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- Unreported Judgment
Wilson v The Public Trustee of Queensland QDC 228
DISTRICT COURT OF QUEENSLAND
Wilson v The Public Trustee of Queensland  QDC 228
PUBLIC TRUSTEE OF QUEENSLAND (AS ADMINISTRATOR OF THE ESTATE OF STEPHANY KIM LEATHER, DECEASED)
District Court at Ipswich
25 August 2017 (orders)
11 September 2017 (reasons)
25 August 2017 (on the papers)
Lynch QC DCJ
I GIVE to my nephew CHRISTOPHER JOSEPH LEATHER the sum of $70,000.00 absolutely.
SUCCESSION – FAMILY PROVISION – application by spouse under s 41 Succession Act 1981 (Qld) for provision from estate of spouse – need for court order to finalise proceedings – significance of agreement between the parties as to orders – orders made on the papers
Acts Interpretation Act 1954, s 32DA
Succession Act 1981, s 5AA, s 41
Uniform Civil Procedure Rules 1999, r 490
Affoo & Anor v Public Trustee of Queensland  1 Qd R 408
Arrowsmith v Micallef & Ors  2 Qd R 208
Blore v Lang (1960) 104 CLR 124
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Watts v The Public Trustee of Queensland  QSC 410
McNamara & Associates for the applicant
Official Solicitor to the Public Trustee of Queensland for the respondent
- This is an application pursuant to s 41 of the Succession Act1981 (the Act) for further and better provision for the proper maintenance and support of the applicant Steven Wilson out of the estate of the deceased Stephany Kim Leather.
- The applicant also proposes, by notice pursuant to Rule 490 of the Uniform Civil Procedure Rules1999, that the application be decided without an oral hearing.
- It is appropriate to make the orders sought for the reasons set out below.
- The applicant, Steven Wilson, was the de facto partner of the deceased, Stephany Kim Leather, at the time of her death on 14 November 2015. The two had lived together in that relationship since some time in 2006. The deceased did not have any children or financial dependants. At the time of her death the deceased was aged 59 years. The applicant is now aged 62 years.
- The deceased’s will, dated 13 April 2010, appointed the respondent as executor and trustee of her estate. The respondent was granted an Order to Administer by the Supreme Court of Queensland on 15 March 2016.
- The will also includes terms to the following effect:
Clause 6: Specific bequest to the deceased’s nephew Christopher Leather in the amount of $8,000.00.
Clause 7: Provides the applicant with a life tenancy in the deceased’s property at 8 Huntington Drive, Regency Downs. On failure of the life interest the executor is to hold the property on trust for the deceased’s nephew Christopher Leather.
Clause 8:Gives the residuary estate to the applicant.
Clause 9:Gives the residuary estate to Christopher Leather if clause 8 should fail.
- The deceased’s superannuation benefit, in the amount of $41,707.61, was paid directly to the applicant as the nominated beneficiary.
- The principal asset in the estate is the residence at 8 Huntington Drive, Regency Downs; which has been valued as having a market value of $320,000. The estimated total value of the assets is $321,237 and the estimated total value of liabilities is $14,320.69. In addition, the respondent estimates its legal costs and outlays at $55,000.00 and the Official Solicitor to the Public Trustee estimates his legal costs and outlays to finalise the estate as in the range of $1,500.00 to $2,500.00.
- The applicant has two adult children from a previous relationship, neither of whom is financially dependent upon him. The applicant is in receipt of a disability support pension of $823.90 per fortnight. He suffers from spinal and cervical stenosis and is medicated daily for pain management. The applicant is also a type 2 diabetic and insulin dependent. His medical conditions are unlikely to improve.
- The applicant deposes that he and the deceased commenced living together from his release from prison in 2006. Thereafter they resided together at the deceased’s residence at Daisy Hill before purchasing the property at Regency Downs where they built a house. The applicant deposes that he contributed to mortgage repayments and the repair, maintenance and improvement of both properties. The applicant has assets of approximately $29,000 in value and liabilities valued at about $28,000. The applicant has a bank balance of approximately $9,000.
- The applicant has limited means, no capacity to be employed, and limited savings, superannuation and assets. The applicant deposes to the effect that he is unable to meet the ongoing financial requirements to remain living at the property; including payment of the mortgage, rates, utilities, general living expenses, etc. The applicant therefore claims he was not adequately provided for under the terms of the will.
- The originating application was filed on 12 August 2016. Mediation of the applicant’s claim was held on 7 June 2017. At that time the applicant, the respondent and the deceased’s adult nephew Christopher Leather, agreed to terms to compromise the proceedings. The proposed terms were reduced to writing and signed by the applicant, respondent and Christopher Leather. The agreement includes proposed terms to the following effect:
- The will is to be construed as deleting clauses 6 and 7 and inserting a new clause 6 making a specific bequest to Christopher Leather of $70,000.00.
- The applicant will deliver vacant possession of the Regency Downs property to the respondent on or before 24 July 2017.
- The applicant will deliver certain listed items of property to Christopher Leather and forego any claim to itemised property.
- Christopher Leather is to be paid his legacy within 14 days of the completion of the sale of the property, with interest if not paid within that time.
- The applicant will bear his own costs of and incidental to these proceedings.
- The respondent’s costs of and incidental to these proceedings will be paid from the estate on an indemnity basis.
- The applicant will promptly initiate proceedings to give effect to the agreement and the respondent and Christopher Leather will do all things necessary to support that application.
- The applicant filed an application on 4 August 2017 seeking orders consistent with the agreement. That application also proposed that it be determined without an oral hearing. The applicant submits that he was not adequately provided for in the deceased’s will. The applicant submits that he does not have the means to meet the ongoing costs of his remaining living at the property and his ability to earn income is unlikely to improve. The applicant submits the agreement reached should be respected in the court’s determination of the application. The applicant submits the terms of the agreement are such that will enable him to fund alternative accommodation, meet his ongoing medical needs, and provide a buffer for future financial contingencies.
- The respondent acknowledges the applicant’s right to apply pursuant to s 41 of the Act, by reason of his de facto relationship with the deceased. The respondent also acknowledges the participation of Christopher Leather in the mediation on 7 June 2017 and his agreement to the terms of settlement then reached. The respondent submits the court should make orders in terms of that agreement.
- Section 41 of the Act relevantly provides:
41Estate of deceased person liable for maintenance
- (1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.
(1A)However, the court shall not make an order in respect of a dependant unless it is satisfied, 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, that it is proper that some provision should be made for the dependant.
- (2)The court may—
- (a)attach such conditions to the order as it thinks fit; or
- (b)if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
- (c)refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
- Section 5AA of the Act provides the term “spouse” includes:
5AAWho is a person’s spouse
- (1)Generally, a person’s spouse is the person’s—
- (a)husband or wife; or
- (b)de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or
- The definition of the term “de facto partner” in s 32DA of the Acts Interpretation Act1954 includes the following:
32DAMeaning of de facto partner
- (1)In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
- (2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—
- (a)the nature and extent of their common residence;
- (b)the length of their relationship;
- (c)whether or not a sexual relationship exists or existed;
- (d)the degree of financial dependence or interdependence, and any arrangement for financial support;
- (e)their ownership, use and acquisition of property;
- (f)the degree of mutual commitment to a shared life, including the care and support of each other;
- (g)the care and support of children;
- (h)the performance of household tasks;
- (i)the reputation and public aspects of their relationship.
- Determination of a claim for maintenance is to be made in accordance with the test identified by the High Court in Singer v Berghouseas follows:
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant.”
- This test was further explained in Singer v Berghouse:
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate 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.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”
- Although the test formulated in Singer v Berghouserelated to New South Wales legislation, in Vigolo v Bostin, Callinan and Heydon JJ acknowledged equivalent legislation Australia wide, including the Succession Act.In Arrowsmith v Micallef & Ors,this test was held to apply to exercise of the discretion conferred by s 41 of the Act.
- As to the proper approach to determining any amount to be allowed for the proper maintenance and support of an applicant, in Blore v Lang,it was said:
“The jurisdiction conferred by the Act is to interfere with the testator's dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc., and the extent of the interference authorized is to order such provision as the court thinks fit for that person's proper maintenance. … The measure to be applied is not what has been given to the one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator's Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator's moral duty to make adequate provision for the proper maintenance of his family - not for the making of what may appear to the court to be a fair distribution of a deceased person's estate among the members of his family.”
- Section 41 of the Act requires the court to exercise a discretion. Therefore, an application cannot be resolved by the agreement of the parties. In Afoo & Anor v Public Trustee of Queensland,Dalton J said:
“The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed.The rule has its origins in the policy that a person cannot by contract exclude the jurisdiction of the Court to make a family provision order.When parties to a family provision application make an agreement as to the final orders they believe ought to be made in the proceeding, a court will have regard to that agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of its discretion. Accordingly, whatever the terms of the agreement reached at mediation in this case, it could not dispose of the family provision application made by Mr Blair; an order of this Court was required to do that.”(Citations removed.)
- In Watts v The Public Trustee of Queensland,Jones J made similar comment as follows:
“Once the court is of the view that the jurisdictional question has been satisfied then the issue arises as to the effect of the parties’ agreement. Obviously considerable weight must be given to the agreement of the parties. The inquiry thereafter is limited. The circumstances would be unusual indeed for the court to override the agreement of the parties who are of full age and where there is no evidence of undue influences at work in the reaching of the agreement.”
- The applicant’s circumstances require that he have access to adequate accommodation, an ability to manage his own medical problems, and meet the future contingencies of life. Whilst the will allows the applicant a life tenancy in the property, the applicant’s parlous financial state means he will be unable to enjoy that tenancy and meet the resulting ongoing financial commitments. Under the terms of the will, failure of the tenancy would result in interest in the property transferring to Christopher Leather; without further provision for the applicant.
- The applicant and deceased lived together in a de facto relationship for over 10 years prior to her death. The applicant contributed significantly to the construction, maintenance and improvement of the property at Regency Downs. This property is the only real asset of the estate. It is unlikely the applicant’s circumstances will change for the better.
- In the circumstances, I am satisfied the applicant has demonstrated the will does not make adequate provision for his proper maintenance and support. In addition, I am satisfied, having regard to the extent to which the applicant was being maintained or supported by the deceased before her death, and the applicant’s ongoing needs, that it is proper that some provision should be made for the applicant from the estate.
- In light of the agreement reached by the applicant, respondent and Christopher Leather, it is appropriate to make the orders sought. Those orders in effect make further provision for the maintenance and support of the applicant out of the estate. There is no basis for any suggestion that the agreement was accompanied by any undue influence and the parties are of full age.
- It is ordered that:
- Pursuant to s 41 of the Succession Act 1981 (Qld), further and better provision for the proper maintenance and support of the Applicant, Steven Wilson, be made out of the estate of Stephany Kim Leather, deceased (the “deceased”) by the deceased’s Will dated 13 April 2010 (the “Will”) being read and construed as follows:
- (a)clause 7 of the Will was deleted;
- (b)clause 6 of the Will was deleted and in lieu thereof the following was inserted:
I GIVE to my nephew CHRISTOPHER JOSEPH LEATHER the sum of $70,000.00 absolutely.
- The Respondent’s costs of and incidental to the proceedings be paid out of the estate on an indemnity basis.
- There be no order as to the Applicant’s costs.
 HCA 40; (1994) 181 CLR 201. Applied in Vigolo v Bostin  HCA 11; (2005) 221 CLR
191; per Gleeson CJ at , Gummow & Hayne JJ at , -, Callinan & Heydon JJ at .
Per Mason CJ, Deane, McHugh JJ at .
 QCA 143;  2 Qd R 208 at .
 HCA 73; (1960) 104 CLR 124.
Per Fullagar and Menzies JJ at 134-135.
 QSC 309;  1 Qd R 408.
 QSC 410.
- Published Case Name:
Wilson v The Public Trustee of Queensland
- Shortened Case Name:
Wilson v The Public Trustee of Queensland
 QDC 228
Lynch QC DCJ
11 Sep 2017