McFarlane v The Public Trustee of Queensland
[2012] QDC 4
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- Unreported Judgment
- McFarlane v The Public Trustee of Queensland[2012] QDC 4
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McFarlane v The Public Trustee of Queensland[2012] QDC 4
McFarlane v The Public Trustee of Queensland[2012] QDC 4
DISTRICT COURT OF QUEENSLAND
CITATION: | McFarlane v The Public Trustee of Queensland & Anor [2012] QDC 4 |
PARTIES: | KIM NOLA McFARLANE (Applicant) v THE PUBLIC TRUSTEE OF QUEENSLAND (AS EXECUTOR OF THE WILL OF EVELINE DORA KREIDEL, DECEASED) (First Respondent) ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS QUEENSLAND INCORPORATED (AS A BENEFICIARY UNDER THE WILL OF EVELINE DORA KREIDEL) (Second Respondent) |
FILE NO: | 3050/11 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 31 January 2012 |
HEARING DATE: | 23 December 2011 (on the papers) |
JUDGE: | Long SC, DCJ |
ORDER: |
And it is directed that:
|
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. Singer v Berghouse (1994) 181 CLR 201 at 210. Szlazko v Travini [2004] NSWSC 610. Vigolo v Bostin (2005) 221 CLR 191 at [25]. Watts v Public Trustee (as executor of the estate of Neta May Bruigom) [2010] QSC 410. |
SOLICITORS: | Catton Roderick Lawyers on behalf of the applicant. Official Solicitor to the Public Trustee on behalf of the respondent. Wheldon & Associates on behalf of the Second Respondent. |
Introduction
- [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 substantial compliance with Part 6 of Chapter 13 of the UCPR, I am prepared to do so.
- [2]On 25 October 2010, the applicant, who is the daughter of the deceased, filed an originating application seeking provision, out of the estate of the deceased, pursuant to s 41 of the Succession Act 1981.
- [3]The deceased died on 29 January 2010 and pursuant to her last will dated 26 June 2009, the respondent was appointed executor and trustee of the estate. The respondent was granted an order to administer that will, on 15 March 2010. The effect of the will was to divide the estate as follows:
- (a)by money bequests (respectively pursuant to clauses 7.1, 7.2, and 7.3 of the will):
- (i)$10,000 each to the deceased’s son, Dwayne John Callon and her daughter (the applicant) and to her grandchildren, Kristal Ann Callon, Jayden John Callon and Maxine Louisa McFarlane;
- (ii)$30,000 to the deceased’s daughter Deborah Christine Callon; and
- (iii)$1,000 to the Save the Bilby Fund.
- (b)by way of special bequest (pursuant to clause 8 of the will) the deceased additionally gave to her abovenamed grandchildren (provided they live to be 21 years) all of her Telstra shares and dividends on those shares paid after her death; and
- (c)as to her residuary estate, a 25% share to each of:
- (i)The Royal Society for Prevention of Cruelty to Animals Queensland Incorporated (“RSPCA”);
- (ii)Greenpeace Australia Limited (“Greenpeace”);
- (iii)The Leukaemia Foundation of Queensland (“Leukaemia Foundation”); and
- (iv)The Lymphoedema Association of Australia (“Lymphoedema Association”).
- [4]Orders in this matter are more particularly sought upon the further application filed in this matter on 2 December 2011 and which effectively sought the implementation of a settlement or compromise of the parties.
- [5]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. Ultimately such orders are made as an exercise of discretion.
- [6]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 of 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.
- [7]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 particularly 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]
- [8]The resolution of the parties proposes that the applicant be paid from the estate, an additional sum of $55,000 and that this is to be inclusive of her costs of her application. When the application for effective implementation of this proposal came before me on 23 December 2011, I adjourned it for further consideration of the effect of the reference to the affidavit of the applicant, filed on 15 June 2011[2], in which the applicant deposes to seeking to have the gifts referred to above as the money bequests (except for that relating to the Save the Bilby Fund) and the specific bequest, exonerated from the burden or incidence of any order of the Court.[3] It was then necessary to clarify as to what was the intended resolution of the parties and if so, the form of orders necessary to implement such an outcome.
- [9]These issues have been clarified by the further affidavits of Mr Facer (a Senior Lawyer at the Public Trust Office), affirmed on 18 January 2012 and Ms Boron (RSPCA Membership, Bequests and Estate Coordinator), sworn on 16 January 2012[4], which evidence that it is the intended resolution of this matter that each of the abovementioned money bequests (including the gift to the Save the Bilby Fund) and the specific bequest, be exonerated from incidence of the further payment proposed to be made to the applicant and that a direction pursuant to s 41(3) of the Succession Act 1981 be given in order to achieve this outcome.
- [10]It is therefore apparent that under the proposal none of the gifts under the money and specific bequests will be reduced or affected. Further, the only other potential applicants pursuant to s 41 of the Succession Act 1981[5] are included in this group and no other application has been made under this legislation.
- [11]It can be noted that consequently to notices given by the applicant, in accordance with the directions of the Court dated 10 February 2011, the RSPCA became a party to the proceedings and filed material. Although Greenpeace did not join the proceedings, an affidavit from a responsible officer was filed and as the recently provided material has confirmed, each of the organisations which are the residuary beneficiaries of this estate and which bequests will bear the burden of the proposed further provision from the estate for the applicant, are aware of and agree to this proposal.
Circumstances
- [12]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 current part-time employment as a bookkeeper from which she earns approximately $107 per week and her additional sources of income being $450 per week from Centrelink and child support payments of $10 per week;
- (b)her assets having a total value of approximately $435,236, including a property at Caboolture valued at approximately $240,000 and superannuation entitlements of approximately $170,000;
- (c)the applicant is now aged 46 years and cares for her five year old daughter, Maxine and she is in good health. She had a strained relationship with the deceased over many years, having been requested to leave the deceased’s home when she was 18 years old, on Christmas Day 1983. From May 1985 until 1997 and when the deceased was diagnosed with cancer there was no communication between them. However, after August 2003, and following the applicant’s separation from her husband and move back to Caboolture, contact was re-established and following the birth of Maxine, on 22 February 2006 and her encouragement of the deceased’s involvement in the life of her granddaughter, their relationship improved significantly and the applicant did until her death, accompany the deceased to medical and hospital appointments and admissions; and
- (d)the applicant has embarked upon study through TAFE Open Learning to become BAS certified, so as to be able to continue working as a self-employed bookkeeper and to obtain higher qualifications and secure better paying employment, so as to better provide for herself and her daughter and to afford a significant list of repairs and ongoing maintenance required at her home.
- [13]From this brief summary, it can be seen that the applicant is not impecunious and has the capacity to advance her position through her own efforts and endeavours. However, her means are obviously modest and she is the carer for her young daughter. In addition there is the indirect benefit of the bequests to the applicant’s daughter, to be taken into account.
- [14]The primary issue is as to whether the material allows a conclusion that the applicant has been left without adequate provision for her proper maintenance and support and in Singer v Berghouse[6] the observation of the High Court is that this assessment is to be undertaken:
“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.”
In Vigolo v Bostin[7], Gleeson CJ described the assessment as requiring a value judgment based on considerations of moral claims and moral duty.
- [15]In the circumstances of this case (as outline above) the competing claims are as between the applicant and the public bodies which are the residuary beneficiaries and it is of significance that the effect of the compromise and the process leading to it is that none of those beneficiaries seek to further litigate this matter.
- [16]I am informed that the net value of the estate is estimated to be approximately $222,000 (after the payment of legal fees and costs) and the modest amount of the available estate is an obviously salient circumstance in relation to consideration of the effect of the parties compromise, particularly having regard to the potential for the estate to bear the incidence of additional cost of further litigation of this application.
Conclusion
- [17]It is not necessary to discuss this evidence in any further detail, as it is apparent that there was a basis for the application[8] 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.
- [18]In the circumstances, I am satisfied that the agreed proposal of the parties, as to the provision from the estate for the applicant, is within an appropriate range and it is accordingly ordered:
- That further and better provision be made for the Applicant, in addition to her entitlement pursuant to the terms of the Last Will of the Deceased dated 26 June 2009, by the Applicant, Kim Nola McFarlane, being paid the sum of $55,000.00 (all up inclusive of costs) from the Estate of the Deceased (“the Further Provision Sum”).
- That the Respondent’s costs of and incidental to this proceeding be paid from the Estate of the Deceased on an indemnity basis.
and it is directed that:
- the Further Provision Sum be paid to the solicitors for the Applicant following sale of the Deceased’s former property of 59 Peter Street, Strathpine; and
- the gifts in clauses 7.1, 7.2, 7.3 and 8 of the Last Will of the Deceased dated 26 June 2009 be exonerated from the incidence of this Order.
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] Court document number 8.
[3] As may be effected pursuant to s 41(3) of the Succession Act 1981.
[4] Leave is granted for these affidavits to be read and filed in this application.
[5] Being the other surviving children of the deceased: Dwayne John Callon and Deborah Christine Callon.
[6] (1994) 181 CLR 201 at 210.
[7] (2005) 221 CLR 191 at [25].
[8] Having regard to the requirements of s 41(1) and (1A) of the Succession Act 1981.