the circumstances of this trial.   The nature of trial submissions and the difference between that kind of document and evidence was explained to Mrs Fenton at the trial (both at the start of the trial and at the end of the trial) as was the fact that the time for her to lead evidence had passed.[41]
  8. [219]
    Fifth, to the extent it is credible, for the reasons explained in paragraphs [202], [203], [208] and [209](a) above none of the further evidence which Mrs Fenton wishes to lead materially impacts on the resolution of the issues in the trial, given the evidence which is already before the Court.  The balance of the evidence is of no persuasive force: see paragraph [209](b) above. 
  9. [220]
    Finally, I refer to the passages set out in paragraphs [54] to [58] of the adjournment judgment.  There must be an end to litigation, and that proposition applies with particular force to this proceeding, where so much cost and delay has marked what should have been a modest and straightforward proceeding. Further, it is also the kind of case where considerable emotional stress arises merely from the on-going existence of the litigation. 
  10. [221]
    For those reasons, I have not invited an application by Mrs Fenton to re-open her case.  I have made the documents delivered by email from Mrs Fenton exhibit 20 in these proceedings.

Provision to be made

Framework informing the making of provision

  1. [222]
    As I have already found, Cambooya would almost certainly have to be sold, even if the Will stood unaffected by any order for provision, and in any event, Mrs Fenton can be just as well accommodated in a less expansive property.   I have not overlooked her remaining horses, but is seems very unlikely she will be in a position properly to care for them in the long term without Ms Fenton-Anderson’s support.
  2. [223]
    Further, in assessing the size of the estate:
    1. (a)
      The antique furniture is of some value and that should be exonerated from these orders and included as a benefit retained by Mrs Fenton.  She should be able to realise those items as she chooses, subject to finalisation of the estate; and
    2. (b)
      Allowing for some work to put the property in its best shape for sale, costs of sale and the risk of it underperforming the estimate in the current economic climate, I estimate the net proceeds of sale of the property at $900,000.
  3. [224]
    It is also important to consider the costs which may be claimed against this fund in considering Mrs Fenton’s final position.  The applicants estimate costs at a total of about $100,000 for their proceedings on top of the costs order made.  That sum might or might not be sustainable if challenged.  However, it does not sound unrealistic.  To try to minimise further disputes, I intend to make an order for provision for the applicants on an inclusive of costs basis.  I will adopt that figure for purposes of calculation.  (To be clear, though, nothing in these reasons forecloses the issues which might arise on a solicitor client assessment.)
  4. [225]
    Next there is the costs of the executor.  In that regard I should observe that despite Mrs Fenton’s extensive criticisms of Mr Power, I have seen nothing in his conduct which was examined at this trial which led me to believe he has not conducted the administration and the proceedings in accordance with his duty.  He estimates costs to the end of the administration of some $180,000, though the true figure depends on how Mrs Fenton conducts herself in the future.  While that appears high based on the executors’ limited role in the proceedings, I observe that Mrs Fenton’s conduct has involved the executors in a great deal of pointless correspondence and attendances.  
  5. [226]
    In respect of both the executors and applicants’ costs, I find that Mrs Fenton’s obstruction and delay have caused what should have been a fairly straight forward claim which would almost certainly have been settled at mediation to become a complex case requiring a three day trial.  Without authoritatively ruling on every step taken and cost incurred by the applicants and the executors, I observe that Mrs Fenton was the author of much of the misfortune suffered by all parties on the costs front.

Provision for the applicants

  1. [227]
    Bearing those matters in mind, I order further provision be made for Ms Fenton-Leslie in the amount of $175,000 inclusive of costs and for Ms Fenton-Anderson of $125,000 inclusive of costs. 
  2. [228]
    I intend that the grandchildren share equally the sum of $50,000.
  3. [229]
    Assuming the net proceeds of $900,000, that should leave some $550,000.  Assuming executors’ costs and outlays along with the liabilities of the estate at some $200,000, that should leave Mrs Fenton with a capital sum of about $350,000 along with the furniture (about $29,000) and other chattels.  That sum should be received by her absolutely.  Together with her pension and NDIS program, that should sufficiently secure her position in a modest home or care facility.  To the extent it does not, though, much of the blame lies with her manner of conducting these proceedings and the administration.
  4. [230]
    I make this further comment about Mrs Fenton’s future financial position.  The effect of my orders will be that $350,000 is paid out of the estate to the applicants and allocated to the grandchildren from the proceeds of the sale of Cambooya.
  5. [231]
    Mrs Fenton will benefit from the balance, whatever that is.  If Mrs Fenton co-operates in an efficient and prompt sale of Cambooya at its best advantage and co-operates in the efficient completion of the administration of the estate, then her final financial benefit from Mr Fenton’s estate will be greater.  However, if she chooses to continue to conduct herself in the manner that she has to date in the administration and these proceedings, the costs are likely to impact on her share of the estate.  It is her choice.

Form of proposed orders

  1. [232]
    It is necessary that orders be made to give effect to the provision ordered by these reasons.  I will hear the parties on the form those orders should take.  However, I propose the following draft orders for comment by the parties: 

1. The Will be construed and carried into effect as if Clause 5 was varied so as to refer to the Executors not the Trustees in the chapeau provision and to replace the current clauses 5(i) to (v) with the following clauses:

  1. (a)
    That the Cambooya property be sold forthwith by the Executors;
  2. (b)
    That the Executors pay from the net proceeds of sale the following sums:
    1. To Toni Leigh Dolores Fenton-Leslie the sum of $175,000; and
    2. To Peta Davina Alexandra Fenton-Anderson the sum of $125,000;
  3. (c)
    That $50,000 from the net proceeds of sale be held on trust to be shared equally between such of Mr Fenton’s grandchildren as survive him and shall reach 18 years of age, with each grandchild’s share to be calculated and paid on that grandchild reaching 18; and
  4. (d)
    That the Executors hold the balance of the sale proceeds as part of the residue of the estate;

2. That the applicants bear their own costs of the proceedings including reserve costs.

  1. [233]
    The intended effect of this draft order is to secure payment of the provision ordered and the trust for the grandchildren (clause 1(c) probably needs work), with the balance to be part of the residue to which Mrs Fenton is entitled after due administration under clause 6 of the Will.  If Mrs Fenton co-operates and acts reasonably in the completion of the administration the amount will be higher.  If she does not, it will be lower.
  2. [234]
    I will also hear the other parties as to any other orders for costs which ought to be made and any other orders sought. 

Footnotes

[1] See TS2-118 to 119 and see the emotive cross examination at TS3-12 to 13

[2] TS3-47.25

[3] TS3-95 in the context of the discussion before and after that statement continuing to TS3-96.10 and see TS3-20.23 and 3-111.19

[4] See for example, Mr Collins’ intervention at 3-112.28.

[5] See 3-124

[6] A good example is when Ms Fenton-Leslie said that her father had never mentioned changing the Will before February 2018, even though it would have assisted her case to say so, and some general evidence about that would have been consistent with the narrative and hard to disprove: TS2-101

[7] TS3-105.24

[8] TS3-105

[9] Paragraphs 21.3 – 21.5 of Ms Fenton-Anderson’s affidavit sworn 19 November 2018 (Exhibit 14).

[10] Paragraphs 21.9 – 21.21 of Exhibit 14.

[11] Pages 606 – 612 of Exhibit 16

[12] Paragraphs 22.60 – 22.63 of affidavit of Toni Leigh Delores Fenton-Leslie sworn 19 November 2018 (Exhibit 7)

[13] TS2-36

[14] Gersbach v Blake [2011] NSWSC 368 at [94] – [96].

[15] John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5th ed, 2016) 7.11

[16] See the useful discussion on the admissibility and use of such statements in Preece, Lee’s Manual of Queensland Succession Law (Lawbook Co., 8th ed, 2019) 13.300

[17] See exhibit 10; exhibit 16 p.1223

[18] TS2-17.5

[19] Exhibits 11.2 paragraph 3

[20] Exhibit 11.2 paragraph 2

[21] See paragraph 5 of Affidavit of David Clifford Power sworn 7 July 2020 and DCP1, DCP3 exhibited thereto (Exhibit 2). See also TS2-10

[22] Exhibit 3

[23] See Mr Power’s affidavit sworn 22 July 2020.

[24] Paragraphs [12] to [24] of the Applicants’ outline of submissions, prepared by Kevin Kelso of counsel 26 August 2020

[25] Exhibit 11.1, exhibit 1

[26] Exhibit 11.1, paragraph 9

[27] TS1-34.36

[28] TS3-140

[29] Niebour-Pott & Anor v Pott [2020] QSC 7 at [140] per Ryan J

[30] S. 5AA Succession Act

[31] See the cases collected in Family Provision in Australia at 4.9 especially footnote 72

[32] Exhibit 1 especially at paragraphs 12 to 14 and 18; Exhibit 2

[33] TS2-53

[34] TS2-13; TS3-65 – 66

[35] See exhibits 2 and 3

[36] Mr Power’s post trial affidavit at paragraphs 3 and 4 provides little hope that Mrs Fenton can and will be able to pay all the rates owing into the future.

[37] See Exhibit 3

[38] TS2-22

[39] An original email sent by my associate contemplated Mrs Fenton’s submissions being due 4 weeks after the executors. This was a mistake, which was rectified by subsequent communication confirming that Mrs Fenton did in fact have 5 weeks after the filing of the Executor’s final submissions to file hers. Mrs Fenton was content with this proposal.

[40] Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]

[41] TS1-90 to 91TS3-156 to 158.24

Close

Editorial Notes

  • Published Case Name:

    Fenton-Anderson & Anor v Power & Anor (No 2)

  • Shortened Case Name:

    Fenton-Anderson & Anor v Power & Anor (No 2)

  • MNC:

    [2020] QDC 294

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    20 Nov 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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