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- Unreported Judgment
Winsor v Winsor QDC 149
DISTRICT COURT OF QUEENSLAND
Winsor v Winsor  QDC 149
HELENE MARGARET WINSOR
District Court, Cairns
DELIVERED EX TEMPORE ON:
4 May 2018
4 May 2018
Morzone QC DCJ
Orders in terms of a draft order placed on the file.
SUCCESSION – FAMILY PROVISION – APPLICATION BY CHILD – where testator died in 2014 leaving an estate worth approximately $230,000 and about $110,000 in superannuation entitlements – where applicant left nothing – whether the applicant is left without adequate provision – whether applicant in a necessitous position – whether further provision should be made for the applicant out of the estate.
Succession Act 1981 (Qld) s 41
Crisp v Burns Philp Trustee Co. Ltd (NSWSC, 18 December 1979, unreported)
Hills v Chalk and Others  QCA 159
Milillo v Konnecke  NSWCA 109
Singer v Berghouse (1994) 181 CLR 201
Stewart v Stewart  QSC 238
J Auld of Farrellys Lawyers for the applicant.
P Astley of Astley Associates Solicitors for the respondent.
- The applicant, a 43-year-old disability pensioner with debilitating health conditions, applied for adequate provision from his father’s estate.
- The parties filed affidavits pursuant to the practice direction which led to negotiation and resolution of the proceedings. The parties now seek orders pursuant to that resolution in terms of a draft order, which sets out the terms of the settlement.
- The deceased died with a very modest estate on the 1st of March 2016. His last will was dated the 4th of July 2014. By its terms, the will bequeathed the entire estate to the deceased’s then wife, and stepmother of the applicant. She’s also the executor of the will.
- As at May 2017, the estate comprised approximately $20,000 in cash and a home unit valued at about $210,000. Liabilities, debts and expenses of the estate were then estimated at just under $17,000. The net value of the estate as at that time was, therefore, about $230,000. This did not include superannuation entitlements which, by its terms, benefited the respondent to its value of about $110,000. The parties do not dispute the standing of the applicant as an adult son to claim for a further provision for the deceased’s estate.
- The resolution of the parties involves the respondent gratuitously making a payment of $30,000 out of the superannuation fund in her personal capacity as the resulting beneficiary of that fund upon the death of the deceased. In addition, insofar as the estate is concerned, the parties have agreed that further provision in the amount of $80,000 ought to be made and paid to the applicant upon the death of the respondent. It is, in its terms, something akin to a crisp order, of the kind made by Holland J in Crisp v Burns Philp Trustee Co. Ltd.
- Sections 41(1) of the Succession Act 1981 (Qld) facilitates an application being made by a child or dependant in relation to seeking further provision out of the estate of a parent. In determining an application for family provision under section 41, the cases provide that a two-stage process should be employed.
- First, the Court must determine a jurisdictional question of whether the Applicant has been left with adequate provision for his or her property maintenance and support. Secondly, if so, the Court will then determine what provision ought to be made in the circumstances.
Is the Applicant left without adequate provision?
- The first stage of the inquiry is whether the disposition of the estate by the will made adequate provision for the proper maintenance and support of the applicant. This goes to jurisdiction and is to be determined at the date of the death of the deceased, including matters which could be reasonably foreseen at that time. The fact that a will is morally unjust is not enough to warrant alternation to the disposition of the property. In Singer v Berghouse, the jurisdictional question requires:
“…an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance, etcetera, 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 inquiry is more than an assessment of the applicant’s needs. It involves an evaluative balancing of all the relevant considerations to determine what provision a wise and just person in the position of the deceased would have made.
- As Justice of Appeal Keane (as he then was) observed in Hills v Chalkand Others:
“Judicial statements of high and long-standing authority explain that the evaluative assessment whether “adequate provision” has not been made for the “property maintenance and support” of an eligible person must be made from the perspective of the deceased person on the assumption that the decades was alert to the considerations relevant to the making of “adequate” provision for the “property maintenance and support” of the claimant. In Boschv Perpetual Trustee Co,  AC 463, Lord Romerdelivering the advice of the Judicial Committee of the Privy Council said that “in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father”.
- In summary then, the considerations relevant to the resolution of the jurisdictional question include: the applicant’s financial circumstances, the size of the deceased’s estate, the competing claims upon the deceased’s estate, the nature of the relationship between the deceased and the applicant, any contribution made by the applicant to the deceased’s estate, any special need of the applicant that was known and should have been known by the deceased and the deceased’s wishes.
The Applicant’s financial circumstances.
- As at May 2017, the applicant’s assets were about $800 with debts of about $28,000, including his higher education student loan debt of about $24,000. He was then, and continues to be, in a destitute state. He is in receipt of fortnightly Centrelink disability benefits with living expenses of about $1,300 per month. These expenses include discretionary lifestyle expenses, including cigarettes and alcohol.
- Notwithstanding that inclusion, I accept, as is obvious, that the applicant is in a necessitous position in relation to his future maintenance.
The size of the deceased’s estate.
- The deceased’s estate is very modest with a net value of about $230,000 as at May 2017. Even a modest provision for the applicant will heavily impact upon the dispositions made to the respondent beneficiary since the estate is predominantly made up of the home unit valued at about $210,000.
The competing claims upon the deceased’s estate.
- The applicant has identified others who may be entitled to apply for maintenance out of the estate, including his sister and also step-brother, but they have not done so. The respondent stands to benefit under the will to the extent of the entire estate as the deceased’s spouse and the applicant’s step-mother.
- Her financial position is also very modest, save for the transition of property in pursuant to the terms of the will. She deposes in earlier affidavits to having approximately $32,671.65 in assets, excluding any benefit under the superannuation entitlement valued at $109,745.36 before a settlement involving the applicant. She is otherwise in receipt of periodical benefits which barely cover her monthly expenses of almost $2000. She is 72 years old. And although she describes her health as being poor, it may be somewhat of an understatement. She suffers from anxiety, depression, hypertension, blood pressure, glucose intolerance and requires the continued care of treating practitioners, including a psychologist.
- It may also be somewhat of an understatement to describe the applicant’s condition as being of poor health. Since about 29 years of age, he was recognised to be suffering bipolar (mood) disorder which also involved general anxiety disorder. By 31 years of age, he was recognised as having schizoaffective (mood and though) disorder. He has experienced mental health issues since the separation of his parents and has endured life-long counselling and treatment whilst, at the same time, struggling with alcohol misuse. Whilst his signs and symptoms were later recognised, it is likely that he was experiencing those things, the subject of his diagnosed mental state, as early as 19 years old.
- Even so, he assisted his father following the divorce from his mother and provided emotional support for his father’s depression. He was able to emerge from his schooling with a high level of achievement and commenced training to become an electronics technician/engineering tradesperson, such was the recommendation of his father. His financial state, though, pushed him in a different direction where he obtained other forms of employment to the point that he was able to consolidate his life with a house, and car and even a relationship. That relationship broke down in circumstances of very deep betrayal and he lost all of his assets.
- He was the beneficiary of his father’s assistance in buying a small unit whereby his father took on a half share and acted as guarantor. He and his father were employed at the same place and sadly lost their employment at the same time when that business sold. The applicant was then about 28 years old. The impact of those circumstances overlaying his mental fragility since the breakdown of his parents’ relationship was profound. He was also unable to afford repayments on the home unit, but this was significantly curtailed by his unsuccessful, yet concerted efforts to obtain employment. The applicant’s mother is bankrupt and unable to support him.
The nature of the relationship between the deceased and the applicant.
- The applicant did enjoy the mutual support of his father, both financially and emotionally. The financial support were in the form of bank transfers and cash gifts. Indeed, the deceased paid the applicant $400 shortly before his death to buy household items.
- Incidentally, that act of compassion seemed to draw the wrath of the respondent when she discovered that transaction after the deceased died. She had kept separate bank accounts from the deceased and may not have, it seems, been fully aware of the extent of the deceased’s continuing financial support of the applicant.
Any contribution made by the applicant to the deceased’s estate.
- Apart from providing his father with the emotional and mutual support through the tumultuous years of the breakdown of his marriage with the applicant’s mother, there is no significant contributions made by the applicant towards the building up of the deceased’s estate. Indeed, the circumstances which evolved required continuing and concerted support by the deceased of the applicant through his challenges financially and arising from his state of health.
The deceased’s wishes.
- As I have already alluded to the respondent, former spouse of the deceased, is the sole beneficiary under his will. The others identified by the applicant as potential claimants on the estate, were not subject of any consideration under his last will. It may well be that the deceased recognised the perilous position of the respondent in taking that course. However, a wise and just testator, having regard to the circumstances and continuing dependency of his son, the applicant should have made some provision for the applicant in his will. I conclude that the applicant is entitled to adequate provision from the deceased’s estate, which takes me to the second stage of the process.
What provision ought to be made
- The second stage involves a determination of what provision, having regard to all the circumstances, would be proper maintenance for the applicant.
- “Adequate provision for the proper maintenance, etcetera” means more than maintenance at a basic level. It means maintenance and support at a level or degree appropriate to the applicant in all of the circumstances, which is judged according to prevailing community standards of what is right and appropriate at the time of the trial. Justice Applegarth described this stage in Stewart v Stewart as follows:
“If inadequate provision was made for the applicant, then the court determines what amount the applicant should properly receive from the deceased’s estate. This requires the Court to exercise its discretion in determining what provision a “wise and just testator” would have made in the circumstances. In exercising its discretion, the matters already considered in connection with the adequacy of any provision become relevant to the determination of what provision should be made.”
- But the Court has no power to rewrite or make a new will to affect a “fair” distribution of the testator’s estate among family members. As it was put in Blore v Lang:
“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, etcetera, and the extent of the interference authorised is to order such provision as the court thinks fit for that person’s proper maintenance. Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case where a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator’s bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to 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 members of his family.”
- As I’ve remarked above, the resolution of these proceedings has quite properly so provided for the applicant to an extent less than an absolute interest in the property of the deceased. It is something like the Crisp order, the nature and purpose of which was described by Ipp JA and Milillo v Konnecke, by reference to its genesis:
“A Crisp order is an order of the kind made by Holland J in Crips v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a person an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purpose of securing, for the plaintiff’s benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported), Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital”.
Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to seal a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest”.
- Here the parties recognise the importance and security of the respondent’s accommodation as she ages within the former matrimonial home unit. Rather than force a premature sale of that asset through continued disputation or other more immediate provision out of the estate, the parties have agreed that the respondent can continue residing in the home unit with appropriate security to facilitate any other succession from that accommodation to other more age-appropriate accommodation in due course. The further provision quantified at $80,000 in the terms of settlement would then be paid from the estate at the appointed time, ultimately, with the respondent’s death.
- It seems to me that the compromise in the terms proposed do provide for the proper maintenance of the applicant whilst at the same time securing the estate for the benefit of the respondent, the deceased spouse and the applicant’s stepmother for the term of her life.
- For all these reasons, I conclude that the appropriate order is for the will to be read and construed as provided in the draft order.
- For these reasons I make orders in terms of a draft which I initial and place with the file.
- Therefore, pursuant to those orders the compromise resolving the proceeding is approved by the Court. The relevant terms are contained in a deed of agreement which I mark exhibit 1 in the proceeding and the parties ought carry out the executory matters to put the order in place in accordance with that deed of agreement.
- And it is noted that each party will pay and discharge their own costs and outlays arising from those executory steps to give effect to the order and the deed of agreement.
 Crisp v Burns Philp Trustee Co. Ltd (NSWSC, 18 December 1979, unreported) referred to by Ipp JA in Milillo, v Konnecke,  NSWCA 109 at - and referred to Kowalski v Kowalski and Others  QCA 234 at .
 See discussion JK de Groot, v BW Nickel (2007) Family Provision in Australia, third edition, Butterworths Australia, at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolov Bostin (2005) 221 CLR 191.
 Singer v Berghouse (1994) 181 CLR 201, at 210.
 Hills v Chalkand Others  QCA 159 at 
 Stewart v Stewart  QSC 238 at .
 Blore v Lang (1960) 104 CLR 124 at 134 – 135.
 Milillo v Konnecke  NSWCA 109 at  – .
- Published Case Name:
Winsor v Winsor
- Shortened Case Name:
Winsor v Winsor
 QDC 149
04 May 2018