Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Burgess v Abbott[2017] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Burgess v Abbott & anor [2017] QDC 323

PARTIES:

ROBERT WARWICK BURGESS

(plaintiff)

v

JOHANNA MARY ABBOTT

(first defendant)

&

JENNIFER ANNE McPERSON

(second defendant)

FILE NO/S:

68 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District court in Southport

DELIVERED ON:

15 September 2017 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

15 September 2017

JUDGE:

Muir DCJ

ORDER:

  1. Further provision be made for the proper maintenance and support of the applicant by way of provision in the sum of $15,000 in addition to the applicant’s existing entitlement under the Will of the deceased dated 24 July 2009.
  2. The applicant bear his own costs of and incidental to the proceeding.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION –  where deceased is survived by three children - where applicant is the son of the deceased – where the respondents are daughters of the deceased – where the applicant has made unpaid contributions to the family farm – where settlement of the substantial claim has been reached to reduce further legal costs – where courts discretion is required to give effect to the terms of settlement – whether applicant left with insufficient provision.

Succession Act 1981 (Qld), section 41(1)

Abrahams v Abrahams [2015] QCA 286, considered

Affoo v Public Trustee of Queensland [2011] QSC 309, cited

Singer v Berghouse 2 [1994] 181 CLR 201, followed

Vigolo v Bostin [2005] 221 CLR 191, cited

Watts v Public Trustee of Queensland [2010] QSC 410, followed

SOLICITORS:

Ramsden Lawyers for the plaintiff

Parsons Law for the defendants

Introduction

  1. [1]
    This is an application for orders to put into effect the settlement of a family provision application filed on 14 of March 2017. I have determined in the exercise of my discretion to make the orders sought. These are my reasons.
  1. [2]
    Unfortunately, when the application came before me, I was not provided with any assistance by way of written or oral submissions. The applicant’s solicitor, when I asked her, could not and did not assist me in any way regarding the relevant considerations. In the future, parties who appear in this court on such applications are to be prepared to address the relevant considerations and be prepared to assist the court in identifying the matters relevant to the court’s discretion, in particular jurisdictional issues.
  1. [3]
    Parties should not assume the jurisdictional issue is a rubberstamp matter. If, in the future, parties have a genuine concern about that issue, then, of course, settlement agreements can be reached without final orders being sought from the Court. Whilst I accept that this course may pose some discomfort to executors who are placed in such a position, I do not wish, in the future, by having acceded to the orders sought in this case, to be taken to, in any way, encouraging ill-considered or unmeritorious applications for family provision.
  1. [4]
    In the present case, the deceased died on 14 June 2016. The applicant is the only son of the deceased and requests that I make orders giving effect to the settlement. All parties affected by the settlement have been served with the applicant’s material. The solicitor for the applicant appears today on behalf of the applicant and also as town agent for the respondents.
  1. [5]
    The deceased is survived by three children: the applicant, and the first and second respondents, who are her daughters. Probate of the will dated 24 July 2009 was granted by the Supreme Court of Queensland at Brisbane on 5 April 2017. By her will, the deceased gifted the whole of her estate in three equal shares to the applicant and to the two respondents. The deceased’s three children were also the named executors of the will but the applicant renounced his role, in around March 2017, acknowledging complexities arising by virtue of this application. The value of the estate is estimated in the joint affidavit of the first and second respondents, who are the remaining executors, to be in the vicinity of $551,000 to $559,000.

Settlement

  1. [6]
    In March 2007, the parties entered into settlement negotiations, and on 7 August 2017, the parties entered into a deed of settlement and release giving effect to the terms of settlement. The parties now seek the orders of the Court to put the settlement into effect.
  1. [7]
    The relevant terms of settlement are that:

In full and final satisfaction of the claims:

  1. (a)
    further provision will be made for the proper maintenance and support of the applicant by way of provision in the sum of $15,000, in addition to the applicant’s existing entitlement under the Will of the Deceased and;
  1. (b)
    no legacy interest will be payable on the further provision being made to the applicant.
  1. (c)
    the Applicant will bear his own costs of the proceedings, and
  1. (d)
    As to the respondents’ legal costs of the proceeding and legal costs of and incidental to the administration of the Estate (including disbursements):
  1. (i)
    the executors shall bear the first $4,193.87 of those costs personally, and
  1. (ii)
    the executors shall otherwise be entitled to be indemnified and reimbursed from the Estate for their legal costs and disbursements and in respect of any liabilities incurred in respect of the Proceedings and/or the administration of the Estate.

Applicant’s position

  1. [8]
    The applicant is currently 64 years of age and in reasonably good health. He is employed as a pest technician and works approximately 60 hours a work. He rents the property he resides in with his de facto but also has three investment properties for which he receives an income. He also owns a further property of 10 acres, which is the original family farm, which he purchased in 1988, which, at the time, was owned by an old school friend.
  1. [9]
    He was married in 1982 and, from that marriage, has three children who are not dependent. His total assets are $1.238 million with total liabilities of $510,000. The applicant’s evidence is that he has very little superannuation, so he is unable to retire at 65. When his parents were alive, they gave him money to allow him to purchase a property. The amount given was $40,000, but he was required to re-pay them $20,000. The applicant points to his sisters, the first and second respondents, being given the equivalent amount, though, in the first respondent’s case, it was the gift of a Pajero vehicle.
  1. [10]
    The applicant points to his sister Jennifer’s son having cerebral palsy and that significant financial assistance has been provided to the second respondent because of this. He also makes a general assertion as to the significant financial assistance being provided to the first respondent by his parents. In his case, his evidence is that he was expected to earn a living through his own means. He also sets out that his parents required him to assist them with farm work and that he would probably have spent four years of unpaid work on the farm, which he felt was a fair bargain for the property he was apparently promised in return, but never received. His evidence is that he was happy to do this work because his parents always told him that his contributions to the farm would result in him being given the western side of the farm.
  1. [11]
    The applicant says he and his sisters cared for the deceased over the last few years but that the second respondent spent more time looking after their mother than he and the first respondent did. He also says that his mother was a gold card holder, so she had the assistance of Blue Care.
  1. [12]
    The crux of the application seems to be that the applicant considers his sisters have received significant financial assistance from his parents and that he was not given similar assistance.

Respondent’s position

  1. [13]
    Against this, there is evidence before me from the first and second respondents that the agreement to settle has been reached with a view to minimise unnecessary costs and to maximise the estate’s assets available for distribution. It seems from the material before me that the executors made the decision not to incur the time or expense to deal with the allegations set out by the applicant in his affidavit. The respondent’s joint affidavit provides a general overview of their respective financial circumstances as beneficiaries. In particular, at paragraph 13 of the joint affidavit of the respondents, they state that:
  1. (a)
    there are statements and alleged or purported facts set out in the Applicant’s affidavit that are disputed or not admitted, and (b) should the proceeding not be finalised, we intend to file further material addressing the above matters and addressing other matters, including relationship with and support provided to our mother.
  1. [14]
    By way of overview, the first respondent’s circumstances are that she is 55 years of age, married with two children, who are not dependent. She is currently unemployed and lives together with her husband in a house they own. The first respondent’s assets total approximately $1.126 million, with liabilities of approximately $42,000. Their present income is only slightly higher than their expenses, with a $286 monthly surplus.
  1. [15]
    The first respondent suffered a nervous breakdown and is receiving psychological counselling, and has been prescribed antidepressant medication. She will need to return to work at some point, as her current superannuation balance is not viable.
  1. [16]
    The circumstances of the second respondent are that she is 67 years of age with three adult children, the youngest of whom suffers from diplegic cerebral palsy and who is dependent upon her and her husband, both financially and for personal healthcare support. The second respondent is unemployed and has health issues.
  1. [17]
    The youngest son of the second respondent is unemployed and lives with the second respondent and her husband and receives a Newstart payment of $490 per fortnight. The second respondent’s assets total $1.5 million, with liabilities comprising of approximately $133,000. Their monthly income currently exceeds their monthly expenses, with a $948 monthly surplus. The second respondent is also receiving counselling to assist her with the loss of her mother and, it seems, the applicant’s claim against the estate. The second respondent and her husband have also expended personal funds and time to maintain, improve and repair the deceased’s real property and have directly contributed to the improvement and value of the estate asset.

Relevant legal principles

  1. [18]
    Turning now to the law in relation to family provision applications.
  1. [19]
    Section 41(1) of the Succession Act 1981 (Qld), gives the Court power to order provision for a spouse, child or dependent of the deceased:
  1. (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.
  1. [20]
    The High Court, in Singer v Berghouse 2 [1994] 181 CLR 201, at [209] to [210], held that, in considering a family provision application, the Court was required to undergo:

…a two-stage process.  The first stage calls for a determination of whether the applicant has been left without adequate provision for their proper maintenance, education and advancement in life.

  1. [21]
    This is called the jurisdictional question, which calls for an assessment of whether the provision, if any, was inadequate for what was the proper level of maintenance appropriate for the applicant, having regard to, amongst other things:
  1. (a)
    the applicant’s financial position; 
  2. (b)
    the size and nature of the estate;
  3. (c)
    the totality of the relationship between the applicant and the deceased;  and
  4. (d)
    the relationship between the deceased and others with a legitimate claim on the deceased’s bounty.
  1. [22]
    The second stage only arises if that determination has been made in favour of the applicant and requires the Court to decide what provision ought to be made. I note that this two-stage process was confirmed in Vigolo v Bostin [2005] 221 CLR 191.
  1. [23]
    The final disposition of a family provision application is an exercise of the Court’s discretion. It cannot be achieved by agreement or deed. See Abrahams v Abrahams [2015] QCA 286, approving the approach of Justice Dalton in Affoo v Public Trustee of Queensland [2011] QSC 309.

Analysis

  1. [24]
    Turning now to the application of these principles to the facts before me.
  1. [25]
    In this case, the executors do not accept that inadequate provision has been made for the applicant, but instead, appear to have settled the matter, given the size of the estate and the legal costs involved moving forward. This practical approach, of course, does not satisfy the jurisdictional question that I need to turn my mind to. On the material before me, the applicant’s case appears to be that, given his unpaid contribution to the family farm, adequate provision has not been made. At first blush, I certainly have some concern about the merits of this application.
  1. [26]
    The Court cannot rubberstamp a settlement between the parties. It must be satisfied that its jurisdiction is invoked, that is the applicant has been left without adequate provision. However, I accept the Court is not to hear the matter as if it were a contested application and then to give or withhold orders by comparing the settlement with the judgment it would have given. The proper approach is to give consideration to the evidence before it, but to be aware of the risks of litigation in an area in which reasonable people can reasonably reach different conclusions and give proper weight to the fact that the parties wish to effect the settlement.
  1. [27]
    In Watts v Public Trustee of Queensland [2010] QSC 410 at [11], Jones J stated the Court’s position in relation to jurisdiction as follows:

This Court’s jurisdiction to make an order will only arise if it is of the opinion that the disposition of the deceased’s estate effected by her will is not such as to make adequate provision from her estate for the applicant.  This is in accord with the approach to claims of this kind as determined by the High Court in Singer v Berghouse and confirmed in Vigolo v Bostin.

And then, at paragraph 15:

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 therefore 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.

  1. [28]
    In this case, the agreement of the parties is, therefore, a matter of considerable weight. Here, all of the parties are sui juris and have reached settlement on terms considered reasonable to them. If the matter proceeded to trial, the estate would be substantially depleted by costs. Bearing in mind the test set out in Singer v Berghouse, and particularly given the size of the estate, and accepting that reasonable minds might differ, I have reached the view that it is open to the Court to conclude that the applicant was not adequately provided for.
  1. [29]
    Whilst the estate does not necessarily accept, on the material before me, that this is the case, it seems to me that, at least on one view of the applicant’s material, there is arguably a case that he was not adequately provided for.
  1. [30]
    Having therefore satisfied myself that the first stage process has been satisfied, I consider that I ought to adopt the approach as identified by Justice Jones in Watts v Public Trustee of Queensland [2010] QSC 410.

Conclusion

  1. [31]
    In the circumstances where all the parties are sui juris and have participated in the settlement process, I will give effect to the terms of settlement in accordance with the draft handed to me.
  1. [32]
    I have made the orders, which I will have my Associate place with the Court file, and then the sealed copies will be available from the registry. I expect in the future, parties will bear in mind the matters that I have outlined in my reasons and attend court fully prepared to address the relevant considerations.
Close

Editorial Notes

  • Published Case Name:

    Burgess v Abbott & anor

  • Shortened Case Name:

    Burgess v Abbott

  • MNC:

    [2017] QDC 323

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    15 Sep 2017

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.