DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 February 2005, Scott Pinkstone (the respondent) applied to the Court pursuant to s 41(1) of the Succession Act 1981 for adequate provision out of the estate of his late father Donald William Pinkstone (the testator).  The testator died on 28 May 2004.  His widow Ursula Pinkstone (the applicant) was granted probate of his last will dated 3 October 2003 on 2 December 2004.  She is the sole beneficiary.  The applicant married the testator on 24 June 2003 and lived with him until he was hospitalised about three weeks prior to his death.  The respondent is one of three adult sons of the testator.  He is 44 years of age, married with two children.  He is a structural engineer and is employed.  He has some assets, but no real estate.

2. [2]
   The applicant seeks an order that the application for adequate provision by the respondent be struck out. The parties agree that the application is really in the nature of a summary judgment application pursuant to r 293 of the Uniform Civil Procedure Rules, and that, in order to succeed the applicant must demonstrate that the respondent has no real prospect of succeeding on all or part of his claim and; there is no need for a trial.  The applicant will not succeed unless she can satisfy me that the respondent’s case is “hopeless, or bound to fail”: per Chesterman J in Gray v Morris [2004] QCA 5.  Her application is not characterised as an application to strike out the respondent’s claim on the basis that it discloses no reasonable cause of action: r 171(1)(a) of the Uniform Civil Procedure Rules and see Higgins v Higgins & Anor [2005] QSC 110.  Although Mr Alldridge, for the respondent, did initially rely on an argument that the application should be dismissed on the basis that it was inconsistent with Practice Direction 8 of 2001, he properly conceded that the application can be considered now on the merits.  This accords with the reasoning of White J in Higgins.  In any event, an application such as this was contemplated by the draft directions order filed by the parties on 15 April 2005.

3. [3]
   There are three bases advanced by Mr Conrick on behalf of the applicant which he says will satisfy me that indeed the respondents case is hopeless. The first argument relates to the size of the estate which is small, and the second and third relate to the issues of proper maintenance of an adult child, and the surviving widow.

4. [4]
   Before dealing with the submissions of each party on these issues, I should mention a number of side issues.

5. [5]
   In the material, the solicitors for the respondent raise a question about the validity of the testators last will. As Probate has been granted, the validity of the will cannot be called into question in these proceedings. Mr Alldridge does not contend otherwise.

6. [6]
   There are a number of factual disputes raised in the material thus far. The respondent alleges that he notified the applicant of his intention to make a claim on the estate, prior to her transferring a Toyota Landcruiser valued at at least $44,000 into her own name. She denies this, and said the transfer took place in good faith. Mr Conrick concedes that for the purposes of this application I should proceed on the assumption that these disputes will be resolved against his client.

7. [7]
   Mr Alldridge has also argued, somewhat faintly, that two cheques which allegedly were transferred from the testator’s account to his wife in March 2004 totalling $56,000 could be deemed as part of the estate pursuant to s 41(12) of the Succession Act 1981.  There is no suggestion of any lack of capacity on the part of the testator at any time; and in any event it is very difficult to see how sums of money paid by him to his wife in March i.e. some months before his death, could be seen as gifts in anticipation of death to be intended to take effect on death.

8. [8]
   It follows that for the purposes of determining the application, the estate should be regarded as having a nett value of $65,978.45. The respondent estimates that his costs of proceeding with his application to trial will be $23,000 plus GST, and the applicant estimates her costs at $20,000.

9. [9]
   With these preliminary issues in mind, I now turn to the substance of the applicant’s arguments.

Small Estate

10. [10]
    It is common ground that it is a small estate which will be reduced by over two thirds its nett value by legal costs if the matter proceeds to trial. The learned authors of “Family Provision in Australia & New Zealand” say this (at page 23):

“It is submitted that the correct approach to be made in applications in small estates is as stated by Goff LJ in Re Coventry [1979] 3 All ER 815 where he said “applications in small estates should be discouraged, because the costs tend to become wholly disproportionate to the end in view, although, of course that does not mean that an application cannot be made in a small estate nor that when made it should not be duly considered on its merits.”

11. [11]
    As they note, there is no hard and fast rule that applications in small estates should be dismissed with costs, but sometimes this is the result: Re Vrint [1940] Ch 920, 3 All ER 40.

The testator’s obligation to a surviving spouse

12. [12]
    In Luciano v Rosenblum (1985) 2 NSWLR 65 Powell J observed (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 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 unforseen contingencies.”

13. [13]
    Obviously, the duration of the marriage is a relevant factor here which has to be measured against other factors including the size of the estate.

Proper maintenance of an adult child

14. [14]
    The learned authors of “Family Provision in Australia & New Zealand” say (at page 316) (by reference to authority):

“Generally speaking an adult son is not in a strong position as an applicant.  The reason is that, in the absence of evidence to the contrary, an adult son is expected to be able to support himself.  Indeed, where an adult son in good health and supporting himself and his family has applied and there are no other factors or special needs in his favour, he has failed in his claim.”

15. [15]
    In the Will of Lewkowicz [2001] ACTSC 54 at paragraph 40 Miles CJ in rejecting the claims of adult children said:

“In the case of all the male plaintiffs, each is a mature adult, married with a family, well established in life and moderately comfortable from a material point of view.  In In re Sinnott, deceased (1948) VLR 279, in what Dixon CJ was to describe as ‘perhaps the soundest and most illuminating of all the discussions of the statutory provisions’ (The Pontifical Society for the Propagation of the Faith v Scales (1961-62) 107 CLR 9 at 19), Fullagar J remarked at 280 (in terms which are modified only to meet the demands of modern notions of general awareness):

“No special principle is to be applied in the case of an adult [child].  But the approach of the Court must be different.  In the case of … an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported.  But an adult [child] is, I think, prima facie able to ‘maintain and support’ himself [or herself] and some special need or some special claim must, generally speaking be shown to justify intervention by the Court under the Act.”

16. [16]
    Mr Conrick submits that when one looks at all of these factors in combination, that is the size of the estate, the legitimate claim of the widow, and the absence of any special need or special claim in the respondent’s application; the application for adequate provision is bound to fail at the first stage of the two stage process approved by the High Court in Singer v Berghouse (1994) 181 CLR 201, recently affirmed in Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, 9 March 2005.

17. [17]
    As I understand Mr Alldrige’s final argument, he submits that the preliminary steps contemplated by the draft directions order would be undertaken first however, that ignores the fact that the directions contemplated an application like this and, secondly I am bound to determine the application now in accordance with the relevant principles. Given the dates of the payments of the two cheques by the testator to the applicant relative to the date of his death, in the absence of any other evidence, I am extremely doubtful that such payments could qualify as a donatio mortis causa for the purposes of s 41(12) of the Succession Act.  Even if these payments did so qualify, the estate is still small, and the other factors, particularly the absence of any special need or claim by the respondent as an able bodied professionally qualified adult son of the testator satisfy me that the respondent’s claim pursuant to s 41 is bound to fail, and has “no real prospect of being successful”: per the Court of Appeal in Bernstom v National Australia Bank Limited (2003) 1 Qd R 469 at 475 in a direct quote from the judgment of Lord Woolf in Swain v Hillman [2001] 1 All ER 91 at 92.

18. [18]
    The respondent’s application filed on 24 February 2005 is dismissed with costs. The application seeks indemnity costs. No submission was made at the hearing to support such an order, but I will permit the applicant to make a submission if she is advised.