DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application under Pt 4 of the Succession Act 1981 for an order that further and better provision be made for Leonie Grace Messenger (‘Leonie’) out of the estate of her mother. Leonie is one of the daughters of the testatrix Grace Kelly (‘Grace’) who died on the 28^th June 2004.  Two of Grace’s other daughters, Elaine Patricia Kelly (‘Elaine’) and Judith Crosland (‘Judith’) had also made similar applications against the estate, however each had subsequently discontinued with their respective actions prior to Leonie’s application being heard. In her last will and testament dated 8^th February 2000, Grace appointed her daughter in law, Pauline Kelly (‘Pauline’) as her sole executrix and trustee, left $5,000 to her daughter Elaine, $1000 to each of her daughters, Judith and Leonie with the residuary estate to her son John David Kelly (‘John’) and daughter Dorothy Merle Kelly (‘Merle’), in equal shares.

2. [2]
   It is estimated that the net sum available for distribution as at May 2008 will be somewhere in the order of $53,000 to $57,000 (if the legal costs expended by both parties to date, including 3 days of trial, together with the specific bequests which are to be made to Elaine and Judith respectively under Grace’s will are paid out of the estate).

Proper approach in small estate

3. [3]
   The correct approach to be adopted in a case such as this is as stated by Goff LJ in Re Coventry (1979) 3 All ER 815:

“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.”

4. [4]
   Accordingly, there is no hard and fast rule that applications in small estates should automatically be dismissed with costs. Rather, a claim should only be refused where it is clear to the Court that it would be impossible to make an effective order. If there is some estate left after costs and an applicant has a strong case and the beneficiaries are not left in a poorer position, an order might then be made in those circumstances (Ellis v Leeder (1951) 82 CLR 645).

5. [5]
   The parties have attempted to resolve this matter in mediation. That step was unfortunately unsuccessful. As a result, a significant portion of the estate that was available at the time of Grace’s death has now been expended on the legal costs to date.

Background Facts

6. [6]
   Leonie was born on 17^th July 1965. She currently has four (4) siblings, John David Kelly, Dorothy Merle Kelly, Elaine Patricia Kelly and Judith Crosland. Her other sibling Phyllis Yvonne Cooper (‘Phyllis’) unfortunately passed away in 1998 after a long illness. John, Merle, Elaine, Judith and Phyllis were the biological children of the late Frank George Kelly (‘Kel’) and Grace Kelly. Leonie, on the other hand, was formally adopted by Frank and Grace on the 23^rd February 1968 (Exhibit 1).

7. [7]
   Leonie married Andrew Messenger (‘Andrew’) in September 1985 however the parties separated about the middle of 1997. That marriage was formally dissolved in 1999. Leonie and Andrew raised three (3) children together during the course of their marriage, Phillip (born 28^th December 1984), Renee (born 22^nd February 1991) and Gary (born 16^th August 1993). Leonie’s eldest child Phillip (23 years old) is now independent and resides in Townsville. He was however dependent upon Leonie, in part, until the point that he left home permanently at approximately 18 years of age. Renee (17 years old) currently resides with Leonie, having returned home to live with her mother again in July 2007. More recently however, Renee has begun to spend a significant amount of her time residing over at her boyfriend’s home. Renee had initially left home in January 2005 in order to reside with her father in Townsville. Gary (14 years old), on the other hand, has always remained at home with his mother, Leonie. Gary has always had special needs due to his dyslexia particularly as it relates to his schooling. He wears a special type of prescription glasses to assist him with his reading, and has had to receive private tutoring in the past. Gary however has also been a gifted athlete in soccer since a tender age and has been chosen many times to play representative soccer over the years.

8. [8]
   During a time when Andrew and Leonie were married, they had been paying off a mortgage on the matrimonial home as well as raising their three (3) children. That home was eventually sold however leaving very little equity. Leonie currently rents a home in Gladstone from the Queensland Housing Commission. She and the children had returned to Gladstone to reside permanently in January 1998 having separated from Andrew in mid 1997. The rent she pays on her current home is determined by the level of Leonie’s earnings. Leonie’s income (from 1999 onwards) has generally been sourced over the years from either the monies she makes from paid or cash employment, any Centrelink and/or Child Support Payments which she receives.

9. [9]
   Leonie’s siblings John and Elaine also live in Gladstone. Merle and Judith, on the other hand, presently reside in Brisbane. John is married to Pauline and they currently live in their own home at O'Malley Street Gladstone. That home is still subject to a mortgage. Merle is single and currently resides in Hawthorne Brisbane. Her home is unencumbered. At the time of her death, Grace was residing at Hibiscus Gardens, an aged care facility at Gladstone. She had been a permanent resident there since October 2003. Prior to that, Grace had lived in a Unit in Ann Street, Gladstone for approximately 10 years after having left the family home she had shared with her husband Kel at Off Street, Gladstone, with a short period in between each of those moves at which time Grace resided elsewhere as a temporary measure.

10. [10]
    Over the course of her lifetime, Grace made several last will and testaments, the first on 12^th November 1975,  the next on the 24^th July 1995 and the last on the 8^th February 2000. Grace passed away on 28^th June 2004 at age 86.

Legal Principles to be applied

11. [11]
    Section 41(1) which is found within Pt 4 of the Succession Act 1981 provides:

“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 dependent, 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.”

12. [12]
    Section 40 provides:

“In this part –

‘child’ means, in relation to a deceased person, any child, stepchild or adopted child of that person.”

13. [13]
    Accordingly, Leonie is an eligible applicant for family provision.

14. [14]
    As observed by His Honour Justice Mackenzie in Powell v Monteath [2006] QSC 024, the question which is raised by s 41 of the Act is whether adequate provision was not made from the estate for the proper maintenance and support of the applicant in this case, Leonie. Singer v Berghouse (1994) 181 CLR 201 confirmed that there is a two-stage process involved in deciding whether the discretion given by s 41, to award provision out of the estate to be made for an applicant, should be exercised.

15. [15]
    The determination of the first stage involves a consideration of whether or not Leonie has been left without adequate provision for her maintenance and support. If that question is answered in the affirmative then the second step is what provision, if any, should be made from the estate.

16. [16]
    The approach which is to be adopted when approaching the first stage is set out in the majority judgment in Singer at 209-210:

“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.”

17. [17]
    That approach remains good law after being considered by the High Court in Vigolo v Bostin (2005) 79 ALJR 731 at paras [22] and [75].

The deceased’s reasons for testamentary dispositions

18. [18]
    This point was relied upon by the Respondent at hearing in support of its submission that it should be accepted that Grace had acted as a just and wise testatrix when she only left Leonie a modest bequest ($1000) under her will.

19. [19]
    Contained in Grace’s last will dated 8^th February 2000, were the following words (as they related to Leonie only):

“I MAKE these provisions in this my Will to my respective children for what I consider to be good and appropriate reasons.

In Leonie’s case I disapprove of her wasteful spending habits. She can not keep money and I feel that whatever I give her will quickly be wasted. She also has borrowed money from me but has never attempted to repay”.

20. [20]
    Counsel on behalf of the respondent submitted that the statements made by the testatrix to that effect should be received as evidence of the truth of the assertion (s.92 Evidence Act 1977), with weight to be determined in accordance with s.102 thereof. That submission was supported by reference to certain case authority, Powell v Monteath [2006] QSC 024 at para [2] and Manly v The Public Trustee of Queensland [2007] QSC 388 at para [36] and to Hughes v National Trustees Executor & Agency Co of Australasia Ltd (1979) 143 CLR 134 at page 153.

21. [21]
    I think that submission is correct even though I acknowledge that the learned authors of Family Provision in Australia, 3^rd ed at page 208-9 point out that it is in only some of the States and Territories of Australia which have specifically legislated for the admissibility of evidence relating to a deceased’s reasons for testamentary dispositions (see ACT Family Provision Act s.22; NSW Family Provision Act 1982 Act s.32, NT Family Provision Act s 22), whereas in Queensland, there is still only the general provision for the admission of certain statements of a deceased person (see s.92 Evidence Act 1977) which is of limited utility in that context. Even so, s.92 Evidence Act 1977 does allow for such admissibility.

22. [22]
    When estimating the weight (if any) to be attached to such statements however, reference must be made to s.102 thereof. Having regard to the bare assertions made without qualification by Grace in her last will regarding Leonie, the fact that Grace cannot now be asked to explain what she meant and the lack of evidence before the court regarding the context of any instructions that were given by Grace at the time she made her will that might have assisted in understanding Grace’s reasons, it follows that careful regard must, in those circumstances, be given to the evidence available at hearing in order to determine, if possible, whether Grace’s view of Leonie, as stated in her last will, is borne out.

Leonie’s ‘wasteful spending habits and her inability to keep money’

23. [23]
    At the time Grace signed the relevant will (dated 8^th February 2000), Leonie had formally separated from her husband, was living back in Gladstone with her three young (3) children in rented accommodation and was in receipt of some paid income from the Department of Education for the year ended 30^th June 2000. She was also in receipt of a sole parent pension (amount unknown), that entitlement however fluctuating depending on her earnings. It is unclear whether she was also receiving any child support payments from her husband Andrew at that time, however the evidence available supports the conclusion that Leonie has received child support payments from Andrew since they had separated, but that such payments have been somewhat sporadic in that Andrew had fallen in arrears on more than one occasion.

24. [24]
    Other evidence available shows that during 1995, Leonie and Andrew enjoyed a relatively good income (as a result of the fruits of Andrew’s labour), but that little was gained during that period. Indeed, the evidence shows that there was very little left, in a monetary sense, for distribution to either of the parties after the matrimonial home was sold once their marriage came to an end.

25. [25]
    During the years 1999, 2001, 2002 and 2003 respectively Leonie did not work and was in receipt of Centrelink assistance (amount unknown). She was however in receipt of child support assistance from her husband Andrew (amount unknown) during that period. Since May 2004 however, Leonie has worked in paid employment. She has received child support assistance from Andrew (amount unknown) and has also received Centrelink assistance during the subsequent years. Leonie gave evidence that she had received some cash income during the year 2004 as a result of housecleaning and ironing which she had undertaken. I accept her evidence when she stated that the cash income received in that regard was only minimal.

26. [26]
    The financial documentary evidence available in this case and the lack of relevant financial records before this court has made the assessment of the true financial position of applicant in this case throughout the various years, indeed a difficult one, but not an impossible one. The evidence that is available however supports a conclusion that Leonie’s income from at least 1999 up until she commenced working in 2004, was, at best, limited. Leonie gave evidence that her expenses during the financial year ending 2004 were ‘roughly the same’ as that to which she deposed to in her affidavit sworn 4^th October 2005 (paragraph 46 - $370) stating however that she did have additional expense associated with her son Gary’s soccer activities during that period. (p 31, 33 Transcript). Taking into account the income which the applicant was earning or receiving and the expenses that she was paying (which seemed reasonable) during the years just prior to Grace’s death, it is difficult to accept the submission which has been made, that Leonie’s financial position throughout that period demonstrates an ‘inability to keep money’ or that she had ‘wasteful spending habits’.

27. [27]
    Nor can it be said that Leonie’s financial position even after 2004 is such as to satisfy me that she had wasteful spending habits or an inability to keep money. For example, during the financial years 2004 and 2005, the relevant Notices of Assessment show an average net weekly income of $262 and $336 respectively. In addition to that income, Leonie also received Centrelink assistance of approximately $220 and $187 per week giving a total net weekly income of $482, $523 respectively. In 2006, she received from paid employment, an average net weekly income of $463. In addition, she also received an average of $120 per week from Centrelink assistance giving a total income for that year of $583. In 2007, she received $511 net per week from paid employment. She was also in receipt of assistance from Centrelink and at least as at 1^st February 2007, she was in receipt of approximately $162 per week (see paragraph 3 of her Affidavit sworn 1^st February 2007) giving an average total net income of approximately $673 per week (if one were to accept that she in fact receive that level of Centrelink assistance during the whole of that financial year, in light of her evidence, which I accept, that such payments are dependent upon the level of hours that she worked at any given time).

28. [28]
    What has been revealed from my analysis of the applicant’s financial position even since 2004 is that the income which Leonie has received from all sources (excluding any child support she may have received which cannot be quantified due to the lack of documentary evidence before the court), during that year up to and including the year ending 2007 has not been significant.

29. [29]
    During the course of the hearing, Leonie was cross examined at length about her expenses during the various years. In short, she agreed under cross examination that she had virtually spent every penny she had ever earned or received and had been unable to save any money to any significant degree. She gave evidence however that what savings she had managed to put away on occasion was always spent on other expenses that arose, for example the purchase of a new washing machine etc. She also agreed that even though she was receiving more paid income during each of the years subsequent to 2004, she was still unable to save any of that additional income primarily because of the costs that were arising during that time with her son’s representative soccer commitments and other expenses. She gave evidence of those expenses which could be anywhere up to $1,200 for a week if he was picked to go away plus the expense of a kit (p 33 Transcript). She gave evidence that Gary was going away a lot with his soccer during that time. She also estimated that she had spent approximately $8000 over the last 3 years on Gary with respect to his selection for Central Queensland and goalkeeping. Leonie also deposed in her affidavit 4^th October 2005, the various costs associated with her son’s selections, club membership and Goalkeeping. I have no reason to reject her evidence on this issue.

30. [30]
    She was also cross examined regarding the expenses deposed to in her affidavit sworn 14^th October 2005 paragraph 46, in comparison to those deposed to in her affidavit sworn 1^st February 2007 paragraph 4. She agreed under cross examination that she had again spent everything she was earning or received during those years and had not managed to save. She gave evidence that her expenses had increased since October 2005 but that was primarily due to Gary’s soccer commitments, that her electricity, rent and car payment had also increased She stated that Gary’s school expenses had also increased. (p 38, 39 transcript) She was unable to give a precise figure of the actual increase overall during the period in question, when pressed under cross examination.

31. [31]
    She was also cross examined specifically about her expenses listed at paragraph 4 of her affidavit sworn 1^st February 2007.  Leonie gave evidence that her current expenses were much the same as those listed in her affidavit sworn 1^st February 2007 with the qualification that some of those expenses listed no longer applied, for example, the telephone/internet/mobile expense which she had since let go because she couldn’t afford it. She admitted that the Chrisco expense was a little less. She gave evidence that her loan expense had increased since 1^st February 2007 as she now had two loans to pay off rather than the one. She admitted that the amount of $50 per week for Contents Insurance was inaccurate and that figure was less than actually stated. She stated that Gary’s soccer activities expenses had increased. She confirmed under cross examination that most of the other expenses listed as at 1^st February 2007 were ‘much the same’.

32. [32]
    I had the opportunity to observe the applicant while she gave her evidence and during the course of cross examination. She struck me as a simple person but truthful. While she was sometimes vague in her ability to provide to the court the precise nature of her earnings, the child support she may have received during any given year or the precise detail of her actual expenses over the relevant years, particularly when compared to another year, she impressed me as a witness who was prepared to do her best and willing to concede she did not simply know when asked for clarification and may need to look at documentation (not before the court) in order to assist. For example, she accepted that she had not included child support payments received under ‘Income’ in her affidavit 14^th October 2005. She was also happy to concede that she had not declared the cash income she had received during 2004 to the Taxation Office and admitted that she had clearly made a mistake regarding the amount she claimed regarding her Contents Insurance in her affidavit 1^st February 2007.

33. [33]
    While it would have been certainly been more helpful to the court and indeed to the applicant herself had her more recent financial position been presented in better form, that does not mean that I should reject the applicant’s evidence on this issue.

34. [34]
    For example, I have no reason to reject her evidence regarding the ongoing expenses which she says she has had regarding her son Gary over the years associated with his soccer (which, in any event, was not challenged). Nor do I have any reason to doubt whatsoever the majority of the other expenses which she has listed. I accept her evidence when she says that she spends every penny she may have available on  her family, a fact demonstrated by her continuing financial support she gives her son Gary, who has demonstrated a natural ability for soccer since Under 7. As such, I am not satisfied that simply because she has been unable to save any real money over the years, generally spends every penny she earns or receives on the family, particularly in circumstances where she has been the sole provider for the family since separation (aside from the receipt of child support from Andrew), that it follows that I should find that she has had ‘wasteful spending habits’ or an ‘inability to keep money’.

35. [35]
    There was also other evidence available on this issue that required consideration. John and Pauline Kelly both gave evidence (the former in his affidavit 8^th November 2006 and the latter in her oral evidence before the court) that Grace had told them that she was always telling Leonie that she should save her money and not waste it on junk for instant gratification. That evidence may, in my view, be received in accordance with the principles set out in Hughes v National Trustees Executor & Agency Co of Australasia Ltd (1979) 143 CLR 134 as it may have some relevance regarding the reasons behind why Grace only left Leonie a modest bequest in her last will. That evidence however is not evidence of the facts it asserts. During the course of the hearing, Pauline gave evidence that on one occasion she was present when Grace told Leonie that she shouldn’t waste money after Leonie had arrived home with 3 shopping bags of cakes and pastries having been given money by Grace to buy dinner for the family. Under cross examination, Leonie had no recall of that particular incident happening but gave evidence that her mother had sometimes asked her what she was spending her money on and she would have to explain to Grace what her expenses were. She did not recall Grace ever being disapproving or that they had disagreements over money however.

36. [36]
    With respect to this incident, I accept Pauline’s recollection of it. I have no reason to reject Pauline’s account. Grace’s comments and even the incident itself however does not, in my mind, automatically support a conclusion that Leonie was therefore a person prone to wasteful spending habits. It may be equally consistent with Grace’s own perception of what she may well have considered to be money that could have been better spent on that occasion, particularly in light of fact that she had just given money to Leonie to buy the family dinner.

37. [37]
    On balance, I am not satisfied that the evidence available for consideration on this issue supports a finding that Leonie was a person prone to wasteful spending habits or a person with an inability to keep money. The reasons which Grace has included in her will with reference to her daughter may well be more readily understood particularly when viewed against Grace’s own frugal lifestyle which in turn, may well have resulted in a lack of true appreciation as to the level of expense associated with raising children in present times, especially a child with (expensive) sporting pursuits such as in the case of Leonie’s own son Gary.

‘Money borrowed which Leonie has never attempted to repay’.

38. [38]
    During the course of giving evidence, Leonie admitted that she had borrowed sums of money from Grace on occasion, usually in the order of $20 or so (to buy bread and milk) to get her through to the next pay day which she always paid back. She also gave evidence that she did borrow $2000 from Grace in 1999, around the time her mother was ill, to assist with moving costs. She gave evidence that she did start to repay that money back but that Grace had told her not to worry about it after she had made some repayments on it. (p 44, 45 Transcript). I had no reason to reject the applicant’s account regarding this issue in light of the meagre financial position she was in at that time.

39. [39]
    There was however other evidence available for consideration on this issue. This included evidence from John, Pauline and Merle Kelly to the effect that Grace had told them that she was sick of certain family members badgering her for money all the time. Merle recalled that her mother had said that it wasn’t just Leonie badgering her for money but others as well. Pauline recalled Grace advising her that Leonie had also been badgering her for money and John deposed in his affidavit sworn 8^th November 2006 that his mother had also complained to him of being badgered by the others (presumably Elaine, Judith and Leonie) for money. Again, this evidence may be received in accordance with the principles enunciated in Hughes. This evidence, in my mind, however merely confirms what had already been conceded by Leonie during her own evidence, that she had been asking her mother for monetary assistance when the need arose. Of some significance, is the fact that the bulk of this ‘complaint’ deposed to by John Kelly (at paragraph 5), also recalled by Pauline and deposed to in her affidavit 8^th November 2005 (at paragraph 11), regarding any ‘badgering’ related more to John’s sister Elaine and not to Leonie.

40. [40]
    There was further evidence on this issue. Pauline gave evidence that she recalled Grace telling her that Leonie had taken money out of her passbook without her knowledge when she was ill. This evidence is of limited value on the issue regarding the reasons behind why Grace only made a modest allowance for Leonie in her last will as the evidence is suggestive of dishonesty, a fact inconsistent with Grace’s own words regarding Leonie in her will, in that she says Leonie had only ‘borrowed’ money from her which she had never attempted to repay rather than had ‘stolen’ from her. As such, I place no weight on this evidence or the evidence given by John on this issue.

41. [41]
    Having regard to the paucity of evidence, I am not satisfied that Leonie was a person who borrowed money from Grace but never attempted to repay her. I am satisfied however that the evidence available shows that Leonie had been asking her mother for small amounts of money on occasion, had received money from Grace as a result, that she had repaid the small amounts she had been lent.

42. [42]
    The respondent also submitted that the will which Grace had previously made dated the 24^th July 1995 is of some relevance on this issue. The respondent argues that because Grace had only left Leonie the same modest bequest of $1000 at that time that it demonstrates that she was a wise and just testator when she subsequently left only the same allowance under the last will dated 8^th February 2000.

43. [43]
    That submission however overlooks the fact that the terms of the former will is not the same terms in respect of all beneficiaries (for example, Elaine was to receive only $1000 yet is now to receive $5000), the fact that Grace’s estate was of much smaller value at the time she made the earlier will, having only inherited a significant sum of money from her brother upon his death in September 1995 and finally, that Leonie’s personal and financial situation was completely different as at 24^th July 1995, 8^th February 2000 and indeed as at 28^th June 2004 (the date of Grace’s death). 

44. [44]
    Having determined then that there is or has not been character or conduct operating to negative the moral obligation that would otherwise have been lain upon Grace to provide proper or adequate support for her daughter, it is not necessary for me to consider the question of ‘spendthrift applicants’.

45. [45]
    I now shall consider the two stage process which is to be adopted in applications such as these.

The two-stage process - Stage 1

General principles

46. [46]
    In the case of an adult divorced daughter, there is no need to demonstrate inordinately necessitous circumstances. It is well settled that this general principle applies to not only adult daughters but also to adult sons. However, it is also true that the view remains that an adult son or daughter may be required to show some special need or special claim before the court will consider making further support for him or her, because usually, if the son or daughter is mature, able-bodied and capable of supporting himself or herself, he or she may in those circumstances be in no need of maintenance or support (Hughes at 147).

47. [47]
    One example where a special need might be found in the case of an adult daughter is the need for the support and education of a child. Goodman v Windeyer (1980) 144 CLR 490 at 498.

48. [48]
    However, as recognised in Hughes, there are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of an adult son (as it was in that case) is dependent upon on all the circumstances, that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonable have been foreseen by a testator who knew the facts. That principle also applies to adult daughters.

Relevant facts and circumstances

1. Competing claims of potential beneficiaries

49. [49]
    As recognised in Singer, the competing claims of any other beneficiaries must be considered. There was initially two (2) other competing applications to the estate. However, Elaine or Judith chose not to proceed with their respective applications for further and better provision. The other ‘claims’ upon the testator’s bounty are, at present, those of the residuary beneficiaries, John and Merle.

2. The relationship between the deceased and the applicant (Leonie)

50. [50]
    The evidence available which I accept supports a conclusion that the deceased and applicant did have a loving relationship. Leonie deposed in her affidavit 4^th October 2005 that she had enjoyed a close relationship with her mother over the years. Leonie stated that she had provided assistance to her mother by helping her with the washing and ironing, had provided a home to her mother (as a temporary measure) prior to Grace moving into Hibiscus Gardens and visited her regularly. She also stated that she had enjoyed many outings with her mother especially when Gary was playing soccer. Other evidence provided for the court’s consideration confirms this relationship. John gave evidence that he believed his mother and Leonie had a fairly good relationship, that she had helped out their mother particularly when she had gotten older and that Grace had lived with Leonie prior to Hibiscus Gardens becoming her permanent residency. (p 60 Transcript). Additionally, the eulogy prepared for Grace’s funeral (‘JDK 5’ John Kelly affidavit sworn 8^th November 2005) also confirms Grace’s relationship with her respective children and grandchildren.

3. The relationship between the deceased and other residuary beneficiaries (John and Merle)

51. [51]
    The evidence available which I accept supports a conclusion that Grace equally had a loving relationship with both John and Merle. John deposed to in his affidavit sworn 8^th November 2005 that virtually since the day that he and Pauline married (30 years ago), Grace would regularly come and visit and was involved in all the family activities including birthdays and the like. John also gave evidence that towards the end of Grace’s life, all of the family helped Grace by providing domestic help. The other evidence which I accept is that both John (and his wife Pauline) assisted Grace over the years, for example by helping with her banking and general finances particularly during her twilight years.

52. [52]
    I also accept that Grace had a loving relationship with her daughter Merle even though Merle was residing in Brisbane. This is evident from the fact that Merle also visited her mother at least five (5) times a year and even more when her mother was feeling poorly. (p 104 Transcript).

4. The relationship between the deceased and other beneficiaries (Elaine and Judith)

53. [53]
    It is not necessary, for the purpose of determining this application, for me to determine the level or degree of the relationship as between Grace and her other daughters Elaine and Judith.

5. Leonie’s financial position as at the time of Grace’s death

54. [54]
    At the time of Grace’s death (28^th June 2004), Leonie was living alone in Gladstone in rental accommodation with her two youngest (2) children, Renee (13 yrs) and Gary (10 yrs). She was working in paid employment, having commenced at the Tooloola Bakery and Café in May 2004. Prior to May 2004, she had been in receipt of Centrelink assistance. She stated that she had no significant assets as there had been very little left to distribute once the matrimonial home was sold after her marriage came to an end. She stated she received no property settlement as there was nothing to receive. She gave evidence that she had received some child support assistance from Andrew but that it was sporadic. She also said that she had undertaken ironing and housecleaning during early 2004 in order to supplement her income. Her total net income (excluding any child support payment and cash income received) for the year ending 2004 was on average $482 per week (received from paid employment and Centrelink). She stated under cross examination that her expenses at that time would have been around $370 per week but that there was the additional expense of Gary’s soccer activities arising at that time, an expense which she solely paid for, so there was little left over to put away as savings. She gave evidence that her motor vehicle (1994 Hyundai) had become unroadworthy in about Easter 2004 and she was required to purchase another car in July 2004 by taking out a loan with Fast Access Finance. I accept the applicant’s evidence on these matters.

55. [55]
    There was other evidence available for consideration. Some of Leonie’s siblings gave evidence which in my view support a conclusion that Leonie was of meagre means at or just prior to her mother’s death. John deposed that he and Pauline had offered Leonie ironing in early 2004 as they had wanted to help her out financially. They had also offered her (second hand) clothing and sporting items to assist her and the children. Merle gave evidence that at times when she visited Leonie during 2003, when their mother was doing poorly, there was insufficient food in the house and as a consequence she purchased food for the whole family. She gave evidence that on one such occasion, the family had eaten their food with such gusto that she been left with the impression that the whole family had been ‘starving’. As a consequence, any ‘monetary loans’ she had given to Leonie in the past she had waived.

6. John and Merle’s financial position as at the time of  Grace’s death

56. [56]
    The financial position of John and Merle was helpfully summarised in a Schedule tendered for the court’s assistance (Exhibit 7).

57. [57]
    That schedule demonstrates that both John and Merle were, at the time of their mother’s death, in a significantly better financial position than Leonie. Their respective evidence to the court in respect of that schedule also supports such a conclusion.

Stage 1 conclusion:

58. [58]
    I am satisfied that on the whole of the evidence available, that Grace did not act as a just and wise testator when she chose to leave Leonie only $1000 under her last will. Nor do I accept the submission which was made on behalf of the respondent that the applicant has failed to demonstrate an entitlement to further and better provision out of the deceased’s estate.

59. [59]
    In support of that argument, the respondent submitted that Leonie was a mature able-bodied woman, who had demonstrated over the years prior to her mother’s death that she had been more than capable of supporting herself and her children, and as such, had failed to prove some special need or special claim: Hughes.

60. [60]
    I am unable to accept that submission. While the factors referred to are relevant in an application such as this, they are not, as recognised by Justice White in Gardner (OS 475 of 1981 at page 16) and recognised in Hughes, to be applied rigidly or indeed exclusively. They are merely some of the factors which the court must take into account when determining whether adequate provision has been made for an adult daughter taking into account all the circumstances which existed at the time of the testator’s death.

61. [61]
    Having regard to the whole of the evidence available for consideration, I am satisfied that the applicant has demonstrated a strong enough case to persuade me that further provision ought to have been made by Grace in respect of her daughter Leonie. I make this finding even in the event that the applicant’s daughter Renee had already left Gladstone to reside with her father in Townsville earlier than as stated in the applicant’s own affidavit, namely January 2005 (paragraph 27 4^th October 2005, which is ambiguous in its terms).

62. [62]
    Having determined Stage 1 in the applicant’s favour, I shall now move to the second stage in the process.

The two stage process – Stage 2

63. [63]
    With respect to the second stage, the majority judgment in Singer says, at 210:

“The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.”

64. [64]
    As observed by Justice McKenzie in Powell v Monteath at paragraph [2]:

“[I]t is said that, in determining the first step, although a value judgment must be made, the question whether adequate provision has not been made for proper maintenance and support of the applicant is a question of objective fact to be determined by the trial judge. By contrast, the decision at the second stage involves the exercise of a discretion in the accepted sense. The fact that the court has a discretion means that it may refuse to make an order, even though the jurisdictional question has been answered in the applicant’s favour.”

65. [65]
    Generally speaking, the primary question, whether the deceased failed to make adequate provision for an eligible applicant is to be determined upon the circumstances which existed at the date of the deceased death, which includes any circumstances that could reasonably be foreseen at that time. However, when making any order, the court takes into account the circumstances existing at the date when the order is made.

Leonie’s financial position as at the date of hearing

66. [66]
    Leonie’s financial earnings and expenses prior to 2008 have already been discussed in some significant detail already within this judgment. Leonie’s financial position as at the date of hearing however may be summarised as follows. She is currently working as a casual probationary with Blue Care since April 2008 having finished working full time with Craig’s Bakery in March of this year. She stated that the reason she had left Craig’s Bakery was because she was on permanent night shift and she wanted to go back to day shift so that she was home for the children (Renee and Gary). She also stated that the working conditions weren’t acceptable anymore (P 24 Transcript). Her last gross fortnightly pay packet from her current employer, Blue Care, was $479. She anticipates receiving about $450 net for the fortnight, maybe a little less. She is paid $14.92 per each hour she works. She may be placed on as a permanent after probation but was uncertain what that meant in real terms regarding the amount of hours she might then be offered. She is currently in receipt of child support assistance from Andrew in the order of $1000 per month for her two (2) children Renee (17 yrs) and Gary (14 yrs). She is also in receipt of Centrelink assistance (New Start allowance) which is calculated depending upon the amount of income she earns. The amount she most recently received just prior to hearing was approximately $167 per week, based on the last fortnightly hours she had worked. Her current income therefore, from all sources per week, is $642.

67. [67]
    It would be trite to say that a significant part of that net weekly income is currently being absorbed by her expenses even notwithstanding that the applicant gave evidence that several of the items listed at paragraph 4 of her affidavit sworn 1^st February 2007, have either reduced or no longer exist. For example, the applicant gave evidence that she longer pays the telephone /internet/mobile telephone expense, her ‘Chrisco’ and rent expenses are now less, as indeed was her insurance (contents) expense. The applicant also gave evidence however that her ‘loan’ expense had increased and that the other expenses listed were ‘much the same’. (p 41, 42 Transcript). It is also of some significance that at the time the applicant swore that affidavit, Renee was not living with the applicant (having only returned home to live in July 2007) and as such, no amount has been included at all for expenses, which I accept, currently relate to Renee (p 65, 66 Transcript).

68. [68]
    The applicant currently resides in rental accommodation, the rent paid dependent upon the amount of any income she earns. She has a small financial resource of superannuation in the order of $6854 and she now has a 1993 Toyota Camry sedan which she is currently paying off. Her two (2) loans combined have an outstanding amount owing of $7800. Her current expenses are much the same as they were in February 2007 (paragraph 4 of her affidavit sworn 1^st February 2007) with some differences (already referred to in the text of this judgment).

69. [69]
    In a nutshell, the applicant is currently living much the same way as she has been since her marriage came to an end. There is little left of her income after expenses are paid. She has few assets of any real value and has only a small financial resource namely her superannuation. She currently has two of her (2) children residing with her, both of whom are dependent upon her. It must be said however that the evidence available supports a conclusion that Renee is not currently wholly dependant upon Leonie as she is presently spending a significant amount of her time living between her boyfriend’s home and Leonie’s. I accept that Renee’s boyfriend’s father pays for Renee’s day to day living expenses such as food when she stays over and that Renee spends a significant period of her time over at that home. However, the evidence available which I accept also supports a conclusion that Leonie still assists Renee with her phone bills, TAFE College expenses and pays for her day to day living expenses when she does return home. (p 64, 65 and 66 Transcript). There was also evidence that Leonie had been supporting Renee’s boyfriend’s brother Matthew. Matthew (a Grade 11 student) had been living at Leonie’s house since Christmas 2007 but had just prior to the date of hearing, left to return home to his father’s home. That evidence, in my mind, demonstrates that Leonie had been providing assistance to a member of another family but at a time when her own daughter was spending a significant period of her own time out at her boyfriend’s home.

70. [70]
    I also find that the explanation that the applicant gave during her evidence (p 24 Transcript) regarding wanting to return to day shift work in order to be home for her children was not an entirely convincing one. On her own evidence, Renee (17 years old) had been living a significant period of her time out at her boyfriend’s home (for at least a couple of months prior to the date of hearing) and her son Gary (14 years old) attends school during the day. Renee’s boyfriend’s brother Matthew was also living there. It cannot be said that Renee, Gary or indeed Matthew are young children requiring parental supervision to a degree that one might expect for children much younger. The applicant deposes (see her affidavit sworn 4^th October 2005 at paragraphs 43 and 44) that she was able to provide for Gary’s needs, even when he was much younger, even when she was working night shifts. Nor did the applicant suggest that she had suffered any significant injuries or had any health reasons which prevented her from working per se. As such, I think it is a fair inference to draw that like most workers, the applicant undoubtedly simply preferred to work during the day rather than at night, which is entirely understandable. As such, I find that this was more likely than not was the primary reason behind her giving up her full time employment with Craig’s Bakery in March 2008.

71. [71]
    The applicant currently enjoys good health.

              The residuary beneficiaries’ respective financial positions as at the date of hearing.

72. [72]
    In distinct comparison to Leonie, it would be trite to say that both John and Merle are in a significantly better financial position than her at present. Their respective evidence in respect of Exhibit 7 and their evidence generally at hearing also supports such a conclusion. John and Merle both currently enjoy good health.

Stage 2  Conclusion

73. [73]
    I am satisfied, on balance, that an order should be made.

74. [74]
    In making an order, this court must take into account the circumstances existing at the date I make the order (White v Barron (1980) 144 CLR 431). What is an appropriate amount is not a case where mathematical certainty can be applied.

75. [75]
    Nor does this court’s power extend to simply rewriting the will. If possible, the court should respect a testator’s wishes particularly regarding any beneficiaries named under the will.

76. [76]
    Although, I was provided helpfully with decisions which demonstrate what has been done in other cases, each of those were cases can only provide an insight into how that case was determined. As observed by both the Chief Justice and Justice White respectively, in Goold v Field [2005] QSC 310 at paragraph [35] and Gardner at page 18, such cases may only provide general guidance in determining what may be an appropriate amount to be ordered in a particular case, and a court is therefore not bound to fall within a ‘range’ of a particular award if the case at hand requires otherwise.

77. [77]
    There is, in my mind, an obvious need to provide the applicant with some moneys to pay off her current debts. There is also an obvious need to provide her with some additional money in order that she may have some savings available should emergency expenses arise (car expenses, cost of further whitegoods and the like) and to assist her with having a ‘buffer’ as it were with respect to her general ongoing expenses. Taking into account the vastly disproportionate ‘competing claims’ of the respective residuary beneficiaries to that of the applicant with respect to their financial positions, I consider that fifty percent (50%) of any sum now available for distribution (after taking into account the $6,000 to be distributed to Elaine and Judith and any costs that the court deems appropriate after receiving written submissions from the parties) ought be paid to the applicant, a sum not unreasonable in all the circumstances.

78. [78]
    In making that determination, I have taken into account the fact that Leonie is still a young woman who currently enjoys good health, is capable of obtaining full time paid employment and is currently in receipt of child support for her two (2) children Renee (17 years) and Gary (14 years) who also enjoy good health. I am also conscious of the need to recognise Grace’s wish that it was her desire that her son John and daughter Merle, who also had an equally good relationship with their mother to that of the applicant, should benefit under her will.

Costs

79. [79]
    In order that a final monetary figure may be determined regarding what sum is to be paid to the applicant as further provision for her proper maintenance and support from the estate of Grace Kelly, I invite the parties to provide, by written submission within 7 days from the date of publication of this judgment, any arguments they may have regarding costs.