Sorfleet v The Public Trustee of Queensland
[2012] QDC 3
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- Unreported Judgment
- Sorfleet v The Public Trustee of Queensland[2012] QDC 3
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Sorfleet v The Public Trustee of Queensland[2012] QDC 3
Sorfleet v The Public Trustee of Queensland[2012] QDC 3
DISTRICT COURT OF QUEENSLAND
CITATION: | Sorfleet v The Public Trustee of Queensland [2012] QDC 3 |
PARTIES: | PATRICIA ROBYN SORFLEET (Applicant) v THE PUBLIC TRUSTEE OF QUEENSLAND AS EXECUTOR OF THE ESTATE OF JACK ROBERT GARSDEN (DECEASED) (Respondent) |
FILE NO: | 875/11 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 23 December 2011 (orders) 18 January 2012 (reasons) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 December 2011 |
JUDGE: | Long SC, DCJ |
ORDER: |
|
CATCHWORDS: | FAMILY PROVISION APPLICATION – need for court order to finalise proceedings – significance of agreement between the parties as to orders – orders made on the papers. |
LEGISLATION | Succession Act 1981, s 41(1), (1A). Uniform Civil Procedure Rules, Chapter 13, Part 6. |
CASES: | Affoo v Public Trustee of Queensland [2011] QSC 309. Bartlett v Coomber [2008] NSWCA 100. Szlazko v Travini [2004] NSWSC 610. Watts v Public Trustee (as executor of the estate of Neta May Bruigom) [2010] QSC 410. |
SOLICITORS: | Quinn & Scattini Lawyers on behalf of the applicant. Official Solicitor to the Public Trustee on behalf of the respondent. McCullough Robertson Lawyers on behalf of the residuary beneficiary. |
- [1]The parties have sought that the court make orders, on the papers and without any oral hearing. In the circumstances set out below and where there has been compliance with Part 6 of Chapter 13 of the UCPR, I am prepared to do so.
- [2]On 23 December 2011 and when this matter came before me in the Applications list in Brisbane, I then made the following orders:
- Pursuant to section 41 of the Succession Act 1981 (Qld), further and better provision be made for the Applicant as if Clause 7 of the Last Will of the Deceased dated 4 November 2009 were read and construed as if the Deceased’s interest in the property at 2 Phyllis Street, Eastern Heights in the state of Queensland described as Lot 22 on Registered Plan 83476, County of Stanley, Parish of Ipswich, were given to Patricia Robyn Sorfleet absolutely.
- $25,000 of the Applicant’s costs of and incidental to this proceeding be paid from the Estate.
- The costs of and incidental to the proceeding incurred by the Respondent and Robert John Garsden be paid from the Estate on an indemnity basis.
- [3]On 22 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.
- [4]The deceased died on 27 July 2010 and pursuant to his last will dated 29 September 1999, the respondent was appointed executor and trustee of the estate. The respondent was granted an order to administer that will, on 26 October 2010. The effect of the will was to divide the estate as follows:
- (a)To the applicant, a right to reside, for the duration of the applicant’s lifetime, in a property, located at 2 Phyllis Street, Eastern Heights (“the property” and which was owned by the deceased and the applicant in equal shares as tenants in common.) The applicant’s right to reside is provided subject to the applicant maintaining the property in a state of repair, insuring the property and paying all rates, taxes and insurance premiums on the property. Failure to carry out any of the above obligations would result in termination of the applicant’s right to reside.
- (b)To the deceased’s son, Robert John Garsden (“the residuary beneficiary”), the entire residue of the deceased’s estate.
- [5]The abovementioned orders were more particularly made upon the further application filed in this matter on 13 December 2011 and which effectively sought the implementation of a settlement between the parties in respect of this matter.
- [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.[1]
- [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.[2]
- [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 from 1999 and until his death.
- (b)During this relationship the applicant shared the incidence of expense with the deceased and otherwise contributed through the provision of household and domestic services and cared for the deceased, particularly through the last eight years preceding his death and after he was diagnosed with prostate cancer and underwent chemotherapy treatment.
- (c)The applicant was born on 22 August 1942 and is therefore aged 69 years and has previously been employed as a nurse, but is now in receipt of an age pension. She has some age related health problems; including high blood pressure, hearing problems and osteoporosis and is unable to work. She has an income of $715 per fortnight and fortnightly expenses of approximately $496.
- (d)Apart from her part equity in the property, the applicant’s only significant asset is savings in the sum of about $12,700. At the time of commencement of the de facto relationship with the deceased, the applicant owned a unit at Kingscliff, in which they lived together for about 15 months and which was then sold for approximately $75,000, with the proceeds now being reflected in the property.[3]
- [11]By way of comparison, the residuary beneficiary is aged 29 years, healthy and involved in gainful employment and he has no dependants. He has deposed to having net assets of approximately $200,000 in value.
- [12]The net value of the estate is estimated to be in excess of $270,000 (after costs and outlays) and estimated legal costs of the Public Trustee total $7,515.31.
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 support of her position, the applicant correctly describes her legacy under the will as a tenuous and conditional right to reside in the property for life, a right which could be simply extinguished by the need to seek care in a nursing home or retirement village. Further the applicant has referred to observations made in cases decided under comparable New South Wales legislation, as to the general inadequacy of the granting of a life tenancy in making provision under a will for a spouse.[5]
- [15]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] 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.
[2] The only other potential applicants for provision from the estate were the applicant’s children and step-children of the deceased and each executed a notification of intention not to so apply.
[3] As at 23 March 2011, the property was valued at $290,000.
[4] Having regard to the requirements of s 41(1) and (1A) of the Succession Act 1981.
[5] See in particular: Szlazko v Travini [2004] NSWSC 610 at [33]-[36].