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Smith v The Public Trustee of Queensland[2015] QDC 299

Smith v The Public Trustee of Queensland[2015] QDC 299



Smith v The Public Trustee of Queensland [2015] QDC 299













1 December 2015 (at Maroochydore)


27 November 2015 (on the papers at Bundaberg)


Long SC, DCJ



  1. Pursuant to S.41(1) of the Succession Act 1981 (Qld), adequate provision be made for the proper maintenance and support of the Applicant out of the estate of Patricia Dawn Smith (“the deceased”), by reading and construing the last Will of the deceased dated 17 October 2012 (“the Will”) as if clause 7 of the Will was deleted and in lieu the following substituted:-

“7.  Disposal of my Estate

My Trustee shall distribute the whole of my estate as follows:

  1. 01
    The sum of $20,000 to the ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS QLD INC ABN 74 851 544 037 of 139 Wacol Station Road, Wacol Brisbane in the said State for the general purposes thereof.
  1. 02
    The sum of $20,000 to the GUIDE DOGS FOR THE BLIND ASSOCIATION OF QUEENSLAND for the charitable purposes of the said Association.
  1. 03
    The sum of $20,000 to CANCER COUNCIL QUEENSLAND ABN 48 321 126 727 of 553 Gregory Terrace Fortitude Valley in the state of Queensland to be applied preferably for melanoma research projects sponsored by the Cancer Council Queensland or otherwise for its general charitable purposes.
  1. 04
    The residue of my estate to my husband JAMES THOMAS SMITH.”
  1. No legacy interest is payable under section 52(1)(e) of the Succession Act 1981.
  1. The Respondent’s costs of and incidental to these proceedings be paid from the deceased’s estate on the indemnity basis.


SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY SPOUSE OR PARTNER – where the applicant was married to the deceased for 38 years – where the deceased made no provision for the applicant in the deceased’s will – where the value of the estate and applicant’s financial circumstances are modest – whether the proposal of the parties as to making adequate provision for proper maintenance and support of the applicant out of the deceased’s estate, is appropriate


District Court Act 1967 (Qld), s 68(1)

Succession Act 1981 (Qld), s 41(1), 41(8)

Uniform Civil Procedure Rules 1999 (Qld), Chapter 13, Part 6.


Affoo v Public Trustee of Queensland [2011] QSC 309

Bartlett v Coomber [2008] NSWCA 100

Collett v Knox [2010] QSC 132 at [133]

Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437 at [50] – [63]

Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 and 70

Re Bradbury [1947] St R Qd 171

Serle v Walsh & Ors [2006] QSC 377 at [47]-[53]

Vigolo v Bostin (2005) 221 CLR 191

Watts v Public Trustee (as executor of the estate of Neta May Bruigom) [2010] QSC 410


Official Solicitor to the Public Trustee on behalf of the respondent.


  1. [1]
    The originating application in this matter is brought pursuant to s 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 do so, pursuant to s 68(1)(b)(x) of the District Court Act 1967 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.
  1. [2]
    The further application, filed by the respondent (Executor) on 11 November 2015, is for final orders to be made, in consideration of the mediated settlement of the issues as between the parties. It is further requested that the hearing and determination of the matter be on the papers, in order to minimise the costs implications upon a modest estate. In the following circumstances, and as there has been compliance with Chapter 13, Part 6 of the Uniform Civil Procedure Rules, it is appropriate to do so.
  1. [3]
    As far as may be relevant to the circumstances of this case, the basis upon which an order under s 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.
  1. [4]
    The applicant is 61 years of age and at the time of the death of the deceased, on 29 December 2012,[1]he had been married to the deceased for approximately 38 years and it is common ground that:
  1. (a)
    neither party had any significant assets when they married;
  1. (b)
    during the marriage, the applicant was the primary income earner and the deceased mainly performed a role of home maker; and
  1. (c)
    there are no children of the marriage.
  1. [5]
    The executor acts pursuant to an order to administer, dated 15 May 2013.[2]Pursuant to the will, made on 17 October 2012, no provision is made for the applicant and rather and pursuant to clause 7 of the will, the estate is to be distributed as to a one third share to each of:
  1. (a)
    The Royal Society for Prevention of Cruelty to Animals Qld Inc. ABN 74 851 544 037 (for the general purposes thereof);
  1. (b)
    The Guide Dogs for the Blind Association of Queensland (for the charitable purposes of that Association); and
  1. (c)
    The Cancer Council Queensland ABN 48 321 126 727 (to be applied preferably for melanoma research projects sponsored by the Council or otherwise, its general charitable purposes).
  1. [6]
    The current estimate of the value of the estate, allowing for estimated costs to finalisation of this matter and the administration, is $141,273.83.[3]The substantial asset of the estate is a half share, held as tenant in common in the former matrimonial residence, at 8 Dickinson Street, Burnett Heads. That half share is valued at $132,500.
  1. [7]
    Whilst the filed material indicates that there are some substantial conflicts in the evidence as to the extent to which there had been breakdown in the marriage and the extent to which the applicant supported the deceased in her terminal illness, it is common ground that there had been some separation, under the one roof and that the applicant and deceased had for many years occupied separate bedrooms and that there had, in the past, been an allegation raised (which he denied), of the applicant being involved with another woman. Further and whilst there is no elaboration of the earlier circumstances relating to the severance of the joint tenancy, and as some indication of the situation shortly prior to her death, the applicant notes the following:

“24. I believe that in around November 2012, Patricia consulted with a solicitor for the purpose of unilaterally severing the joint tenancy that subsisted in relation to our property at 8 Dickinson Street, Burnett Heads. I received a letter from Patricia’s solicitor dated 29 November 2012 and a copy of that letter is annexure ‘JTS-3’ to this affidavit. The transfer that Patricia’s solicitor had prepared was never registered as the joint tenancy had previously been severed in around May 2000. The property is now currently held in our names as tenant in common in equal shares.”[4]

  1. [8]
    Although there is some lack of clarity to it, it may be concluded that the applicant’s financial circumstances are modest. In the affidavit he filed with the originating application, he refers to a long working history as a truck driver but from which he had retired. He then stated that his net assets total $274,000 including the half share in the property at 8 Dickson Street, Burnett Heads (valued at $132,500). That summary also included a boat valued at $10,000 and two motor vehicles valued, in total, at $21,500 and $110,000 in a bank account. In a subsequent affidavit[5]the applicant refers to having purchased a business for $48,000 plus legal and other costs and that he then had a bank balance of $68 and a credit card liability of $7,868. He also asserted that the business was not trading well, but remains his only source of income.
  1. [9]
    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[6], 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”.
  1. [10]
    Although it is a matter to be decided according to the particular circumstances of individual cases, the Executor referred to Luciano v Rosenblum[7]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”.

  1. [11]
    That approach has been applied in Queensland, for instance and albeit cautiously, in Collett v Knox.[8]However, it is an approach that has not avoided criticism, as noted in Serle v Walsh & Ors,[9]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.”

  1. [12]
    Whilst that observation is not of particular assistance to the circumstances of this case and notwithstanding the general charitable purposes and /or public benefit pursued by the beneficiaries under the will, the apparent weight of the applicant’s claim may be seen in the longstanding relationship (even if there was some degree of separation in the same house)[10]and his connection and contribution to the significant asset of the estate, in the form of the divided share of the matrimonial residence.
  1. [13]
    Further, the position of the parties, including the beneficiaries under the will, has been resolved into written terms of settlement, as a consequence of a conference held on 27 July 2015 and which propose, in effect, that provision be made out of the estate for the applicant by leaving him with the residue of the estate after each of the beneficiaries are given $20,000 and that apart for the costs of the Executor, which are to come from the estate on the indemnity basis, the other parties are to bear their own costs of these proceedings.
  1. [14]
    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 proposed 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.[11]
  1. [15]
    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 him. In these circumstances and particularly where the estate is modest and likely to be significantly, if not substantially, consumed by the costs of further litigation, the agreement reached by the parties should be effected by the court.
  1. [16]
    The orders will be in accordance with the provided draft, which I have initialled and will place with the papers.


[1]  The originating application was filed on 25/9/13 and therefore in accordance with the time limitation provided in s 41(8) of the Succession Act 1981.

[2]  Exhibit SFJ-2 to the affidavit of S J Forster, filed 4/2/14.

[3]  Affidavit of L F Blackburne, filed 11/11/15 at [2]-[5].

[4]  Affidavit of J T Smith, filed 25/9/13, at [24].

[5]  In the applicant’s affidavit filed 18/7/14.

[6]  (2005) 221 CLR 191.

[7]  (1985) 2 NSWLR 65 at 69 and 70.

[8]  [2010] QSC 132 at [133].

[9]  [2006] QSC 377 at [47]-[53].

[10]  Cf: Re Bradbury [1947] St R Qd 171 and Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437, at [50] – [63].

[11]  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.


Editorial Notes

  • Published Case Name:

    Smith v The Public Trustee of Queensland

  • Shortened Case Name:

    Smith v The Public Trustee of Queensland

  • MNC:

    [2015] QDC 299

  • Court:


  • Judge(s):

    Long DCJ

  • Date:

    01 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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