McElligott v McElligott[2014] QDC 178

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This matter concerns interrelated issues arising in respect of the return of one originating application and interlocutory applications made in respect of this and another such application. The two originating applications have been filed by Lorain Ronda McElligott, the mother of the children Takarli Joy McElligott and Tarson James McElligott and on whose behalf, each originating application is purportedly made.

2. [2]
   These originating applications represent Ms McElligott’s latest attempts to obtain a benefit from her late mother’s estate, for her children. Since her mother’s passing, on 22 September 2012, Ms McElligott has been involved in a deal of litigation in respect of this or similar issues. At the epicentre, is the decision in McElligott v Public Trustee Queensland & Ors^[1], wherein it was determined that:

1. (a)
    a clause in the will of the deceased, did not have the effect of creating any equitable estate in the real property of the deceased and in favour of these children and therefore, no right or entitlement to any of the proceeds of the sale of that property; and
2. (b)
    because of Ms McElligott’s bankruptcy and upon administration of the estate, her entitlement to a share of the residuary estate will belong to or be vested in the official trustee in bankruptcy. 

3. [3]
   The originating application, No. 52/14, seeks that provision for the children be made from the estate of Joyce Alice McElligott (“the maintenance application”), pursuant to s 41(1) of the Succession Act 1981 (Qld) and the originating application, No. 70/14 and which was returnable on the hearing date, sought, amongst other things, that the Court appoint a litigation guardian for the maintenance application made under the Succession Act.

4. [4]
   In respect of each application, the respondent has sought summary dismissal pursuant to UCPR 293. Although this rule does not provide the appropriate basis for such an application^[2], UCPR 371 does, as far as there has been a failure of compliance with the rules in making the application. However that rule attracts the provisions of Part 8 of Chapter 11 of the UCPR and there is no suggestion of the necessary exchange of correspondence in compliance with UCPR 444 and 445 and therefore and subject to UCPR 448, UCPR 447 stands as an impediment to hearing the respondent’s applications under UCPR 371.

5. [5]
   A complaint of Ms McElligott is to the effect that she has been forced to pursue these applications because of the failure of the Executor to perform his duty under s 41(7) of the Succession Act 1981 and to make an application to the court on behalf of the children. However that contention mistakes the permissive rather than mandatory terms of the sub-section and the view of the Executor that there is no sufficient basis for making such an application is a justifiable one, having regard to the reasons to follow^[3]. It may also be noted that the evidence before the court indicates that the Public Trustee, has considered but declined to act as litigation guardian in any such application for these children^[4].

6. [6]
   At the outset, it may be noted that, as has been previously determined in respect of other applications brought by Ms McElligott, also purportedly for and on behalf of her children but without compliance with UCPR 93, in that they were brought without the appointment of a litigation guardian and without the involvement of any solicitor, the originating applications before the court are obviously incompetent or at least irregular, to the extent that they are brought by or on behalf of the children.

7. [7]
   However, therein lies an inherent difficulty, in that and notwithstanding it being styled, or entitled, as an application brought on behalf of her children, the true effect of the returnable application, No. 70/14, is that it is the application of Ms McElligott, in her own right, appealing to the power of the court to appoint a litigation guardian to enable the maintenance application, to proceed. In application No. 70/14, orders are sought in the following terms (omitting some presently irrelevant notations and citation of authorities):

1. "1.
   Pursuant to the court’s parens patriae jurisdiction and its inherent power to protect the welfare of unrepresented minors, that Linda Christine Blair of 1/21 Peregrine Drive, Wurtulla, with her consent, be appointed as the litigation guardian of Takarli Joy McElligott and Tarson James McElligott in order that that their family provision claim as dependent minors on Joyce McElligott as the time of her death be properly represented and heard by the court. (MDC 52/14). …
2. 2.
   Pursuant to the inherent power of the court under its parens patriae jurisdiction to protect unrepresented minors and the Trusts Act 1973, that the Executor and Trustee of the Joyce Alice McElligott provide an undertaking to indemnify Linda Christine Blair from the estate against all legal fees and costs (including that of obtaining legal advice/opinions) and representation costs and all awarded court costs regards the two minors’ Family Provision claims. …
3. 3.
   Pursuant to the Trusts Act 1973 SEC 80, that Linda Christine Blair of 1/21 Peregrine Drive Wurtulla, Jeweller be appointed as the TRUSTEE of Takarli Joy McElligott and Tarson James McElligott in relation to any interest/claim that they do have or are deemed to have in relation to the Estate of Joyce Alice McElligott. 
4. 4.
   As it is incumbent upon the Executor to have appointed a person to act as litigation guardian on the infant’s behalf for the purpose of bringing a claim, and as he has failed in is duty to do so, and the court’s inherent power under a parens patriae jurisdiction being so evoked; that the application be heard and determined not withstanding the legal disability of the applicant’s mother Loraine Ronda McElligott. 
5. 5.
   That the respondent pay the applicant’s costs.”

Discussion

8. [8]
   For the reasons to follow, it is not necessary to decide Ms McElligott’s contention as to the basis for orders sought as to the appointment of the litigation guardian, being in the exercise by this court, of some inherent jurisdiction in the nature of a parens patriae jurisdiction.  Although it is doubtful that such an inherent or implied jurisdiction does exist^[5], because the existence of such a jurisdiction is usually and traditionally noted in respect of a constitutional court of unlimited or plenary power, particularly in the exercise of equitable jurisdiction, such as the Supreme Court of Queensland and it is, at least, not clear as to how such a power may be found, except in the express powers provided to this court under the statute establishing it or by necessary implication arising there from. Whilst Ms McElligott has referred to some authorities that discuss this issue in respect of the District Court of Western Australia^[6], those decisions are necessarily concerned with different statutory context and here it is necessary to have regard to the provisions of the District Court of Queensland Act 1967.

9. [9]
   Whilst the Executor is prepared to concede that this court does have the requisite power to make the order appointing a litigation guardian, by virtue of Part 4 of Chapter 3 of the UCPR and s 68(1)(b)(x) of the District Court of Queensland Act 1967, he otherwise takes the position that this is not the basis upon which Ms McElligott seeks the orders.  For present purposes, two points may be noted.  UCPR 95(2) provides a sufficient power for the making of the order sought, but only in respect of a proceeding that is otherwise within the jurisdictional compass of the court in which it is sought.   Further, it can be noted that s 69 of the District Court of Queensland Act 1967 may also be relied upon to allow this court to exercise “all the powers and authorities of the Supreme Court”, “for the purposes of exercising the jurisdiction conferred” on this Court under Part 5 of the Act.  It being common ground that the amount of any provision which is sought or might be made from the estate, would be within the monetary limits of the jurisdiction of this court and leaving aside the present incompetence or irregularity of it (which is sought to be addressed by the application for the appointment of the litigation guardian) the maintenance application would be within the jurisdiction of this court. Accordingly these circumstances warrant the consideration of all matters raised, including the applications made by the Executor.

10. [10]
    To the extent that the proceeding in No. 70/14 may be regarded as an application brought personally by Ms McElligott, the essential impediments to the other proceedings that Ms McElligott has purportedly brought for or on behalf of her children, are not present and neither does there appear to be any impediment to her doing so, under the Bankruptcy Act 1966 (Cwth) and particularly s 60 of that Act.

11. [11]
    However that application becomes redundant or futile, if, as the respondent has sought, the primary application for maintenance is bound to fail or should otherwise be dismissed. In Higgins v Higgins^[7], the power to make the order sought, was identified as UCPR 658 or alternatively the inherent (or here implied) jurisdiction of the court.

12. [12]
    In the first instance attention may be directed to the basis on which Ms McElligott applies for the appointment of Ms Blair as the litigation guardian. First, it can be observed that this could be simply achieved if Ms Blair filed a consent in accordance with UCPR 95(1). But the litigation guardian is required to act and be represented by a solicitor and despite Ms McElligott’s assurances that if the litigation guardian is appointed by the court a solicitor will be engaged, the present absence of such engagement is not a promising starting point.

13. [13]
    A further complication is that an upfront indemnification of the litigation guardian is also sought. That is also a problematic proposition and the only authorities put forward in support of it, do not provide any such support, as they relate only to instances where a litigation guardian has recovered costs from the estate, at the conclusion of proceedings for construction of a will.^[8] The principles to be applied in respect of costs orders in respect of maintenance applications were reviewed in Underwood v Underwood.^[9] As is demonstrated by that decision there can be no expectation that any applicant for maintenance will be able to recoup the costs of an unsuccessful application, from the estate. Jones J observed:

32. "[32]
    There was at one time a perception that a claimant’s costs, even an unsuccessful claimant, would be recoverable from the estate. That perception was dispelled a considerable time ago and now orders are commonly made, either disallowing costs for an unsuccessful applicant, or ordering such a claimant to pay costs. Costs in this jurisdiction have not been awarded on the traditional basis of “costs following the event", rather the question to be considered is whether the applicant’s pursuit of the claim was reasonable. The authors in De Groot & Nickel “Family Provision in Australia” (supra) note that the usual orders are costs to be paid out of the estate on an indemnity basis for a successful applicant and no order for costs for an unsuccessful applicant. They note that in New South Wales and Victoria when an application is dismissed, the applicant is usually ordered to pay the costs of the respondent. The personal representatives would normally be entitled to indemnity costs out of the estate.”^[10]

14. [14]
    It is an unusual application for the position to be foreclosed at the outset by an upfront order indemnifying the purported litigation guardian. Quite apart from any implication of absence of complete confidence in the prospects of succeeding on the maintenance application, the application for indemnification could only conceivably succeed if the interests of justice required it and perhaps to enable a clearly meritorious application that might otherwise not be able to proceed.^[11]

15. [15]
    Accordingly, the application that the court appoint the litigation guardian and particularly the related application for indemnification in respect of costs that may be incurred by such litigation guardian, would logically demand some assessment of the merits or prospects of the proposed application for maintenance. That consideration may itself be sufficient, in the circumstances and to any necessary extent, to allow excusal, under UCPR 448, of any lack of compliance with Part 8 of Chapter 11, in respect of the respondent's applications. Further and as pointed out by the respondent, there are instances of summary dismissal of maintenance applications, particularly where an absence of a prima facie case or any reasonable prospects of success, may be identified.^[12]

16. [16]
    It is obviously desirable that these contentions be dealt with sooner rather than later and therefore appropriate to determine the respondent’s application for dismissal of the maintenance application, before returning to the application in respect of the appointment of the litigation guardian.

The Respondent’s Application

17. [17]
    The respondent’s application for dismissal of the maintenance application is first made by particular reference to the merits of the application and the contention that it is fundamentally flawed, in that it lacks a prima facie case or is bound to fail.

18. [18]
    That contention does not necessarily depend on any assessment of the circumstances that may be relevant to the value judgments involved in the two stage process to be applied under s 41 of the Succession Act, as explained in Singer v Berghouse^[13] and Vigolo v Bostin^[14]. Although, it may also be noted that in the terms of s 41(1A) of the Succession Act, a court “shall not” make an order under s 41(1) for a dependent unless satisfied “that it is proper that some provision should be made for the dependant”:

“having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case”.

19. [19]
    Rather the respondent contends that there is a more fundamental problem in respect of the application, in that neither of the children on whose behalf the application is proposed, can be brought within the purview of s 41, as a “dependant” of the deceased, at the time of her death. That requirement is defined in s 40, as follows:

“dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person's death being—

1. (a)
   a parent of that deceased person; or
2. (b)
   the parent of a surviving child under the age of 18 years of that deceased person; or
3. (c)
   a person under the age of 18 years.”

20. [20]
    Obviously the children were under 18 years of age, at the time of death and therefore the question is as to whether they were “being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by the deceased at the time of [her] death”.

21. [21]
    In respect of the materials before the court the following may be taken from the written submissions of Ms McElligott^[15] as an appropriate summary of the factual contentions able to be made for the children, on this point and putting those circumstances at their highest:

“The Mother of the children claims that the two children were directly and partially dependent on the Deceased at the time of her death. 

She has deposed in her affidavit of 21 March 2014 annexed to the minor's maintenance application that "her mother moved in with her when her daughter was 3 days old that

1. a.
   We lived together as a family and shared household chores and expenses, dreams and 'the children'. By choice, Joyce became a 'second parent' to Takarli  and later my son Tarson born three years three months later.
2. b.
   Due to my own personal situation which deteriorated in October 2009, she also became the primary care-giver for the children, except for short periods of illness and her hospitalisation (8 wks in her last year). She was remarkably active and healthy for her age.
3. c.
   Joyce was the primary care-giver of the two children, taking care of their everyday needs such as cooking meals for them, washing their clothes, taking them to the park for hours on end daily, supervising their meal and bath and bedtimes and in the case when they were babies changing nappies and overseeing their every move.
4. d.
   She was building a new house at 186 Collins Road for herself and 'the children' and I.  She designed it around the children's needs and the life on the farm that she had planned for them.
5. e.
   At the time of her death, she was paying $1295 pm from her Veteran Affairs Window's Pension (approx $2000pm) to meet the repayments on the house. She did not have a lot left over. We gave to each other freely and willingly and without keeping tabs as families do.”

22. [22]
    In addition:

1. (a)
   It is correctly asserted that “it is the totality of the relationship of the deceased with the Children that must be examined in order to establish the question of dependency”^[16]; and
2. (b)
   Support for the claim is sought to be gleaned from evidence before the court:

1. i)
   as to steps taken by Ms McElligott in conjunction with her mother in order to provide that in the event of the death of Ms McElligott, the deceased was to be their guardian; and
2. ii)
   in the letter of Ms McElligott’s sister, Cheryl McElligott, to the Nambour Hospital dated 22 September 2012 that “Mum lives with Lorain and her two small children and has done since their birth so they are as much her family as her own children”; and
3. iii)
   from the affidavit of Mr David Baird (who had been involved in the arrangements for construction of the residence on the deceased’s property): "Joyce spoke to me about her plans to build a home for herself and her daughter and the two children an acreage property she had recently purchased at Ninderry” and “it was clear to me that it gave her great pleasure in designing the home for ‘the children’”.

23. [23]
    Further, reliance is sought to be placed on an opinion expressed by a solicitor, who at that time was acting for Ms McElligott and who, in a letter dated 12 December 2013, directed to the Public Trustee seeking a reconsideration of the position at the Public Trustee not to consent to act as litigation guardian in application for maintenance for the children.^[17]  And in particular, the following recorded assertion:

“I believe that in the particular circumstances of this case, the children should be entitled to a very substantial proportion of the estate.”^[18]

24. [24]
    Whilst ultimately and in the context of the facts that are relied upon to found such a claim, it is for this court to assess the merit or prospects of these purported claims, it can be noted that any weight that might be given to this opinion is limited by the context in which it was expressed. In particular, it is clear that it was expressed more as a view as to the quantum that might be awarded, if an entitlement were otherwise established and the solicitor had earlier in the letter, expressly identified a contentious issue:

“There may be some contest about whether the children were ‘dependents’ of the deceased at the time of her death within the meaning of section 40 of the Succession Act 1981 (Qld).  There is detailed discussion of the meaning of the words ‘wholly or substantially maintained or supported’ in the judgment of Mullins J in Lohse v Lewis & Anor [2004] QSC 36 – see paragraph [95]:

‘The word ‘wholly’ is unambiguous.  The word ‘substantially’ indicates something less than ‘wholly’, but it connotes something which is still significant.  It could not possibly mean in that context ‘not merely nominal, ephemeral or minimal’.  It could in this context be appropriately paraphrased by the words ‘in the main’ or ‘as to the greater part’: cf Department of Social Security v Wetter [1993] FCA 17; (1993) 40 FCR 22, 30.  In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account.’

I am instructed that the deceased was the primary care giver for the children in the sense that she lived with the children and looked after them most of the time.  Lorain’s capacity to care for the children during the months prior to the date of death was affected by a clinically diagnosed severe anxiety/depression disorder and she was either employed (part-time or completing a CRS Australia programme to assist her to obtain employment).  The deceased also contributed financially to the maintenance and support of the children.

The future arrangements planned by the deceased are evidenced by the terms of her will and the affidavit of Samantha Mary Handley sworn 9 August 2013.  At the time of her death, she was trying to complete the house she was building to provide a home for the children and their mother.”^[19]

25. [25]
    That issue lies at the threshold of the respondent’s application and the respondent relies upon the approach taken in McEwan Shaw & Anor v Shaw^[20] and particularly the conclusion as to the effect of some New South Wales decisions, being that:^[21]

80. "[80]
    Griffiths v West and Pearson v Jones indicate that a testator's provision of benefits to his or her own child, which a grandchild shares, does not, without more, give rise to a direct dependency or a responsibility to provide.”

26. [26]
    Reference to that decision and the Victorian legislative provisions^[22], indicate that there is no limitation or restriction on the classes of person who might apply for provision out of an estate, except to the extent that the court must decide whether the applicant is “a person for whom the deceased had responsibility to make provision”, in order to decide whether to order such provision, “for the proper maintenance and support of [that] person.”^[23]  However there are specified factors to which a Victorian Court must have regard^[24] and those include:

1. "(m)
   Whether the applicant was being maintained by the deceased before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility.”

27. [27]
    Accordingly, the observation cited from the judgment in McEwan Shaw & Anor v Shaw was largely incidental to the following conclusions:

213. "[213]
     The amended legislation, while expanding the class of eligible applicants, confers only a limited jurisdiction to interfere with freedom of testation. It does not license the court to effect a redistribution of an estate because it would satisfy notions of familial generosity, or because the claimant has few resources and the defendant taking benefits under the will is relatively well off.
214. [214]
     Rather, it remains necessary to establish a need for provision and maintenance in the applicant in order to enliven the jurisdiction. If the need is not established, the court has no jurisdiction to make an order, no matter how large the testator's estate. Nevertheless, the size of the estate is not irrelevant to determining need, which is not an absolute concept.
215. [215]
     Further, it is necessary to establish a breach of duty or moral obligation on the part of the testator, which constitutes a departure from the standards which a wise and just testator would have applied. There must be an abuse of the freedom of testation.
216. [216]
     Prevailing community standards, which may alter according to changing social and economic conditions, are the criteria against which the duty and moral obligation, and any departure from them, must be measured.
217. [217]
     According to prevailing community standards and applicable law, as consistently recognised by this Court, the obligation to maintain and provide for infants ordinarily rests upon their parents, rather than on grandparents.
218. [218]
     For the defendant, it was submitted that in order to establish a grandparent's moral obligation to provide for children, there must be "truly exceptional" circumstances, where, for example, it is possible to conclude that the grandchild performed special services for the deceased requiring recognition (Collicoat v McMillan^[25]) or alternatively, that the deceased assumed a parental role at least for a time or to a material degree, establishing a substantial dependency.
219. [219]
     The defendant further submitted that a relative want of resources in the parents does not, without more, create an obligation towards grandchildren, even if the deceased grandparent has habitually made significant gifts to those parents, which assisted them to fulfil the responsibility to provide for their children.
220. [220]
     In contrast to the New South Wales legislation, the Victorian provisions impose no precondition of dependency in order to establish a moral duty to provide for a grandchild. The Victorian legislation is more flexible, although the determination of responsibility is governed by reference to specified factors.
221. [221]
     While a grandparent's assumption of the parental role of provider is a strong prima facie indicator of a responsibility, it is not conclusive. In every case, it would be necessary to consider the particular circumstances of the relationship and the impact of each of the other factors specified in s.91(4)(e) - (p) of the Act.
222. [222]
     Conversely, the absence of a de facto parental role in a grandparent will not necessarily exclude responsibility in the relevant sense. Where a grandparent of ample means has done nothing during life to assist a grandchild who has significant needs, the wise and just testator reflective of prevailing community standards might well recognise, in certain circumstances, a moral duty to provide.
223. [223]
     In my opinion, however, where children are in the primary care of their own parents, who are capable of fulfilling their basic needs, prevailing community standards would not, in the absence of some special factor or unusual circumstances, impose on a grandparent a responsibility to provide.
224. [224]
     In the present case, nothing establishes any direct dependency by the infant plaintiffs upon the deceased.”

28. [28]
    Further and after additional findings as to the circumstances of the plaintiffs and the history of their relationship with their grandparent, the ultimate conclusions reached in dismissing the proceeding, were:

235. "[235]
     The familial generosity of a grandparent should not, in the absence of other relevant circumstances, be recognised as the basis of a direct responsibility to make further, testamentary provision for the private education of a grandchild who is in parental care, particularly when the grandparent's chosen beneficiary is his or her surviving spouse of longstanding. The fact that the child's parents are of modest means, while the estate could satisfy the claim without significant adverse impact on the chosen beneficiary, will not, without more, found a grandparental responsibility to provide maintenance and support.
236. [236]
     In the present case, I do not consider that the deceased, judged by reference to the wise and just testator reflective of prevailing community standards, had a responsibility to provide for the maintenance and support of the plaintiffs. There are no circumstances which justify the imposition of a moral duty upon the deceased as a grandparent. In particular, his failure to make testamentary provision for funding the plaintiffs' secondary education at a fee paying private school did not, in my opinion, constitute a breach of moral duty or an abuse of freedom of testation.”

29. [29]
    It can therefore be seen that the questions necessarily became intertwined and were substantially determined by reference to the application of the test drawn from Singer v Berghouse and Vigolo v Bostin, as to the establishment of obligation (or moral duty) for provision to have been made out of the estate and by reference to the specified considerations, required by the Victorian legislation.

30. [30]
    By way of contrast and having regard to the provisions of s 41 of the Succession Act 1981, in Queensland there is a more discrete issue as to entitlement to apply and here the need to satisfy the definition of “dependent” in s 40.  In that regard, the Queensland position is more like the position in New South Wales and which applied in those New South Wales decisions, to which reference was made in McEwan Shaw & Anor v Shaw.

31. [31]
    However and whilst the New South Wales provisions require that the applicant was wholly or partly dependent on the deceased, that may be established at any particular time, rather than the date of death and a court must also be satisfied that there are factors warranting the making of the application. In that context, not only is the effect of the New South Wales cases that the dependency be direct rather than indirect, in the sense noted in McEwan Shaw & Anor v Shaw,^[26] but it has also been decided that “partly dependent” in that legislation, suggests a meaning of “more than minimally” and perhaps “significantly”.^[27]

32. [32]
    In these reasons, it is not necessary to separately review the New South Wales decisions, that were considered, in some detail, in McEwan Shaw & Anor v Shaw. Notwithstanding that the circumstances under consideration in that case were markedly different to those pertaining here and, as has been noted, the legislative context, for such consideration, also different, reference to those New South Wales decisions demonstrates the correctness of the principle as summarized in McEwan Shaw & Anor v Shaw, at [80] and applied at [223]^[28]. That includes Tsivinsky v Tsivinsky^[29], which was also reviewed in McEwan Shaw & Anor v Shaw and is specifically relied upon by Ms McElligott.

33. [33]
    In addition, the Executor points to the circumstance that quite apart from the incompetence of it, due to the absence of a litigation guardian acting through a solicitor, this application has been brought well outside the time limit provided by s 41(8) of the Succession Act 1981 and therefore and “unless the court otherwise directs, … shall [not] be heard”.^[30] 

34. [34]
    In Tsivinsky, no different test was applied and the outcome is explained by the different legislative provisions and facts that applied. In that case the court was concerned with claims made by grandchildren of the deceased and the application of the following statutory provision, providing for an eligibility to make such a claim:^[31]

“‘Eligible person’, in relation to a deceased person, means (d) A person –

1. (i)
   who was, at any particular time, wholly or partly dependant upon the deceased person; and
2. (ii)
   who is a grandchild of the deceased person or was at; that particular time or at any other time, a member of a household of which the deceased person was a member.”

35. [35]
    In this regard and to adopt the words of Kirby P^[32]:

“To establish eligibility, it is enough that some period of entire or partial dependency upon the deceased person should be shown at some particular time”.

His Honour had earlier summarized the circumstances that he concluded made it “plain that for both grandchildren, there was such a period”, as follows:

“During various times in her early infancy and when her mother was being intermittently cared for in mental hospitals, Ms Maria Tsivinsky resided at Brady Street with her grandparents. When her mother commenced living with Mr Morgan, she accompanied him into that relationship. But following her mother’s death, Ms Maria Tsivinsky and Mr John Morgan came into the custody of their grandparents, the deceased and Mr Igor Tsivinsky. They were then aged 5 years and 7 months respectively. The two children lived together with their grandparents at the Brady Street home until January 1981. By that time, Mr Sabri Morgan had remarried. He applied for custody of both children. However, he obtained custody only of his son John, who was then 4 years 10 months old. Ms Maria Tsivinsky continued to live with her grandparents. She would presumably have remained with them until adulthood. However, in late 1983, the deceased suffered a cerebral catastrophe. Ms Maria Tsivinsky, then aged 12 years, left the home at Brady Street and commenced living with the family of a school friend. This arrangement endured for three months. In 1984 she commenced to reside with the Ostin family. She remained with them until August 1988 when she moved in with the Demidov family where she was when the present proceedings began.”^[33]

36. [36]
    In this regard, the Executor places reliance on the decision of the Court of Appeal in Curran & Ors v McGrath & Anor^[34], particularly as to the import of that decision, to the effect that it is necessary to establish that it is just and proper for an extension of time to be allowed under s 41(8) and that simply having a meritorious claim may not be sufficient.^[35]  It can be noted that the Court of Appeal endorsed earlier observations made in Bird v Bird^[36], by White J and citing Clayton v AUST^[37] as to the time limitation being a matter of substance, rather than mere procedure and therefore casting a burden on an applicant, which transcends triviality and requires the making out of “a substantial case for it being just and proper for the court to exercise its statutory discretion to exten[d] the time” and Hills v Chalk & Ors (as executors of the estate of Chalk (deceased))^[38], that this limitation has the obvious purpose of avoiding undue interference with the prompt administration of the estates and enabling beneficiaries named in wills, the ability to arrange their affairs and utilise their resources on the basis that claims can no longer be made against [the estate]”.^[39]

37. [37]
    However and notwithstanding that there is some circumstantial similarity to Curran, in that and although there had been a timely notification of an intention to make the application by daughters of the deceased, but none made before the time limitation had passed, particular prejudice was there found, in that the application was not made until after the resolution of a dispute between the wife of the deceased and the executors of the estate, who were the sons of her and the deceased and where there was no adequate explanation for the substantial delay in filing^[40] and then without service for several months.  It was found that it should be inferred that each appellant knowingly let the time limit pass, so as to permit the executors to operate under the assumption that “no applications were to be brought”.^[41] In respect of the evidence accepted by and findings made by the trial judge, the Court of Appeal concluded:

“[54] As the primary judge pointed out, the appellants were legally represented within the nine month time limit and no appellant swore to being unaware of the existence of the time limit. It is difficult to resist the conclusion that the appellants made a deliberate choice not to bring their applications, not merely before the resolution of their mother's dispute with the respondents but until after payment of the settlement moneys of $7,500,000, lest the applications prejudice their mother's interests in her dispute with the respondents. It tends to follow from that conclusion that the argument that the delay did not cause prejudice to the respondents cannot be accepted.

[55] The respondents swore, in effect, that they settled with Mrs McGrath for substantially more than they would have if they had believed that the appellants would bring their applications. Additionally, the respondents swore to being aware of the expiration of the limitation period. Mr John McGrath said:

‘I was aware that my mother and sisters had had a QC and a barrister as well as a solicitor acting for them and they had money to pay for good legal advice and they knew that the 9 month period of limitation had passed. I felt an enormous sense of relief as I thought that all of our legal disputes would be over. Sadly I was wrong.’

Mr John McGrath, swore that he agreed to pay the sum of $7,500,000 to his mother, which he regarded as "well above the level which [he] considered [he] should pay" because he wanted to "keep some peace within the family" and because he knew that his sisters "would obtain their fair share from [his] mother". Mr Robert McGrath gave evidence to like effect.

[56] That evidence was accepted by the primary judge. He was entitled to accept it. It was not challenged in cross-examination and, importantly, the evidence accords with objective likelihood. The conduct of the appellants indicates a belief on their part that the bringing of the applications would have had a bearing on the outcome of negotiations adverse to their mother. The filing of their applications on the day the $7,500,000 was paid was hardly coincidental. It seems obvious enough, having regard to their mother's age, which was 80 at the time of the trial, that the appellants' own financial interests were advanced by a favourable outcome for their mother in the dispute. I do not mean to suggest that the appellants, in supporting their mother, were motivated by self interest but it must have occurred to each of them that the enhancement of Mrs McGrath's assets was likely to benefit her on Mrs McGrath's death if not before.

[57] The challenge to the primary judge's finding that the respondents acted on the assumption that the appellants would not bring claims against the Estate must be rejected.”

38. [38]
    The Executor points to the cost that has and is likely to be incurred by the estate, due to ongoing litigation. In his affidavit, filed in No. 52/14, the Executor deposes to the significant history of disputation and litigation undertaken by Ms McElligott, in relation to their mother’s estate.^[42]  Notwithstanding her bankruptcy, as ordered by the Federal Magistrates Court on 25 June 2012^[43], this has included:

1. (a)
   An originating application filed in the Supreme Court of Queensland on 25 November 2012, purportedly as litigation guardian for her son and seeking interpretation of cl 6 in her mother’s will, which application was, on 6 December 2012 summarily dismissed;
2. (b)
   An originating application filed in the Supreme Court of Queensland on 20 December 2012, purportedly as legal guardian for her son and seeking an order for recognition of an equitable interest given under cl 6 of her mother’s will.  When approached in respect of this matter the Public Trustee agreed to act as litigation guardian and, as a consequence of mediations conducted in April and May 2013, the Executor agreed to bring an application seeking a construction of cl 6 of the will.  That matter was determined on 12 November 2013, with two critical determinations, being that:

1. (i)
   It was not established that the will gave the grandchildren anything more than a personal right to live on the property and consequently upon any sale they had no entitlement to any part of the proceeds of the sale of that property; and
2. (ii)
   On the administration of the deceased estate whether before or after Ms McElligott’s discharge from bankruptcy, Ms McElligott’s entitlement to a share of the residuary estate will belong to official trustee in bankruptcy.^[44]

3. (c)
   Further and on 27 November 2013 and when further orders were made, including that the Executor recover costs in the sum of $26,000 from the public trustee and as to the removal of a caveat lodged on the Ninderry property by Ms McElligott, to enable the settlement of the contract for sale of the property by the Executor and a further order to restrain interference with the performance of that contract by Ms McElligott.^[45]  Ms McElligott’s application filed on 21/12/12 was also dismissed.^[46]
4. (d)
   On 7 January 2014, Ms McElligott lodged a notice of appeal in respect of the determinations made on the Executor’s application^[47] and this was struck out by order made on 24 March 2014 and on application by the Executor^[48]; and
5. (e)
   On 14 January 2014, Ms McElligott filed an originating application, in this court, purportedly on behalf of her children and seeking orders that no distribution of the estate occur unless and until a maintenance claim for her children, was recognised and resolved.  That application was dismissed, as incompetent, by my order on 17 January 2014.^[49]

39. [39]
    In his affidavit, the Executor deposes to the incurrence of approximately $80,000 in legal fees, in excess of what may have been incurred in a normal administration of this estate and also that the public trustee has paid an amount of $26,000 in respect of the costs of Executor in the application decided on 12 November 2013 and has also incurred an amount of $36,450 in respect of the unsuccessful mediations.^[50]  The Executor also deposes to the fact that the uncompleted Ninderry property, being the substantial asset of the estate and the circumstances of a lack of available resources to complete the construction of the residence on that property, was needed to be sold in order to pay the outstanding debts of the estate.  The end result is that some $290,000 is held in trust awaiting distribution, out of what might have been an amount in the order of $370,000, had the litigation and disputes referred to above not been engaged.^[51]

40. [40]
    Whilst it is acknowledged that orders have been made that Ms McElligott pay the Executor’s costs of the summarily dismissed proceedings (as referred to in subparagraphs [8](a), (c) and (d) above) which could recoup an amount in the order of $45,000, such would necessarily depend on an ability to recover these amounts, subsequently to Ms McElligott’s discharge from bankruptcy.

41. [41]
    Further and in response to the circumstances relied upon by Ms McElligott, the Executor deposes that:

1. (a)
    Although the deceased had lived with Ms McElligott and the children for a number of years, from approximately 2008, Ms McElligott was in receipt of a carers benefit, as the full time carer of their mother;
2. (b)
    Whilst it is not contested that their mother would have done all that she could to assist Ms McElligott in caring for the children, she was aged 88 when she died and had suffered from a number of significant health issues, which increasingly affected her quality of life over a significant period prior to her death;
3. (c)
    Whilst it is also not in contest that the Ninderry Property was designed by their mother as a family home for herself and Ms McElligott and the children, provision had also been made to allow other family members to also live there;
4. (d)
    Their mother’s sole source of income was a Veteran Affairs pension of approximately $497 per week and at the time of her death there were significant credit card debts and approximately $40,000 owing to the builders of the uncompleted home on the Ninderry Property; and
5. (e)
    Whilst it is conceded that their mother may well have contributed to the purchase of groceries, from his examination of their mother’s financial affairs, as Executor of the estate, he was not aware of any specific payments made by her for the benefit of the children, such as school or care fees or medical bills or into any bank accounts for the children^[52].

42. [42]
    The Executor further points out that Ms McElligott relies upon the deceased’s payment of $1,295 per month towards the mortgage on the Ninderry Property and the reality that this would have left her approximately $173 per week to otherwise contribute to the household or the children^[53]. In this regard, he points to an implication of the extent to which Ms McElligott must have provided financial support to their mother^[54] and that this is consistent with an unsuccessful claim made by Ms McElligott against the estate in QCAT for the recovery of a minor debt of $25,000.00^[55].

43. [43]
    Although the Executor makes some allegations^[56] as to improper dealing by Ms McElligott in relation to the ownership of shares in a company and that (in a way that is not clearly explained) property valued at approximately $600,000 was taken from the estate, it is otherwise contended that relates to a block of flats at Maroochydore, where Ms McElligott has and continues to reside with her children.^[57] However and in that regard it should also be noted that Ms McElligott deposes to income only from allowance through Centrelink and that “[o]ur property is currently in the process of being re-possessed by St George Bank and we have no savings”.^[58]

44. [44]
    Further, the Executor points to the determination^[59] that Ms McElligott’s entitlement to a share of the residuary estate, is vested in the Official Trustee in Bankruptcy and that any ongoing litigation in relation to this estate has and will only further serve to dilute the shares of the remaining beneficiaries, which have already been reduced from approximately $75,000 to approximately $58,000 each^[60]. It is pointed out that of the five sibling beneficiaries, his other sisters, apart from Ms McElligott, are also in straitened financial circumstances, without significant assets and that two of them are unable to work through disability and one in receipt of disability support pension^[61]. Generally in this regard, it is also pointed out that there are estimates of the potential costs of a maintenance application being in the order of $100,000 - $150,000 for a litigation guardian and $70,000 - $90,000 for the estate^[62]. Even if, as is likely and as Ms McElligott suggests, these are excessive estimates, there is likely to be a significant further impact on a modest estate, by the cost incurred in respect of any maintenance application that is allowed to proceed. It must also be noted that this is a case where there are other needy beneficiaries of that modest estate.

Consideration

45. [45]
    Considered separately, that aspect of the Executor’s contentions, which focus on the merits of the purported application for maintenance, attracts an onus of demonstrating that the application should not be allowed to proceed. In Higgins v Higgins^[63] and after identifying the power of the court to summarily dismiss an application for maintenance, White J observed:

“The often quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions from the authorities his Honour said at 129:

‘As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court ... the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’”

46. [46]
    In Higgins and other instances where such an intervention has occurred or been considered^[64], such principles have been applied, to what is described as the first (or jurisdictional) stage of the test to be applied to such applications, in accordance with the decisions of the High Court in Singer v Berghouse^[65] and Vigolo v Bostin^[66] and therefore as to the prospects of a determination that an applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life.  As described in Singer^[67], that question involves the making of a form of value judgment in the sense that:

“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was adequate 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.”

47. [47]
    Often an application, such as is made by the Executor here, will turn on the assessment as to whether or not the application for maintenance is bound to fail, on an assessment of the application of this test. The touchstone or requirement of futility, in the sense of the application being bound to fail, is a more preferable approach to the circumstances of this case, rather than an alternative inclination in some instances, to assess whether the applicant for maintenance^[68] has made out a prima face case or a triable issue^[69].

48. [48]
    However and in this instance, there is a discrete issue that arises before any need to consider the value laden issue as to whether adequate provision has been made from the estate and that is as to whether there is any entitlement for the application and that is as to whether either or both of the children may be considered as a “dependant” of the deceased, within the meaning of the definition in s 40 of the Succession Act 1981.

49. [49]
    The approach of Mullins J, to the meaning of the phrase “substantially maintained or supported” in Lohse v Lewis & Anor^[70], has already been noted above.^[71]  However reference to Her Honour’s reasons demonstrate that after referring to the following passage from Williams v Aucutt^[72]:

“The test is whether adequate provision has been made for the proper maintenance and support of the claimant.  ‘Support’ is an additional and wider term than ‘maintenance’.  In using the composite expression, and requiring ‘proper’ maintenance and support, the legislation recognises a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty.  ‘Support’ is used in its wider dictionary sense of ‘sustaining, providing comfort’.  A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased.  Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case.  It may take the form of lifetime gifts or a request of family possessions precious to its members and often part of the family history.  And where there is no economic need it may also be met by a legacy of a moderate amount.  On the other hand, where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provisions so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.”;

Her Honour then observed:

“Although I accept that the word ‘support’ is a wider concept than ‘maintenance’, the type of support that was the subject of the decision in Williams has no relevance to the applicant’s claim in this matter.

The phrase ‘wholly or substantially maintained or supported (otherwise than for valuable consideration) by that deceased person at the time of the person’s death’ has to be construed in the context of prescribing the condition precedent that the applicant, as a de facto spouse, must establish in order to obtain relief as a dependant at the date of the deceased’s death. It would make a nonsense of the requirement, if the word ‘substantially’ did not take its meaning from the context given by the use of the word ‘wholly’. The word ‘wholly’ is unambiguous. The word ‘substantially’ indicates something less than ‘wholly’, but it connotes something which is still significant. It could not possibly mean in that context ‘not merely nominal, ephemeral or minimal’. It could in this context be appropriately paraphrased by the words ‘in the main’ or ‘as to the greater part’: cf Department of Social Security v Wetter [1993] FCA 17; (1993) 40 FCR 22, 30. In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522, the future arrangements that had been planned between the parties and for which provision was made must also be taken into account.”

50. [50]
    Conceivably, this case could entail considerations of the kind referred to by Richardson P. However the position clearly is one where and whilst there is evidence of the sharing of responsibilities for the care of the children, as between Ms McElligott and the deceased, at least prior to any significant illness leading to her death and evidence of substantial plans to move to a similar arrangement at a residence being built from the resources of the deceased, it is quite impossible to separate the benefit of this to the children from the concomitant benefit to their mother and daughter of the deceased.

51. [51]
    Further and to the extent to which Ms McElligott seeks to rely upon the existence of the ineffective cl 6 in the will of the deceased and other evidence as to the future plans for the residence of the children in the property being developed by the deceased at the time of her death, this also cannot be disentangled from the interests of Ms McElligott. That clause was in the following terms:

“6. Interest in Property

I GIVE my house and land at 186 COLLINS ROAD NINDERRY QLD together with all my household furniture and household effects (other than motor vehicles) therein at my death (“the property”) TO my Trustee ON TRUST to permit my granddaughter TAKARLI JOY MCELLIGOTT and my grandson TARSON JAMES MCELLIGOTT both presently living at the property to have the full use of my property for a period of five years from my death TOGETHER with the full use of my household furniture and household effects as a personal right.

During the period of this interest they are required to:-

1. (a)
   keep the property in a state of repair to the satisfaction of my Trustee

2. (b)
   insure the part(s) of the property which must (in the sole discretion of my Trustee) be insured against loss or damage or other insurable risk

3. (c)
   pay all rates taxes insurance premiums and other periodical outgoings payable on the property.

The income actually produced by the property is to be applied as income under my Will.

ON the failure or termination of this life interest my Trustee is to hold the property ON TRUST to form part of the residue of my estate.”

52. [52]
    At the time of her death the children were aged respectively about five and two years and their primary carer was their mother. As found by McMurdo J^[73], the evident intention of the deceased was that the property would be the home of Ms McElligott and her children for a period of five years after her death.  It can be further noted that His Honour found, as the reason for cl 6 of the will:

“…It was because Lorain was about to become, or had become, bankrupt.  Mrs McElligott wanted to provide Lorain and her children with the security of at least being able to live on this property during Lorain’s bankruptcy.  Mrs McElligott also intended that the property might be used for some commercial return, whilst Lorain and her children lived there.  She believed that this will, and in particular cl 6, would provide that secure residence and an opportunity for some income to be derived from the property.”^[74]

53. [53]
    Otherwise and as has been noted, Ms McElligott’s position under the will was the same as her siblings, in being left an equal share of the residuary estate, which in the prevailing circumstances included the proceeds of the sale of the Ninderry property. However and as also determined by McMurdo J and because of her bankruptcy, that entitlement will be vested in the official trustee in bankruptcy.^[75] Further and as matters stand, the position of these grandchildren of the deceased, is no different to those of her other grandchildren, although the circumstances and needs of those other grandchildren may be different.^[76]

54. [54]
    The approach taken in McEwan Shaw & Anor v Shaw^[77] and more particularly in the New South Wales cases, to which reference was there made, is clearly germane to the discrete issue, as it arises under the Queensland legislation and even more so because the issue of dependency is treated separately from the assessment of adequacy of testamentary provision and as a condition precedent to an entitlement.

55. [55]
    Notwithstanding that for s 40 of the Succession Act 1981, substantial rather than whole maintenance or support may suffice, as a matter of the application of this requirement in the context of prevailing community standards and in the context of the provision being a condition precedent to the application of a test which was described by Gleeson CJ in Vigolo v Bostin,^[78] as requiring a value judgment based on considerations of moral claims and moral duty, a requirement of directness of such dependency should be recognized. The indirectness of any maintenance or support, such as is evident here and implicit in an arrangement where the children remained in the care of their ordinary primary caregiver, their mother and who otherwise herself provided substantially for their maintenance or support, means that it should be concluded that any such maintenance or support, as was provided by the deceased for the care of the children, was provided as much to and for the benefit of their mother and is therefore most unlikely to satisfy the requirements of s 40. It can also be noted that such a conclusion is consistent with the approach taken in Lohse v Lewis & Anor^[79], in that substantial maintenance or support, requires something that may be described as being “in the main” or “as to the greater part”.

56. [56]
    It should therefore be concluded that the purported claim for maintenance for these children is, at the least, most unlikely to succeed, if not doomed to fail. However, it is unnecessary to be more categorical for the reasons to follow.

57. [57]
    Whilst the Executor is by his application, the moving party, a fundamental obstacle to the pursuit of the maintenance application for the children, is the necessity for the direction or leave of the court for it to proceed, pursuant to s 41(8) of the Succession Act 1981. An unfettered discretion is to be exercised and relevant considerations include not only any adequate explanation for delay but also an assessment of the merit or prospects of success of the application and whether there will be prejudice to other beneficiaries. An important point is that this being a substantive rather than merely procedural time limit, there is an onus on an applicant to establish sufficient grounds for such a direction^[80].

58. [58]
    First it can be noted that because the estate has not been distributed, there is no obstacle to the maintenance application proceeding and therefore to the granting of such a direction.^[81] However, it can be noted that this consideration and reference to the protections afforded to a personal representative, under s 44 of the Succession Act and in respect of the distribution of an estate, serve to underscore an importance placed, in this legislative context, upon the time limit upon bringing such a maintenance application and the need for an applicant who seeks, where it is possible to do so, a direction to proceed with an application which is out of time, to demonstrate substantial grounds for being so allowed.

59. [59]
    Here such an application would necessarily be decided from the perspective of the applicants effectively being the children but the intermingling of Ms McElligott’s interests, means that considerations as to her conduct may not be irrelevant. For instance the considerations in respect of delay necessarily involve her conduct, but in that regard, Ms McElligott also points to the limitations upon her ability to have brought an application on behalf of the children, due to her bankruptcy.^[82]

60. [60]
    Although Ms McElligott claims^[83] that the Executor was notified a number of times, commencing within a month of her mother’s death, of an intention to make an application for maintenance for the children, she otherwise seeks to explain that up until 24 March 2014, she has been concerned with legal proceedings in respect of the entitlements of her children and herself under the will.

61. [61]
    The antecedent litigation is a complication but perhaps not a particularly convincing explanation for delay in respect of the maintenance application, which was first filed on 21 March 2014 and therefore some 18 months after the death of the deceased and 9 months past the period of limitation provided in s 41(8) of the Succession Act 1981. 

62. [62]
    The potential impact on the estate, if the maintenance application was allowed to proceed, is not an aspect of prejudice of the kind which was so apparently critical to the outcome in Curran. However those considerations do serve to underline the critical consideration as to the assessment of the prospects of the purported application for maintenance. It necessarily remains a purported application because of the remaining necessity to deal with the procedural shortcomings and in particular the appointment of a litigation guardian and as has already been noted, the related application made by Ms McElligott, in that regard, itself necessitates particular consideration of the prospects of the maintenance application.

63. [63]
    Although the issues come before the court in the manner and context which has already been explained, the maintenance application could only be permitted to proceed if a litigation guardian for the children demonstrated that there were sufficient grounds for a direction or leave to do so under s 41(8). The absence of any significant prospect of success in any such application stands as an obvious bar to any such direction.

64. [64]
    Even if the conclusion which has been expressed as to the prospects of satisfying the definition of dependency in s 40 is an inappropriate conclusion, similar considerations would also necessarily apply to the application of s 41(1A) of the Succession Act 1981. Whilst it must be recognised that if this was the only issue on this purported application, in the sense that dependency was otherwise established, the prospective outcome is less clear. However, it may still be concluded, on that basis, that the circumstances are such as to present an absence of reasonable prospects of any successful application.

65. [65]
    Accordingly, it suffices to conclude that the Executor has sufficiently demonstrated the futility of the purported maintenance application, in the sense that there is such an absence of prospect of success, so as to enable the giving of a direction under s 41(8) of the Succession Act 1981 and to enable the hearing of such an application.

66. [66]
    It therefore follows that:

1. (a)
   in matter No. 52/14 the interlocutory application of the Executor should be allowed and the originating application for maintenance should be dismissed pursuant to UCPR 658; and

2. (b)
   the originating application in matter No. 70/14 (for the appointment of a litigation guardian) becomes otiose and should also be dismissed pursuant to UCPR 658, again on the interlocutory application made by the Executor.

67. [67]
    In that event, the Executor seeks that there be an order for costs in his favour and against Ms McElligott. As has been noted above:

1. (a)
   each of the originating applications were filed by Ms McElligott; and

2. (b)
   the application for the appointment of a litigation guardian and which was effectively brought by Ms McElligott in her own right, was only necessary in order to seek to regularize the maintenance application, in circumstances where there was someone who was able to and prepared to act as a litigation guardian, with the usual exposure to potential adverse costs implications.

Moreover and as identified in these reasons, both originating applications failed, due to a fundamental absence of sufficiency of prospect of success in respect of the maintenance application (as well as procedural incompetence or irregularity).

68. [68]
    In these circumstances it should not be concluded that the costs incurred by the Executor in vindicating his position, should simply be left to fall on the estate. The reality is that would have effectively no personal impact upon Ms McElligott but the same cannot be said in respect of the other beneficiaries. The outcome here is of a kind which would ordinarily have enlivened consideration of an order that the moving party pay the Executor’s costs and here the obvious closeness of Ms McElligott’s personal interest with those of her children only serves to reinforce that conclusion.

69. [69]
    As the Executor has submitted such an order against Ms McElligott may not be futile, in the sense that notwithstanding her present status as a bankrupt, that may not prevent recovery in respect of any order that is made at some future stage, should that be pursued. Accordingly there will be orders that Ms McElligott pay the costs of the Executor.

Orders

70. [70]
    Therefore the orders are that:

1. 1.
   The application filed by the Executor in No. 52/14, on 5 May 2014, is allowed.
2. 2.
   The originating application filed as No. 52/14, is dismissed.
3. 3.
   The application filed by the Executor in No. 70/14, on 5 May 2014, is allowed.
4. 4.
   The originating application, filed as No. 70/14, is dismissed.
5. 5.
   Lorain Ronda McElligott is to pay the costs of the Executor of both originating applications (No. 52/14 and No. 70/14), including the costs of the Executor’s application in each proceeding, as agreed or to be assessed on the standard basis.