Kopp v Wright[2015] QDC 298

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT OF QUEENSLAND

CIVIL JURISDICTION

JUDGE LONG SC

No 127 of 2015

NOLA MARY KOPPApplicant

and

DEBRA MAREE WRIGHTRespondent

MAROOCHYDORE

11.24 AM, FRIDAY, 6 NOVEMBER 2015

JUDGMENT

Any Rulings that may be included in this transcript may be extracted and subject to revision by the Presiding Judge.

HIS HONOUR:   This is an application brought pursuant to sub-section 41(1) of the Succession Act 1981, for adequate provision to be made for the proper maintenance and support of the applicant spouse, from the estate of the deceased. Such an order may only be made in the discretion of the Court, this Court having jurisdiction to so order, pursuant to section 68(1)(b)(x) of the District Court Act 1976 and because, as is further noted in the reasons to follow, the applicant is not seeking to be awarded provision from the estate with a value that exceeds $750,000.

As far as may be relevant to the circumstances of this case, the basis upon which an order under sub-section 41(1) may be made is, in the first instance, that adequate provision is not made from the estate, for the proper maintenance and support of the deceased person’s spouse or child or dependant and, secondly, an exercise of discretion to make proper provision out of the estate for such a person.

The applicant is aged 80 years and is the widow of the deceased, who died on 23 June 2015. The application was filed on 14 September 2015 and therefore within the requirements of sus-section 41(8) of the Succession Act 1981.

The applicant and deceased were married for more than 24 years and for most of that period lived together in the residence at 31 Kamala Street, Battery Hill, Caloundra (“the matrimonial home”) and as to which the deceased was the sole registered proprietor.

Prior to that marriage the deceased was first married to the applicant’s sister until her death and the respondent (as an adopted child) is the only child of that first marriage and also the deceased’s only child.

It is common ground, despite the absence of a grant of probate to date, that the last Will of the deceased left his whole estate (with assets comprised by the matrimonial home and a very limited amount of cash) to the respondent and made no provision for the applicant. It may be noted that pursuant to sub-section 41(8), the Court may hear and determine such an application although such a grant has not been made.

This application has been subject to a mediation held on 15 October 2015, which also included Karyn Ann Al Suhaini, she being the only biological child of the applicant and the only stepchild of the deceased and on the material, the only other prospective applicant pursuant to section 41 of the Succession Act 1981 and in respect of this deceased estate. The result was an agreement encapsulated in a deed of settlement, made on that day and a copy of which is exhibit GML1 to the affidavit of Geoffrey Michael Lyons filed on 26 October 2015.

The settlement deed has the practical effect, if adopted into final orders made by this Court, that in return for the applicant paying the respondent the sum of $166,000, the applicant is to become the sole owner of the matrimonial home and the remainder of the estate which is of, at best, negligible value, is to be received by the respondent. Further, the applicant’s daughter, Karyn Ann Al Suhaini, relinquishes any claim that she might otherwise have had against the estate, under section 41 of the Succession Act 1981 and the respondent relinquishes any future claim she may have against the applicant’s estate under that legislation. Save for noting that there are other more technical provisions, including in relation to responsibility in respect of any transfer duty and taxation liability, it is only necessary to note that the agreement would only become effective after both the order of this Court and a grant of probate being made to the executor and the applicant becoming the registered owner of the matrimonial home free from encumbrances. Accordingly and subject to the other necessary considerations, the absence of a grant of probate at this time, does not present as any impediment to the orders sought in the Court.

It may be noted that in the absence of the orders sought to reflect the agreement reached between the parties and on the material filed in this Court:

1. (a)
   the respondent is presently 55 years of age and married to a man aged 60. They have no children. They each have a number of health complaints and receive income by way of a combined fortnightly payment from Centrelink of approximately $1080. Her net asset position (represented by superannuation, furniture, motor vehicles and cash less a liability in the form of a personal loan) is stated as $87,300;
2. (b)
   in her affidavit filed on 14 September 2015, the applicant estimated her net worth (as represented by assets in the nature of various bank deposits, shares and household chattels) as $263,159. Her income by way of interest on bank accounts, dividends and an aged pension was stated as $648.40 per fortnight but is being exhausted by her expenses in relation to things such as rates, insurance and living expenses. She described herself as being, apart from suffering emphysema, in particularly good health for her age; and
3. (c)
   the net value of the estate as at 30 October 2015, is stated by the executor to be $455,573.44, ascribing a value to the matrimonial property of $460,000.

Accordingly, it may be seen that there is a basis for making this application pursuant to the legislation allowing for it, in the context of the approach to legislation of this kind and where, as in cases such as Vigolo v Bostin (2005) 221 CLR 191, there are statements which support the underlying basis or justification for the court making orders of this kind, as being “in terms of familial obligation not unnaturally or inappropriately described as moral” and by resort to the concepts of “moral duty” and “moral claim”, This may be seen as particularly lying in the understanding that the effect of the Will would be to exclude the applicant from the benefit of continued residence in the matrimonial home.

Although it is a matter to be decided according to the particular circumstances of individual cases, including those of any competing claimant, the applicant referred to Luciano v Rosenblum [1985] 2 NSWLR 65 at 69 and 70 and where it was recognised as a “broad general rule” that the duty of a testator to his widow is, the extent to which his assets permit him to do so:

“to ensure that she is secure in her home with an income sufficient to permit her to live in a style to which she is accustomed and with a fund to enable her to meet any unforeseen contingencies”.

That approach has been applied in Queensland, for instance and albeit cautiously, in Collett v Knox [2010] QSC 132 at [133]. However, it is an approach that has not avoided criticism, as noted in Serle v Walsh & Ors [2006] QSC 377 at [47]-[53], particularly in terms of the preconception involved and tendency to invite departure from the statutory requirements. However and as was expressly recognised in Serle at [46],

“looking at matters in the abstract, it may be thought that the moral claims of a longstanding spouse are likely to be superior of those of an adult child, particularly where, as is the case here, the spouse has lost the right to reside in the matrimonial home.” 

Here, the applicant is an elderly woman, who would now not only have to seek an alternative residence but be left with apparently inadequate resources to reasonably do so.

Further, it can be noted that although there is a discretion to be exercised by the Court, once, as is the case here, the qualifying requirements for making an application, under section 41 are satisfied and there is material indicating an apparent basis for the application and the orders sought, then the compromise of the parties is a significant factor. This is particularly where, as here, all beneficiaries of the estate and other potential applicants pursuant to section 41, are sui juris and have been active participants in the mediated resolution. Generally and in the absence of any concern as to any failure to effect specific legislative policy or some other public policy or any concern as to abuse of process, it can be expected that a compromise of the relevant parties, in such circumstances, will be given effect. 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.

It is therefore not necessary to discuss the evidence in any further detail. As is apparent from what has been discussed, there was a basis for the application and the position resolved by the parties necessarily implies that there is now a sufficient acceptance of or at least insufficient disputation about the situation, to allow a conclusion that adequate provision has not been made for the proper maintenance and support of the applicant and that provisions should be made out of the estate for her.In these circumstances the agreement reached by the parties should be effected by the court.

The orders will be in accordance with the amended draft (with that single amendment that I indicated) which I have initialled and will place with the papers.

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