Re an application by Steinmuller
[1998] QDC 96
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Re an application by Steinmuller[1998] QDC 96
- Add to List
Re an application by Steinmuller[1998] QDC 96
Re an application by Steinmuller[1998] QDC 96
DISTRICT COURT | No 8 of 1997 |
CIVIL JURISDICTION
JUDGE ROBERTSON
IN THE MATTER OF the Succession Act 1981
and
IN THE MATTER OF the will of GORDON SPENCER STEINMULLER
and
IN THE MATTER OF the application by his widow FAY ELIZABETH STEINMULLER
BRISBANE
DATE 11/05/98
JUDGMENT
HIS HONOUR: The applicant Fay Elizabeth Steinmuller seeks further provision from the estate of her husband Gordon Spencer Steinmuller who died on 6 December 1996. He is survived by the applicant and four adult children of his first marriage: Peter Donald Steinmuller, Paul Gordon Steinmuller, Mark Fergus Steinmuller, and Helen Gwendolyn Nimerawi.
The applicant married the Testator on 8 December 1972 and from that time until his death resided with him in a house at 115 Whitehill Road Ipswich which he had owned for many years.
The Testator made his last Will on 19 July 1990. It appoints his four children executors and trustees and provides that, if his wife Fay does not survive him, the whole estate is to go to them in equal shares. If she does survive, as occurred, she is given his motor car; and, his house at Ipswich with furniture and contents, and the proceeds of an MLC life policy are given to his trustees upon certain trusts:
- “(a)As to the realty comprising my said home and the furniture and contents thereof to permit my said wife to reside in occupy use and enjoy the same for her own use and benefit whilst she remains my widow and does not remarry and subject to her paying electricity power and telephone expenses in connection with her occupancy and enjoyment of the home
- (b)As to the two garages on my home property and notwithstanding my said wife's occupancy of my home pursuant to the power conferred by the foregoing trust provision to permit the said Mark Fergus Steinmuller to continue to make use of such garages for storage of stock and other purposes in connection with his jewellery business with all necessary rights of access thereto at all times
- (c)As to my said Life Policy to obtain the proceeds thereof and invest them in their names as such trustees in First Provincial Building Society of Ipswich aforesaid and out of the income from such investment to maintain and keep my said home painted and in good repair and to pay the rates insurance and other outgoings in respect thereof other than power and telephone expenses
- (d)Upon the death or remarriage of my said wife to transfer the realty comprising my home and to deliver and hand over the furniture and contents thereof to themselves as beneficiaries absolutely as tenants in common in equal shares or at the discretion of my Trustees to sell the realty comprising my home and the furniture and contents by private treaty or otherwise at such price as they shall deem fit and divide the proceeds of such sale between them as beneficiaries in equal shares and to pay to themselves in equal shares absolutely as beneficiaries the invested proceeds of my said Life Policy and any interest accrued thereon and remaining unexpended on the death or remarriage of my said wife.”
All the rest and residue is given to the children in equal shares.
There is no grant of probate and by her application filed 9 April 1997 and amended 16 June 1997, the applicant seeks an order that the application be heard and determined notwithstanding the absence of a grant. There is no contrary argument on behalf of the executors, and having regard to the size of the estate, it is appropriate to order that the application be determined notwithstanding the absence of grant. (See Succession Act 1981, as amended, section 41(8)).
It is agreed that the estate initially consists of:
- (a)the Ipswich house;
- (b)the proceeds of the MLC policy - $52,419.84;
- (c)the Nissan motor vehicle;
- (d)furniture, cutlery, crockery, et cetera.
The total value of the furniture and effects as set out in annexure B to the applicant's affidavit filed 3 April 1998 is $11,225. It is not disputed that the items marked “M” were acquired during the marriage and therefore pass to her by survivorship. The house is valued at $92,000.
The Law
Section 41 of the Succession Act 1981 provides that where any person dies and adequate provision is not made from the estate, under a Will or upon intestacy, for the proper maintenance and support of the deceased person's spouse, child or dependent the Court may, in its discretion and on application by or on behalf of one or more of those persons, order that such provision as the Court thinks fit be made out of the estate for their benefit.
The starting point is that the Will-making power of a person of sound mind, memory and understanding is unrestricted. A Will-maker is entitled to leave his or her estate to whomsoever he or she pleases, subject only to the duty imposed by the Act: Dillon v. Public Trustee of New Zealand (1941) AC 294 at 301 (PC).
There are clearly defined principles upon which the Court must act. There is no discretion merely to re-make a deceased's Will upon some abstract principles or fairness or justice: Worladge v. Doddridge (1957) 97 CLR 1 at 20-21 per Kitto J. - not dissented from in this respect by the High Court in White v Barron (1980) 144 CLR 431 (and, see the unreported decision of the Queensland Court of Appeal in Perpetual Trustees v Mayne, unreported judgments, 92.417). Nor should an application be approached on the basis of the compensation or restitution in respect of the money or assets which the applicant may have given to the deceased, or by a process measured by the extent to which the applicant may have built up the deceased's estate (although those might be material factors).
In recent years the Courts have adopted a two-stage process for determining these applications:
- (a)the jurisdictional issue - the jurisdiction of the Court only arises if and when applicants satisfy the Court that adequate provision has hot been made for them;
- (b)the quantum of provision - if the first issue is decided in the applicant's favor, the Court must then exercise its discretion to consider whether any order will be made and, if so, in what amount: White v Barron (supra); Goodman v Windeyer (1980) 144 CLR 490; Singer v Berghouse (No 2) (1994) 181 CLR 201.
Hence the first and primary inquiry is whether or not the applicant has shown that as at the date of the deceased's death adequate provision was not made from the estate for his or her proper maintenance and support. The question must be considered having regard to the situation which prevailed at the date of death “surrounded by the very circumstances which surrounded the actual Testator at the time, but fully alive to all those circumstances, including all the possibilities for the future to which it was reasonable that he or she should attend”; per Kitto J. In Coates v National Trustees (1956) 95 CLR 494 at 526, approved by the Privy Council in Dun v Dun (1959) 100 CLR 361, by Dixon C.J. in Blore v Lang (1960) 104 CLR 124 at 128, by the Queensland Full Court in re Elwell (1977) Qd.R. 141, and by Mason J. in White and Barron (supra) at 441.
If, but only if, the Court answers that first and primary question in the affirmative then it may, subject to the other provisions of the Act, proceed to make an appropriate order in the exercise of a wider discretion conferred upon it in all circumstances of the case as they have come to exist at the time of trial: Coates (supra) per Dixon C.J. at 509.
In approaching the first inquiry, it is not simply a question of adding up the applicant's assets at the date of death (or subsequently) and attempting to conclude in an abstract manner whether it could possibly be said that he or she, with those assets, was left without proper provision from the estate: see, e.g., Bosch v Perpetual Trustee Co (1938) AC 463 at 481 where the Judicial Committee refused to conclude that, apart from sums which are obviously fantastic, an applicant in possession of a particular sum or assets of his or her own could not possibly bring himself within the Act. The applicant's financial circumstances and assets must be measured relatively by some yardstick, depending upon all the circumstances of the case: see the judgment of Dixon C.J. and Williams J. in McCosker and McCosker (1957) 97 CLR 566 at 571-2:
“As the Privy Council said in Bosch v Perpetual Trustees the word ‘proper’ in this collocation of words is of considerable importance. It means ‘proper’ in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the Testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation... If the Court considers that there has been a breach by a Testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance, education or advancement in life of the applicant, having regard to all these circumstances, the Court has jurisdiction to remedy the breach and for that purpose to modify the testamentary dispositions to the necessary extent.”
Hence, this examination of the circumstances may lead to the conclusion that no provision is, nevertheless, “adequate no provision”: Pontifical Society v Scales (1962) 107 CLR 9 at 19; re Donovan, unreported (Supreme Court, Brisbane, Connolly J, 29 June 1978, O.S. 455 - 78).”
The relevant surrounding circumstances ordinarily include the size and nature of the estate; distribution effected under the Will, or upon intestacy; the applicant's financial position; the relationship between the applicant and the deceased; and, the needs and moral claims of those who already take benefit under the Will, or have also applied: Singer v Berghouse (supra) at 210.
The claim of a widow is usually described as paramount: re Allardice (1910) 29 NZLR 959 at 964 (CA). As Williams and Fullagar J.J. said in Worladge v Doddridge (1957) 97 CLR 1:
“... It is clear that the present Testator would have been guilty of a breach of his moral duty unless he provided for his widow out of his estate a sufficient allowance to free her from reasonable fear of insufficiency in her advancing age.”
There have been a number of similar statements in subsequent cases, helpfully collected by Hedigan J. in King v White (1992) 2 VR 417 at 424 to 5:
“Proper maintenance means more than a provision to keep the wolf from the door - it should at least be sufficient to keep the wolf from lurking around the house. That is, it should be sufficient to free the mind from any reasonable fear of insufficiency as age increases and health and strength gradually fail. Re Harris (1936) 497 per Cleland J.
It may probably be said with truth that the proper maintenance which a testator owes to his widow in cases where there are no claims of other dependants is such maintenance as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime or would have been so accustomed to if her husband had then done his duty to her, “Re Crewe (1956) NZLR 317 at 323.... “In this day and age, a testator who only gives a life estate to his widow could, and has no other direct claims on his bounty, is usually not making provision for the widow. At the very least, the Testator should consider the fact that if the widow does survive him for a number of years her health position will mean that she needs flexibility in her accommodation, and this sort of life estate almost always does not provide it” That is Court and Hunt, unreported (Supreme Court of New South Wales, Young J. 28 October 1987)
... The view that I have taken in many of these cases is that with respect to a spouse in his or her ‘60s or ‘70's or later, a life estate is not likely to be adequate provision because of the changing circumstances of the spouse as old age advances. In addition to such problems, there are usually other unavoidable problems connected with who should bear expenses of a capital nature of the estate whilst the surviving spouse is enjoying its fruits.” Caldwell v Ang unreported (Supreme Court of New South Wales, Young J. 22 March 1991).
“Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband, and assisted him to build up, and to maintain, his Estate, the duty of which a deceased owes to his widow can be no less than, to the extent to which his assets permit him to achieve that result: first, to ensure that his widow be secure in her home for the rest of her life, and that if, either, the need arises or the whim strikes her, she have capacity to change her home; secondly, that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worries; and, thirdly, that she have available to her a fund which she might resort in order to provide herself with such modest luxuries as she might choose, and which would provide her with a hedge against any unforeseen contingencies or disaster that life might bring.” Elliott v Elliott, unreported (Supreme Court of New South Wales, Powell J., 18 May 1984).
In King (supra) Hedigan J. referred with approval to the judgment of Rath J. in Shah v Perpetual Trustee Co (1981) 7 Fam. L.R. 97. The Testator left his widow a legacy of $60,000, and her daughter another legacy of $30,000, with the residue to charity. The widow also had a bare right of occupancy in the former matrimonial home. Rath J., finding that the estate was of modest size and the house had for a long period been the matrimonial home and the plaintiff had a strong moral claim to regard it as her own, ordered that it be devised to her.
An issue which often arises in the case of applications by widows or widowers in later years is the relevance, and effect, of social security pension benefits. In re Beard (1963) Qd.R. 90 Stable J. briefly looked at the issue of the receipt by a dependent widow of a repatriation pension but was not prepared to conclude that the testator ought to have foreseen his widow would have received that pension and similarly took it into account as a fact “existing at the time of making the order.” In Shah (supra) Rath J. expressed the view that he did not think the consideration of the pension entitlements of the plaintiff and their continuance in the future would assist in the formulation of proper provision for her:
In King v White (supra) Hedigan J. said at 424:
“There would I think be strong public policy reasons against permitting the moral obligations of Testators to make adequate provision for the proper maintenance and support of those with claims on their bounty to be deflected by resort to the expectation of the continued payment from the public purse to survivors of sums in satisfaction of the Testator's duties. Moreover, there could be no legitimate expectation that the payment of social service or old age entitlements would continue at any particular level on the same conditions, or be appropriately linked to rising costs. Further, the provision of such benefits are subject to political vagaries. It is a fact well known in the community that the receipt of the old age pension is now assets and means tested.”
Mr Innes for the executors referred to the extract from de Groot & Nickel's, “Family Provision in Australia and New Zealand.” at p. 308 where it is said:
“It would be true to say that, as a general rule, the moral claim of a second wife is not as great as, “That of the widow who has lived with the testator for the whole of his married life, assisted to build up his estate, managed his household during the whole of that time, cared for and brought up his children, and generally acted as his partner in the business of life.” Cunningham v Cunningham (1936) GLR 419 at p 420.
This simply accords with common sense, however the Court is still obliged to consider the application on its merits having regard to the relevant surrounding circumstances referred to in Singer v Berghouse (supra) at 210.
Relevant circumstances
- (a)size of Estate
The estate is indeed a small one, and regrettably much depleted as a result of the Court proceedings. At the date of trial the cash on hand was reduced to $26,828 from which will be deducted the balance of the legal fees of the parties estimated at $20,500 thus leaving only a small sum in cash.
- (b)The Distribution Effected by the Will
Clause (a) of the Will is unclear as to whether the applicant is granted a mere right of residence, or a life interest or some form of limited life interest. When, as here, all the parties affected by a construction question are before the Court in a family provision application and consent, it is proper for the Court to decide both issues: de Groot & Nickel's “Family Provision in Australia and New Zealand.” paragraph 602; re Langley (1974) 1 NSWLR 46. The Executor's view, as set out in a letter from the solicitors dated 2 April 1998, is that the clause, “Confers only a right to use and occupy the property.”
The words, “To permit my said wife to reside” usually connote a personal licence and not a proprietary interest; but the words, “occupy use and enjoy” may suggest an intention to confer a life interest: re Exeter, unreported (McPherson J. 9 March 1998, O.S. 1090/87), discussed in Re Mayer (1995) 2 Qd.R. 150.
As in this case, the reference here to a mere, “Permit... to reside”, combined with a limitation to widowhood points more strongly to a mere right of residence.
The terms of clause (b) strengthen the view, which I take, that clause (a) confers on the applicant a mere right of residence and not a determinable life interest.
- (c)The Relationship between the Applicant and the deceased.
The applicant married the Testator on 8 December 1972 and came to live with him in a house he owned at Ipswich, in which they always resided. At the time she had about $7,500 which she applied to purchase furniture, et cetera, for the home, and to improve it.
She and her husband enjoyed a pleasant lifestyle. He had a watchmaking and jewellery business in Ipswich and worked in it virtually up to the time of his death, although it was sold to his son Mark in about 1983, but the relationship had its ups and downs, as the evidence of the respondents disclose, and there was some tension.
Significantly, the applicant says that although she worked in the shop for the first six years of the marriage her husband never confided information about his financial affairs to her, there always seemed to be adequate money for the daily needs and they enjoyed a pleasant lifestyle. She believed that her husband had income from the jewellery business or the proceeds of sale which meant that they would be well provided for in their old age, and she thought that even though her husband had sold his business to his son, his continued attendance there meant that “income was derived from it as before”. As a consequence of a Will her husband made in 1985 she also believed that she would receive the house “and have sufficient moneys from the insurance policy”, to maintain a reasonable lifestyle if he predeceased her. In fact, as the affidavit of Mark Steinmuller shows:
- (a)the business was transferred without consideration;
- (b)notwithstanding the transfer to Mark the deceased continued to work in the business - but received no wage; and
- (c)when the lease on the business was sold to Kern in about 1987 Mark received about $100,000; but, the deceased had access to that money and at the date of death only $7,000 remained.
The inescapable conclusion is that the deceased only managed to maintain the applicant and himself at a reasonably pleasant and comfortable level by drawing money from that fund. Because he never told the applicant about it or, indeed, anything of his finances, she was induced into believing his financial circumstances were far better than, in truth, they were. As the applicant says in her first affidavit, he was all secretive about his financial position “and even moreso in his last years”, and she was never made privy to arrangements between himself and his children. Nor did she know of the terms of his last Will, or even that he had made it. It also appears that, unbeknownst to her, he may have gambled significant sums away.
There was some brief cross-examination of the applicant, although to a large extent the application proceeded on the basis of the affidavit material filed by the applicant and three of the four adult children of the deceased by his first marriage. There was some mild dispute concerning the extent to which the applicant had cared for the deceased in the latter stage of his illness. It is clear that, despite terminal illness the deceased was robust and indeed able to work up to his death. On the other hand, I am satisfied that the applicant performed all necessary care for him in this period including nursing care late at night after the frequent occasions when he was hospitalised. It also became clear in the applicant's oral evidence, that apart from one task, that is taking out the rubbish, every other domestic task throughout the marriage was performed by the applicant, and she so served the deceased for the whole of their married life. She also worked in the business initially and then later contributed by doing unpaid work in relation to typing valuations and other tasks.
It is also clear on the evidence that the applicant is completely estranged from the four children of the deceased's former marriage. This was so from the outset, and all parties acknowledged the fact. The deceased contributed to the estrangement by acting secretly and encouraging the mistrust between the others. It is therefore understandable that the applicant now wishes to move away from Ipswich to live close to her children by her former marriage.
- (d)The Applicant's Financial Position.
The applicant is aged 68. Since the death of her husband she has continued to reside in the Ipswich house supporting herself on the part pension and part-time work at TAFE. She has significant health problems requiring considerable expenditure which will inhibit her ability to work and worsen with age. Her financial position is poor. She has jewellery worth $4,000, and savings of less than $7,500. Her education in recent years means she owes a HEC refund of $4,492. Her modest average weekly expenses are about $225 (of which only $40 is for food and household items - plainly she is living very frugally). Her income at present is about $258 per week from the pension and part-time work.
She is 68 and wants to retire. She wishes to move to the central New South Wales coast to be near her daughter who is extremely ill and wheelchair dependent and bed-ridden about 80 per cent of the time.
If she gives up work she will be entitled to a full pension of $175 per week.
- (e)Needs and Moral Claims of Respondents.
Only three of the four adult children of the deceased's first marriage filed affidavits. Mark said he is self supporting from his jewellery business, although he has a dependent wife and child. Otherwise he gives no information about his assets or liabilities, or income and expenses. At the time he filed his affidavit Peter was unemployed and being supported by his wife who worked as a nursing sister. He had no other dependents. However, he has not filed anything to rebut the applicant's assertion that he only recently ceased employment with SEQEB and received a redundancy package worth $270,000.
Helen works as a nursing assistant at a hospital. Her husband is employed in the New South Wales Railways and they have three children. She is also a potter and has for some years received income from the pottery business, but again does not disclose particulars. She and her husband own their own home, although she claims it is encumbered by a large mortgage debt. She is in good health.
In the absence of any specific information the Court is entitled to assume those three respondents, and Paul who has not filed an affidavit, do not have “need” in the relevant sense. As Ormiston J. Said in Anderson v Teboneras (1990), VR 527 at 535:
“If a beneficiary says nothing as to his or her financial or other claims on the testator's bounty, then the Court is fairly entitled to assume that the beneficiary has no special claim other than relationship and that, in particular, he or she has adequate resources upon which to live.”
CONCLUSIONS
The respondent's submission is that the application should be dismissed. It is submitted that there has not been any failure of moral duty on the part of the deceased towards his widow, and the provisions in the Will referred to above will give the applicant the benefit throughout her widowhood of the entire estate. Alternatively, Mr Innes submitted by reference to table 3.4 commencing at page 56 of de Groot & Nickel's that at the very most the applicant should received one half of the net remaining estate. It is difficult to assess the weight of that submission by reference to the table alone. For example, the case of White v Barron (1980) 54 ALJR 333 involved a much shorter marriage and a larger estate.
The marriage here subsisted for 24 years. The marriage did have its ups and downs, however, it is clear that there was a fondness on both sides, and the deceased heavily depended on the applicant to make his home and provide all domestic needs thus freeing him to work in the business and later to continue to work up to six days for Mark for no wage. She also helped in the first six years by working part-time in the business, and thereafter she did the books at home and continuing for up to as late as two years before her husband's death (notwithstanding that he had sold the business to Mark in 1982). She brought into the marriage $7,500 in cash and assets plus furniture, crockery and personal affects and has very little left. When she arrived at the home it was in extremely poor condition. She worked hard throughout the marriage to clean the house and to improve and maintain the garden. She paid from her own money for a great many improvements, repairs and renovations to the home, and she did this in the mistaken belief that her husband had not changed the 1985 Will in her favor. In my view, it was wrong for the deceased to mislead her in this way, and thereby he has induced her into continuing to contribute her own moneys to improving the home. She cared for him throughout his illness and in the final years of his life.
I am therefore satisfied that adequate provision has not been made for the applicant by the Will of the deceased. In the circumstances, I am required to consider what order would be made. I have noted the depletion of the cash reserves of the estate, and in those circumstances in my view it would be inequitable to concur with the applicant's primary submission and to order the applicant to receive the house and some cash.
I have determined that the applicant should receive $65,000 from the whole of the estate together with some items of personal property. I have requested the parties in the light of these findings to submit a draft consent order and I am grateful to the parties for doing that promptly.
In the circumstances, I order that further and better provision be made out of the estate of the abovenamed deceased person for the applicant Fay Elizabeth Steinmuller by the Will of the deceased being read and construed as if clauses A to D, inclusive were deleted and the following clauses inserted in lieu, A, to pay all debts and testamentary expenses; B, to pay the applicant the sum of $65,000; C, to give the applicant the following items:
- (i)plastic table and 4 tubular chairs;
- (ii)small round table;
- (iii)super cook electric barbecue;
- (iv)timber barbecue setting including table and 3 stools;
- (v)round metal table;
- (vi)four stacking chairs;
- (vii)small barbecue;
- (viii)small tubular table;
- (ix)Italian veneer chest of drawers;
- (x)Ansonia ornate mantle clock;
- (xi)two Arch Gratton paintings in the lounge room;
- (xii)four minor paintings;
- (xiii)tub chair with tapestry seat;
- (xiv)grandfather chair (reproduction);
- (xv)table lamp;
- (xvi)three piece lounge suite;
- (xvii)oak nest of tables;
- (xviii)small table;
- (xix)lamp;
- (xx)Margaret Olley painting;
- (xxi)standing lamp;
- (xxii)oval tripod table;
- (xxiii)writing bureau;
- (xxiv)dining chair - balloon back;
- (xxv)piano stool;
- (xxvi)ornate mirror;
- (xxvii)barometer;
- (xxviii)Italian dumb waiter;
- (xxix)Arch Gratton painting in the dining room;
- (xxx)Wedgewood 48 piece plain white dinner service;
- (xxxi)cuckoo clock;
- (xxxii)National microwave oven;
- (xxxiii)Hoover dryer;
- (xxxiv)clothes rack;
- (xxxv)Sharp automatic washer;
- (xxxvi)pine chest of drawers;
- (xxxvii)wall mirror;
- (xxxviii)four drawer filing cabinet;
- (xxxix)two occasional tables;
- (xl)divan;
- (xli)Phillips colour TV;
- (xlii)Bench with wall shelves;
- (xliii)traymobile;
- (xliv)Panasonic TV;
- (xlv)magazine rack;
- (xlvi)desk;
- (xlvii)swivel chair;
- (xlviii)chair in back bedroom;
- (xlix)386 computer complete;
- (l)recliner chair;
- (li)two occasional tables;
- (lii)Panasonic sound system;
- (liii)pair of clock and temperature gauge;
- (liv)wall prints in the back bedroom;
- (lv)timber occasional table.
Each party's costs of and incidental to this action including reserved costs (if any) be taxed as between solicitor and client and be pare out of the estate of the deceased.