Kilpatrick v The Public Trustee of Queensland
[2012] QDC 1
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- Unreported Judgment
- Kilpatrick v The Public Trustee of Queensland[2012] QDC 1
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Kilpatrick v The Public Trustee of Queensland[2012] QDC 1
Kilpatrick v The Public Trustee of Queensland[2012] QDC 1
DISTRICT COURT OF QUEENSLAND
CITATION: | Kilpatrick v The Public Trustee of Queensland [2012] QDC 1 |
PARTIES: | GAYNA ANN KILPATRICK (Applicant) v THE PUBLIC TRUSTEE OF QUEENSLAND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL JAMES STUMER (DECEASED) (Respondent) |
FILE NO: | 955/11 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 23 December 2011 (orders) 12 January 2012 (reasons) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 December 2011 |
JUDGE: | Long SC, DCJ |
ORDER: |
“I GIVE –6.1to my wife, GAYNA ANN KILPATRICK, a gift of $140,000;6.2as to the rest and residue thereof, to my son AARON JAMES STUMER and my daughter KATIE ANN GOWELL in equal shares as tenants in common.”
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CATCHWORDS: | FAMILY PROVISION APPLICATION — need for court order to finalise proceedings – significance of agreement between the parties as to orders. |
LEGISLATION | Succession Act 1981, s 41(1), (1A). |
CASES: | Affoo v Public Trustee of Queensland [2011] QSC 309. Bartlett v Coomber [2008] NSWCA 100. Watts v Public Trustee (as executor of the estate of Neta May Bruigom) [2010] QSC 410. |
COUNSEL: | C.J. Fitzpatrick on behalf of the applicant. A.J. Keys on behalf of the respondent. C. Harding on behalf of the beneficiaries. |
SOLICITORS: | McMillan Legal on behalf of the applicant. Official Solicitor to the Public Trustee on behalf of the respondent. Mitchells Lawyers on behalf of the beneficiaries. |
- [1]On 23 December 2011, this matter came before me in the Applications list in Brisbane and I then made the following orders:
- Further and better provision be made for the maintenance and support of the applicant out of the estate of Michael James Stumer by reading and construing the last will of the testator (being Will dated 28 September 1999) as if Clause 6 of the Will provided as follows:
“I GIVE –
6.1to my wife, GAYNA ANN KILPATRICK, a gift of $140,000;
6.2as to the rest and residue thereof, to my son AARON JAMES STUMER and my daughter KATIE ANN GOWELL in equal shares as tenants in common.”
- If paid within 28 days of the date of this order, the gift in clause 6.1 of the Will to the applicant will be free of interest.
- The Public Trustee of Queensland reimburse to the applicant, as an estate expense, the registration costs of the Nissan Motor Vehicle and Box Trailer (supported by invoices) and the sum of $470.00 for a contribution to the wake and order of service of the deceased.
- Upon final administration, the Stesco Boat and Trailer shall be released to Aaron Stumer in part satisfaction of his share of the estate.
- The applicant shall make available for collection by Aaron Stumer and Katie Gowell the items of personalty contained in Annexure “A” to the written terms of settlement which the parties signed on 8 December 2011.
- The costs of the respondent, the Public Trustee of Queensland, of and incidental to this application be assessed on an indemnity basis and paid out of the estate.
- The applicant’s costs fixed in the sum of $30,000.00 inclusive of GST be paid out of the estate.
- The costs of the next of kin, Aaron Stumer and Katie Gowell fixed in the sum of $30,000.00 inclusive of GST be paid out of the estate.
- There be no order for costs of this application.
- [2]On 25 March 2011, the applicant filed an originating application seeking provision, out of the estate of the deceased, pursuant to s 41 of the Succession Act 1981.
- [3]Prior to that and on 10 November 2010 an order was made for the Public Trustee to administer the estate of the deceased in accordance with the deceased’s Will, dated 29 September 1999. Pursuant to that Will, the deceased gave the whole of his estate to his two surviving children: Aaron James Stumer and Katie Ann Gowell.
- [4]In that Will, no provision is made for the applicant, who had been the deceased’s de facto partner from about March 2002 and until his death, on 26 June 2010. In that regard the applicant claimed to be a spouse of the deceased within the meaning of s 5AA of the Succession Act 1981.
- [5]The abovementioned orders were more particularly made upon the further application filed in this matter on 19 December 2011 and which in effect sought the implementation of a mediated settlement between the parties in respect of this matter.[1]
- [6]That further application was in recognition of the necessity for order of this Court to give effect to the remedy available pursuant to s 41 of the Succession Act 1981.
- [7]I have recently set out the principles which are to be applied to this exercise of the Court’s discretion, with particular regard to the significance of an agreement or compromise by the parties as to an appropriate outcome, in Begulic v The Public Trustee of Queensland [2011] QDC 316 and I will not repeat that recitation here.
- [8]It suffices to note that although there is a discretion to be exercised, once the qualifying requirements are satisfied, the compromise of the parties is a significant factor and generally and in the absence of any concern as to the failure to effect the specific legislative policies or some abuse of process or other offence of public policy, it can be expected that a compromise of the relevant parties will be given effect.[2]
- [9]The application of this approach is particularly apt, where as here, the Public Trustee is involved and the sui juris beneficiaries of the estate under the Will have been active participants in the mediated resolution.
- [10]In support of her application, the applicant deposed to evidence directed towards the requirements of s 41(1) and (1A) of the Succession Act 1981, including as to:-
- (a)Her cohabitation with the deceased as his de facto partner for about eight and a half years prior to his death. She became his fiancée in 2010, but their marriage plans were interrupted by the deceased’s illness.
- (b)During this relationship the applicant contributed financially to the household from her employment and also contributed through the provision of household and domestic services and cared for the deceased through a period of 18 months ill health prior to his death.
- (c)The applicant was born on 28 September 1956 and is therefore aged 55 years and has been employed as a serviced offices manager since June 2004 but that employment is not assured into 2012, due to the financial downturn. She has some moderately severe health problems, including long-standing depression and anxiety, migraines, fibromyalgia and dental problems.
- (d)She has only $1,000 in savings and her only assets of significance are her superannuation entitlements of $52,943.54 and her equity in the residence which had prior to his death, been held as a joint tenancy with the deceased, optimistically estimated at $40,000.[3]
- [11]By way of comparison, each of the beneficiary children are younger (aged respectively 35 and 32 years) and while neither of them have significant assets and each have responsibilities for young children, each have the support of partners and sources of income and the prospect of securing their future over coming years.
- [12]The net value of the estate is estimated to be somewhat in excess of $350,000 and estimated legal costs of the Public Trustee total $21,800.00.
Conclusion
- [13]It is not necessary to discuss this evidence in any further detail, as it is apparent that there was a basis for the application[4] and the position resolved by the parties necessarily implies that there is now sufficient acceptance of or, at least insufficient disputation about these and other relevant circumstances, to allow conclusions that adequate provision has not been made for the proper maintenance and support of the applicant and that some provision be made out of the estate, for her.
- [14]In the circumstances, I was satisfied that the agreed proposal of the parties, as to the provision from the estate for the applicant, was appropriate and I accordingly made the orders set out above, on 23 December 2011.
Footnotes
[1] The orders ultimately being made upon an amended application filed by leave on 23 December 2011 which included adjustment to take account of an unanticipated taxation liability of the estate.
[2] See in particular: Affoo v Public Trustee of Queensland [2011] QSC 309; Bartlett v Coomber [2008] NSWCA 100 and Watts v Public Trustee (as executor of the estate of Neta May Bruigom) [2010] QSC 410.
[3] i.e. estimated value of $270,000 (but now subject to being flood prone) less a mortgage debt of $230,000.
[4] Having regard to the requirements of s 41(1) and (1A) of the Succession Act 1981.