Manly v The Public Trustee of Qld
[2008] QCA 198
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Manly v The Public Trustee of Qld[2008] QCA 198
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Manly v The Public Trustee of Qld[2008] QCA 198
Manly v The Public Trustee of Qld[2008] QCA 198
SUPREME COURT OF QUEENSLAND
CITATION: | Manly v The Public Trustee of Qld & Anor [2008] QCA 198 |
PARTIES: | LOUELLA ARANAS MANLY |
FILE NO/S: | Appeal No 449 of 2008 SC No 344 of 2006 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 25 July 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 June 2008 |
JUDGES: | McMurdo P, Mackenzie AJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – claims by spouse – where the appellant’s late husband made a will dividing his residuary estate evenly between the appellant and his three sons – where the appellant applied under s 41 of the Succession Act 1981 (Qld), contending that the deceased did not make adequate provision for her maintenance in his will – where the trial judge refused her application – where the appellant challenged the weight ascribed by the trial judge to various factors including the relationship between the appellant and the deceased, the relationship between the deceased and his sons, the care provided by the appellant to the deceased and an informal prenuptial agreement between the appellant and the deceased – whether the trial judge erred in determining that adequate provision was made for the maintenance and support of the appellant Succession Act 1981 (Qld), s 41 Manly v The Public Trustee of Queensland [2007] QSC 388, affirmed Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, applied Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, considered |
COUNSEL: | R D Peterson for the appellant A P J Collins for the first respondent R T Whiteford for the second respondents |
SOLICITORS: | Collas Moro Ross for the appellant Official Solicitor to the Public Trustee of Queensland for the first respondent McCowans Solicitors for the second respondents |
- McMURDO P: The appeal should be dismissed with costs for the reasons given by Daubney J.
- MACKENZIE AJA: I agree with the reasons for judgment of Daubney J and with the orders he proposes.
- DAUBNEY J: Walter James Manly (‘the deceased’) died on 3 June 2005. He was 83 years old. He was survived by three sons from his first marriage and the appellant, whom he had married on 8 December 2001. Two weeks before he died, the deceased made a Will by which he:
(a)made a number of specific bequests of chattels (a motor vehicle, some furniture, tools, fishing gear and the like) to his sons, and
(b)left his residuary estate to be divided equally between his three sons and the appellant.
- The appellant made application pursuant to s 41 of the Succession Act 1981 (Qld), contending that adequate provision for her proper maintenance had not been made in the Will, and effectively claiming for an order for provision by way of receipt of the entire residuary estate.
- McMeekin J at first instance[1], in applying the conventional two-stage process enunciated in Singer v Berghouse[2], held that the appellant failed at the first stage to enliven the jurisdiction under s 41, and dismissed the claim.
- The appellant appeals against that judgment on a number of grounds, most of which go to the weight which the trial judge gave to the various factors which led him to determine the case against the appellant. A challenge in the notice of appeal to the trial judge’s preference of the evidence of certain witnesses over that of the appellant was abandoned.
- It is convenient to summarise the relevant background from the detailed judgment at first instance.
The judgment at first instance
- The deceased was first married in about 1945. There were three children of that marriage – Ronald, born in 1947, Dennis born in 1950, and Gary, born in 1951. The deceased and his first wife separated in about 1953. The boys remained with their mother, but the deceased provided them with no financial support and effectively abandoned them. Contact with his sons was not re-established until about 1987, when the deceased, then aged about 65, was living alone in a relocatable home on the Gold Coast. Ronald was then living in Canberra and Dennis and Gary resided in Sydney. The three sons and their father thereafter kept in touch through cards and telephone calls. Ronald visited the deceased on several occasions. Dennis, who was supporting a wife and two daughters, could not afford to travel to Queensland but visited the deceased in 1989 when his mother in law paid for a holiday on the Gold Coast. He had arranged leave in 2005 to visit his father, but his father’s death intervened. The deceased visited Gary twice in 1988 and 2002, but Gary was able to travel to Queensland only once to see the deceased because of limited funds.
- The appellant was born in the Philippines in 1954. She met the deceased through a mutual friend in about 1994, and their relationship developed through exchanges of letters and telephone calls. The deceased first proposed to her in 1997, but she did not agree to marriage at that time. The deceased and the appellant commenced a sexual relationship in 1998. In late 2000, when the appellant was working as a contract nurse in Saudi Arabia, the deceased proposed again and she accepted. In October 2001, the appellant came to Australia and commenced to live with the deceased in his relocatable home. They married on 8 December 2001. The deceased was then aged 79 and the applicant 47. Gary and his family attended the wedding, because they were coincidentally on holidays at the Gold Coast at the time. None of the sons had otherwise been given any notice of their father’s intention to marry the appellant.
- His Honour noted that one of the disputed issues in the case concerned the nature of the relationship between the deceased and the appellant. At trial, the sons contended that their father and the appellant had agreed before marrying that, in exchange for marriage, the appellant would provide care for the deceased in his later years. The benefit for the appellant was obtaining Australian residency and the pension available to the widow of a veteran. Given the conflicting versions, his Honour was required to assess the credit of the witnesses called by the sons who gave evidence in support of the existence of such arrangement and the credit of the appellant, who denied such an arrangement. Additionally, his Honour, properly, had regard to an earlier Will of the deceased dated 16 April 2003, a copy of which was located on the Public Trustee’s file, which contained a clause providing:
‘I record that the provisions which I have made for my wife Louella Manly are in accordance with a verbal agreement made between us prior to our marriage’.
- The provisions of the 2003 Will are substantially the same as the last Will made on 23 May 2005.
- His Honour found, as the beneficiaries allege, that there was an agreement made between the deceased and the appellant prior to their marriage, saying:
‘However, I am quite satisfied that the arrangement was one that she was to use her skills as a trained nurse to care for the deceased until his death and that in return she would become his wife, be entitled to residency in Australia and entitled to a pension from the Department of Veterans Affairs.’
- Having found against the appellant on issues of credit concerning this arrangement, his Honour considered it necessary to treat all of the appellant’s evidence with care, but observed:
‘That does not require all that she said to be rejected. Some matters are not contentious, some inherently probable, and some supported by other testimony.’
- The trial judge did, however, reject an assertion by the appellant that she had prematurely terminated her contract as a nurse in Saudi Arabia in order to come to Australia and be with the deceased out of love and the deceased’s sincere need to be with her. He said:
‘I am quite satisfied that that statement is not true and that it was the agreement that had been struck and the expectation of the benefits that she had bargained for that was the motivation for the applicant leaving the Philippines and moving to Australia.’
- Notwithstanding those findings, however, his Honour did not consider that the marriage was a sham, but thought that it ‘might be better described as a marriage of convenience to both sides’. He was satisfied that the appellant fulfilled her side of the agreement, and that in every outward way she behaved ‘as a relatively young wife of an elderly husband in poor health ought to have behaved’. His Honour described at some length the appellant’s attentive caring for the deceased, especially as he developed significant health problems and dementia.
- During their first years together, the appellant and the deceased lived in the deceased’s relocatable home. In late 2002, however, the deceased received an inheritance from his late brother’s estate in the sum of $312,608.44. The receipt of this inheritance enabled the deceased to purchase a house property at Coombabah. It was common ground that the only contribution the appellant made to the Coombabah property was the work that she performed in the form of housework and work in the garden. There was no evidence of her bringing any significant assets to the marriage. The sum of $4,000, which the appellant described as her ‘Saudi award’ was expended on living expenses in the early part of their relationship.
- In receiving the $312,608.44 from his brother’s estate, the deceased relinquished in favour of his sons some of the benefit that he otherwise would have received from that estate, namely his one half interest in certain land at Mogo in New South Wales. This land was valued in the inventory of his brother’s estate at $200,000. The administrators of the brother’s estate caused the land eventually to be subdivided and sold for $680,000. As a result, Dennis and Gary received $100,000 each and Ronald $121,746.92 (the excess being to cover expenses which Ronald had incurred for the purposes of the subdivision).
- At the time of his death, the deceased’s estate consisted of the Coombabah property, and cash which seemed to result from the sale of his relocatable home and money he had in the bank prior to meeting the appellant. Apart from the chattels which were the subject of the specific bequests, the assets in the deceased’s estate were recorded by his Honour as:
(a)A cash sum totalling $106,266.77, and
(b)The Coombabah residence valued at $370,000.
- At the time of trial, the Public Trustee’s legal costs in respect of the application were estimated as being in the order of $20,000. The appellant’s costs were estimated at $75,000, and the sons’ costs were estimated at between $80,000 and $90,000.
- His Honour rejected a contention by the appellant that she had permanent injuries to her back which might hinder her ability to earn income in the future, noting that no sufficient evidence to support that assertion had been led by the appellant. This finding is challenged by the appellant.
- The trial judge also set out in some detail the evidence concerning instructions which had been given by the deceased to a Sydney solicitor in August 2003 concerning a new will. That solicitor had made a note of a conversation he had had with the deceased, recording instructions to the effect that all of the deceased’s estate was to go to the appellant and there was to be no provision ‘for boys as has given them Mogo’ (that being a reference to the New South Wales property which had passed to the sons from the estate of the deceased’s brother). His Honour noted that no evidence was led that any will was in fact prepared in accordance with this conversation with the Sydney solicitor. The solicitor’s files were available to be examined, and no evidence was led that any will consistent with or prepared pursuant to those instructions had come into being. His Honour said:
‘Why that is so is a matter of mere speculation. The evidence is as consistent with the deceased reconsidering the proposed change and determining to leave things as they were as the alternative possibility.’
- His Honour rejected a contention by the appellant that the deceased’s sons were not particularly attentive towards their father and that they placed or attempted to place inappropriate pressure on him so as to influence the terms of his will in their favour. In rejecting that contention, his Honour reviewed the evidence as to the impediments which stood in the way of the sons seeing much of their father, including distance, financial difficulties, and health problems. The sons each denied making telephone calls demanding that their father make a new will in their favour, and his Honour accepted those denials. In any event, as his Honour noted, there was no admissible evidence that any pressure was placed on the father by the sons.
- The trial judge then turned to consider the financial and personal situations of each of the appellant and the three sons. In that regard, it is sufficient to note:
(a)The appellant maintained she owned no property in Australia or the Philippines. Despite some evidence to suggest that she might own property in the Philippines, his Honour observed that without evidence of what property that might be, its value and her true title to it, any such property could ‘have no bearing on this application’. The appellant had minimal savings at the time she swore her affidavit in support of the application in December 2005. At that time she was working as a casual cleaner earning about $270 per week. In addition, she was receiving the Veterans Affairs Widows Pension, then worth about $260 per week. By the time of the hearing, the amount of the pension had increased to about $280 per week. His Honour said that he had the impression that her living expenses did not exceed her pension. Additionally, she is entitled to receive free medical care as a result of the Veterans Widows Pension.
(b)Ronald was aged 61 at the time of trial, being a self-funded retiree, receiving a pension from the Public Service Superannuation Fund of the Australian Government. He had an average weekly income in 2007 of $376. He owns a two bedroom cottage in Dalmeny, valued at between $270,000 and $290,000. At the time of swearing his affidavit in August 2006, he had some $79,000 in the bank, and owned a motor vehicle worth about $8,000. Ronald has significant health problems, having contracted a serious viral infection which damaged his immune system in October 2003, and subsequently having developed chronic fatigue syndrome. He has arthritis in both hips and is concerned that he will require hip replacements in the future which will cost more than $15,000 per hip. He is separated from his wife and has no dependent children.
(c)Dennis was 57 at the time of the hearing, and is married with two children, one born in 1980 and the other in 1985. He was employed as a factory hand, but due to health problems was on light duties for the last five years of his employment and was eventually retrenched in 2006. At the time of trial he received a Disability Support Pension of $200 per week. His wife was also unemployed, and received a pension of $200 per week. Their younger daughter, who suffers an intellectual impairment, lives at home and receives a Disability Support Pension of $500 per fortnight. Dennis deposed that this was not sufficient to cover the daughter’s needs and she is supported to some degree by him and his wife. He had no significant liabilities, owning a home in Fairfield West valued at between $300,000 and $330,000, savings of about $11,000, a motor vehicle worth about $8,800, and a superannuation fund valued at about $97,000 that he would be able to access once he reaches the age of 60. Dennis also has significant health problems, including osteoarthritis, such as to require bilateral knee replacements, gout, high blood pressure, a food allergy, and diabetes. His wife also has significant health problems, which are detailed in the judgment at first instance. His Honour also noted that the cost of Ronald’s and his wife’s medications alone account for nearly 40 per cent of their income.
(d)Gary was 55 years old at the time of the trial. He is a single man, having one child by a previous relationship. He pays $120 per week child support for that child, who was born in 1994. He has been employed for some 35 years as a maintenance carpenter at a Sydney hospital. His average net weekly income in the 2007 tax year was $752. He owns his own home at Chester Hill, valued at $330,000 to $340,000, a ‘weekender’ which is valued at $250,000, but over which there is a mortgage for some $113,000, a motor vehicle worth about $20,000 and a superannuation fund valued at about $111,000.
- His Honour then set out in appropriate detail the legal principles relevant to be applied in the present case, referring in particular to the Singer v Berhouse two-stage process, and noting also the significance of the word ‘proper’ in the phrase ‘proper maintenance and support’ by reference to McCosker v McCosker[3]. His Honour then said:
‘[92]Counsel each drew my attention to various authorities they contended assisted in the resolution of the case. The cases largely turn on their own facts as one might expect in a jurisdiction of this type.
[93]Of particular note is the reference that Mr Peterson made to Powell J’s dictum in Luciano v Rosenblum to the effect that as a “broad general rule” the duty of a testator to a widow is “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 unforeseeable contingencies”. I accept Mr Whiteford’s submission that the broad general rule has no application to this case. Mr Whiteford referred me to Elliott v Elliott, Bladwell v David, and Marshall v Carruthers in support of his submission. To the same effect is the decision of Macready AsJ in Borham v Montague to which Mr Peterson referred me. My reasons for that view I set out later.’
- It is appropriate to quote his Honour’s reasons for rejecting the submission that the appellant had demonstrated the need for further maintenance and support and that the appropriate order was one effectively giving to her the Coombabah residence and any leftover capital sum:
‘[96]In my view, the applicant has not discharged the onus of demonstrating that the provisions made for her in the deceased’s Will was inadequate for her proper level of maintenance and support. I do so for the following reasons.
[97]Firstly, this is a relatively small estate. After deduction of the Public Trustee’s costs it is worth only about $457,000. In such a case, what is “proper” must be adjusted to the circumstances: Allen v Manchester.
[98]Secondly, there is the arrangement that I have found was in place between the deceased and the applicant. It has considerable bearing on the “totality of the relationship between the applicant and the deceased” referred to as a significant factor by the High Court in Singer v Berghouse. By the disposition in the Will the applicant has received what she bargained for. Indeed with the windfall from the brother’s estate she has received considerably more than that.
[99]Thirdly, there is the short duration of the marriage – a period of about 42 months.
[100]I am, of course, mindful of the care and companionship that the applicant undoubtedly provided to the deceased in the last years of his life. I am mindful too that I should not, through the back door so to speak, permit the arrangement that was in place between the deceased and the applicant, result in an effective contracting out of the legislation. No doubt with the passage of time any arrangement entered into prior to marriage would become of less and less significance. However, I am not satisfied that such a period of time has passed in this case.
[101]Fourthly, there has been no contribution to the acquisition of the principal asset of the estate by the applicant and only some minor contribution to the maintenance of it – but this benefited her as much as the deceased.
[102]Fifthly, despite my view that this is not a case in which the dictum of Powell J in Luciano v Rosenblum has any application, the provisions in the will go a considerable way to meeting the test there laid down. I have described the applicant’s financial position. She is hardly well off. However, the provision made for her by the deceased would have provided her with a sum of money in excess of $110,000 and a motor vehicle. That sum of money would have been sufficient to provide the applicant with the standard of home that she enjoyed until the deceased received the windfall inheritance from his brother’s estate i.e. the relocatable home in the caravan park, and a small capital sum for contingencies. She had, and in my view maintains, a capacity to gain employment to supplement her pension. She has the benefit of a life time pension and free medical care.
[103]Sixthly, in my view, the sons had a legitimate claim upon the deceased’s bounty. It could hardly be said, as Mr Peterson submitted, that the sons are “comfortable”. Ronald Manly has a home and some savings but against that lives on modest pension and has multiple health problems with the prospect in the near future of undergoing bilateral hip replacements costing in the order of $15,000 per hip.
[104]Dennis Manly has multiple health problems, requires bilateral knee replacements with a potential cost of about $28,000, has a wife who has herself multiple health problems and supports a young daughter with an intellectual impairment. He has a home, modest savings and a superannuation fund that he can access when he turns 60.
[105]Gary Manly is 55 years of age and maintains employment despite multiple health problems. He supports a 14 year old child and is facing substantial medical bills. Given his health problems, Gary’s future employment prospects must be considered to be uncertain.
[106]Seventh, there is the fact that the deceased abandoned his children for 34 years. There is no doubt that the distribution of his inheritance from his brother’s estate to his sons in his lifetime must be weighed in the balance but I cannot accept that that distribution necessarily discharged all legitimate claims upon his bounty.
[107]Fundamental to Mr Peterson’s submissions as I understood them was the notion that the applicant had a legitimate expectation – that ought to be enforced by the court in this application – of receiving the same standard of accommodation as she had enjoyed in the last two years of the deceased’s life. I do not accept that there should by any such legitimate expectation in the circumstances that pertain here.
[108]Further, as Mr Whiteford submits, the authorities that Mr Peterson relied on do not support the applicant’s contentions here. They are all plainly distinguishable.
[109]Borham v Montague concerned an estate worth in excess of $1,000,000 and a marriage of about 12 years duration.
[110]Carpio v Roncalla involved an allegation on the part of the applicants that the deceased’s marriage to the respondent was a sham or a marriage of convenience. There the contention was rejected (and I note significantly because the widow had been appointed executor of the deceased’s Will and sole beneficiary and as well had transferred to her by the deceased in his lifetime for a nominal consideration a one-half interest in the house property – the contrary being the case here). The case is distinguishable further because there the widow was the respondent, not the applicant, and had no obligation to justify her entitlements under the Will and the applicants (the deceased’s sons and a former wife) had no significant contact with the deceased over a period of 18 years prior to his death.
[111]Horvat v Hocking involved an estate worth in excess of $1,700,000 and a marriage of about 14 years duration.
[112]Helmore v Helmore involved a relationship of some 20 years and a marriage of nearly 16 years. It was conceded by the executor that the applicant should receive an increased provision from the Will. The deceased had not made provision for the expenses attendant upon a move into a retirement village. The Chief Justice there held that such a move was foreseeable as at the date of making the Will and the applicant was in fact in a care facility at the date of death. Those are very different circumstances to the ones that pertain here.
[113]In my view, the applicant has not demonstrated that the jurisdiction of the court is enlivened to alter the distribution made to her under the Will.’
Disposition of the appeal
- As noted above, the grounds of appeal pursued by the appellant largely challenged the weight which the trial judge gave to the various factors which led him to determine the case against the appellant. The grounds advanced were:
‘(b)the learned primary judge failed to give any, or any sufficient, weight to the totality and length of the relationship between the appellant and the deceased, and that the relationship between them was one of love, affection and mutual dependence and support;
(c)the learned primary judge failed to give any, or any sufficient, weight to the care, assistance and companionship provided by the appellant to the deceased;
(d)the learned primary judge erred in rejecting the evidence of the appellant in respect of:
(i)her permanent back injuries;
(ii)her ability to earn an income for her own maintenance and support;
(e)the learned primary judge erred by concluding that the deceased did not fail to make adequate provision in his will for the proper maintenance and support of the appellant;
(f)the learned primary judge erred by finding that the present was a case to which the broad general rule expressed by Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 did not apply;
(g)the learned primary judge failed to give any, or any sufficient, weight to the totality of the relationship between the deceased and his sons;
(h)the learned primary judge failed to give any, or any sufficient, weight to the inter vivos provision made by the deceased for his sons in the form of his one half interest in certain land located at Mogo in New South Wales;
(i)the learned primary judge erred by giving preference to the needs of the deceased’s sons over the needs of the appellant.’
- In argument on the hearing of the appeal, counsel for the appellant focused particularly on the argument that the trial judge had placed undue weight on the agreement or arrangement which he had found existed between the deceased and the appellant. It was accepted in argument that, to show appellable error, the appellant bore the heavy onus of demonstrating that the trial judge had placed such undue weight on the existence of the prenuptial agreement as to infect the rest of his assessment of the relevant factors.
- In so doing, the appellant necessarily recognised that, on an appeal such as the present, the principles of law which govern appellate review of discretionary decisions by judges at first instance are apposite. So much is clear from the judgment of Mason CJ, Deane and McHugh JJ in Singer v Berhouse, in which their Honours agreed[4] with the following comments of Kirby P (as he then was) in the New South Wales Court of Appeal in Golosky v Golosky[5]:
‘Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.’
- As explained by Mason CJ, Deane and McHugh JJ in Singer v Berghouse[6], the two-stage process called for under s 41 requires:
(a)an initial determination as to whether the ‘jurisdictional’ issue has been satisfied, namely a determination of whether the applicant under s 41 has been left without adequate provision for his or her proper maintenance and support; and
(b)if the first issue is satisfied, then a determination as to the provision which ought be made out of the deceased’s estate for the applicant.
- In relation to the first stage, their Honours said[7]:
‘The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.’
- Their Honours further noted[8] that determination of the jurisdictional issue is strictly one of fact, notwithstanding that it involves the exercise of value judgments.
- In contrast, the decision on the second stage does involve an exercise of discretion in the accepted sense.[9]
- The difficulties which can arise in bifurcating the inquiry process in the manner propounded by the majority in Singer v Berghouse, in practical terms at least, arise from the need for a trial judge to make value judgments (which would impact on the exercise of the discretion under the second stage) while reaching a determination on a question of fact under the first stage. This sort of practical overlap was recognised by Callinan and Heydon JJ in Vigolo v Bostin[10]:
‘We do not therefore think that the questions which the court has to answer in assessing a claim under the Act necessarily always divide neatly into two. Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters, however, will never be conclusive. The age, capacities, means and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.’
- That being said, the task confronting the appellant in the present case was to demonstrate to this Court that, in undertaking the evaluation process which led him to make his findings concerning the first stage of the process, the trial judge had applied some wrong principle of law, had relied on extraneous or irrelevant matters, had mistaken the facts, or had not taken a material consideration into account[11] or that the result was so unreasonable or plainly unjust that the court should infer that no proper evaluation was undertaken[12].
- In my view, no such error has been demonstrated in the present case. The trial judge, in the passage quoted above, enumerated the various factors to which he had regard in making his evaluation as to whether it had been demonstrated that adequate provision had not been made from the estate for the proper maintenance and support of the appellant. His approach in that regard was completely conventional, and in accordance with principle. Each of the factors identified by his Honour was a relevant matter for consideration in the evaluative exercise. The fact that I might have reached a different conclusion in undertaking that evaluation is not to the point (although, I should note that I would not, in fact, have differed in the outcome). In particular, it does not seem to me at all to be the case that his Honour placed undue weight on the fact of the prenuptial arrangement between the appellant and the deceased. The existence of that arrangement was one of the numerous factors to be weighed in the mix, and the appellant has not demonstrated that his Honour placed such an inordinate amount of weight on that factor as to vitiate the evaluative exercise he undertook.
- The challenge to the trial judge’s findings concerning the appellant’s health and earning capacity is devoid of merit. Having articulated the basis for treating the appellant’s evidence with caution, the trial judge’s rejection of the appellant’s claimed disability and diminished earning capacity was completely warranted in the absence of any independent evidence to support her claims.
- The appellant’s invocation of the ‘broad general rule expressed by Powell J in Luciano v Rosenblum’ is, to my mind, of no assistance. In Luciano v Rosenblum[13], Powell J said at 69-70:
‘It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator t 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.’
- One would, I think, have legitimate cause to doubt the true generality of application of that ‘rule’ in modern Australian society. At the very least, I would respectfully adopt the following observations about the ‘rule’ by Young CJ in Eq in Marshall & Carruthers[14]:
‘[73]It must be remembered that Powell J put his proposition as a “broad general rule”. However, there is in fact no “standard former spouse” to which one can just apply that proposition as a rule of thumb.
[74]Powell J’s broad general rule may not be a good guide as to what the Court will consider as the duty of a testator except in the case of a financially dependent spouse where there is a history of bringing up children with the deceased or in supporting the deceased while he was amassing his fortune. The broad general rule may well be inapplicable in cases of other spouses. Indeed, the cases in the first half of the 20th century show that as far as widowers were concerned, the proposition was quite untrue.
- Given the short duration of this marriage, the fact that the appellant had made no real contribution to the estate (either financial or by way of support in building up the estate), and the terms of the arrangement between the appellant and the deceased, this could not be regarded as a relationship to which the “broad general rule” could be said to apply.
- Otherwise, I do not consider that the appellant has demonstrated any error by the trial judge in the evaluative exercise undertaken by his Honour for the purposes of determining the jurisdictional issue under s 41. The appeal should be dismissed.
- As to the question of costs, there is, in my view, no reason why the unsuccessful appellant should not pay the respondents’ costs of the appeal. The respondents were the Public Trustee, as executor and trustee of the will, and Ronald, Dennis and Gary Manly as beneficiaries under the will. I would respectfully adopt the following observation by Thomas J (as he then was) with whom McPherson ACJ and Byrne J agreed, in Re McIntyre[15]:
‘It is in my view essential that a distinction should be maintained in the approach to costs at first instance and on appeal. Applicants and their advisors should not think that they can bring appeals confident in the knowledge that the estate will in all probability be obliged to pay for the exercise. What I have called the indulgent attitude of judges of first instance to unsuccessful applicants has no place in the appeal process. A litigant has a right under the rules of court to test a judgment by bringing an appeal, but he has no similar right to do so at the expense of the other party or estate.’
- Those observations have particular relevance in a case such as the present in which the value of this modest estate has already been significantly diminished by reason of the costs properly incurred in the challenge at first instance. It would, in my view, be quite unjust for this appellant to be relieved from the usual consequence of paying the successful respondents’ costs of this appeal, particularly if that were to be accompanied by an order which had the effect of even further diminishing the value of the estate.
- Accordingly, I would order that the appeal be dismissed with the appellant to pay the respondents’ costs of and incidental to the appeal.
Footnotes
[1] Manly v The Public Trustee of Queensland [2007] QSC 388.
[2] (1994) 181 CLR 201 per Mason CJ, Deane and McHugh JJ at 208-210.
[3] (1957) 97 CLR 566 per Dixon CJ and Williams J at 571-2.
[4] At 212.
[5] Quoted at 212.
[6] At 208-209.
[7] At 209-210.
[8] At 210-211.
[9] Ibid at 211.
[10] Vigolo v Bostin (2005) 221 CLR 191; 213 ALR 692 at [122].
[11] In accordance with the established principles enunciated in House v R (1936) 55 CLR 449 at 504-5.
[12] Applying Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627.
[13] (1985) 2 NSWLR 65.
[14] [2002] NSWCS 47.
[15] [1993] 2 Qd R 383 at 388.