Kerridge v Overlack[2018] QDC 126

DISTRICT COURT OF QUEENSLAND

1. [1]
   Valerie June Kerridge (the applicant) has applied for further provision to be made for her proper maintenance and support from the estate of Maxwell Thomas Arthur Davidson (the deceased) pursuant to section 41 of the Succession Act 1981 (Qld) (the Act).

2. [2]
   The applicant is one of three adult children of the deceased who died on 19 May 2017. The respondents are the deceased’s other adult children. All three of the deceased’s adult children are executors of his will which was dated 18 April 2017. Under that will, the deceased gave the applicant a life interest in a freehold property at Brinsmead and provided that the freehold of the property would vest in the applicant’s daughters on termination of the life interest. The deceased left other freehold property to the respondent, Sandra Stone; a motor vehicle, shares, jewellery, antique furniture and collectables and cash to the respondent, Linda Overlack; a truck, tractor and other motor vehicles and tools to his son-in-law; and the rest and residue of his estate to be divided between his three adult children.

3. [3]
   The deceased’s estate is valued at over $1.9 million. The value of the house at Brinsmead in which the applicant was given a life interest, is $450,000.00. The total value of the other freehold is over $670,000.00. The value of the motor vehicle, jewellery, antique furniture, collectables and cash is over $500,000.00.

4. [4]
   On 16 February 2018 an applicant filed the originating application pursuant to section 41 of the Act seeking adequate provision to be made for her proper maintenance and support from the deceased’s estate.

5. [5]
   No other eligible applicants have applied under section 41 of the Act.

6. [6]
   Section 41 relevantly provides that if a person dies, and, in the terms of the will, adequate provision is not made from the estate for the proper maintenance and support of the deceased’s spouse, child or dependant, the court may, in its discretion, on application, order that such a provision as the court thinks fit shall be made out of the estate of the deceased person. I am satisfied that the court has the jurisdiction to make an order.

7. [7]
   The determination of a family provision claim involves the well known two step process outlined in Singer v Berghouse (No. 2) (1994) 181 CLR 201 at 208, which was confirmed in Vigolo v Bostin (2005) 221 CLR 191 at 197.

8. [8]
   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: Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 approved in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 at paragraph 30.

9. [9]
   The applicant has lived in the property in which she was granted a life interest for many years.

10. [10]
    The applicant is currently 69 years of age. She has five independent adult children. She has been retired for about twelve years and receives a full age pension of approximately $670.00 per fortnight. She has assets of approximately $115,000.00 and no significant liabilities. She has recently started living in a de facto relationship with a man who is also 69 years of age who also receives the age pension. Apart from taking blood pressure medication, she has no other health issues. She had a very good relationship with the deceased. He had earlier given her a place to stay when she divorced her first husband, he stayed with her when he travelled to Cairns, and she helped him and her mother over the years, as did the respondents.

11. [11]
    I am satisfied that there is a basis for making the application. The applicant has demonstrated both a need and a moral claim. The only provision made for the applicant in the deceased’s will was a life interest. She is a pensioner who does not own her own home and the life interest does not provide her with any flexibility about housing choice as she ages.

12. [12]
    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 order sought, then the compromise of the parties is the significant factor.

13. [13]
    The parties have compromised the proceedings by signing a deed. The effect of the compromise is that, instead of a life interest in the Brinsmead property, the applicant will receive the freehold of that property as well as some personal effects. The estate will also pay the applicant’s costs fixed in the sum of $5,000.00. Otherwise the parties are to bear their own costs of this proceeding.

14. [14]
    The applicant’s five adult daughters are the default beneficiaries of the property at Brinsmead and are interested beneficiaries. They have agreed and consented to the freehold in that property vesting in the applicant. The effect of the settlement is that the applicant will obtain the freehold title to the home that she has lived in for many years which provides her with a significant capital sum against which she may exercise choice regarding to her accommodation in future. With the exception of the applicant’s children, the terms of the settlement substantially preserve the interests of the competing beneficiaries. The interests of the respondents remain substantially unaffected. Each of the applicant’s children who would otherwise benefit from the terms of the will, have disclaimed their interest in the Brinsmead property and consented to the applicant receiving the freehold title.

15. [15]
    I am satisfied that the proposed orders to give effect to the compromise are, in all circumstances, appropriate provision for the proper maintenance and support of the applicant from the deceased’s estate.

16. [16]
    I make the order in terms of the draft order as amended.