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Hooper v Wyatt[2018] QDC 162

DISTRICT COURT OF QUEENSLAND

CITATION:

Hooper (by his litigation guardian The Public Trustee of Queensland) v Wyatt [2018] QDC 162

PARTIES:

Darryl Alan Hooper by his Litigation Guardian, THE PUBLIC TRUSTEE OF QUEENSLAND

(applicant)

AND

JanEse Ruby Wyatt as executor of the will of SYDNEY CHARLES HOOPER deceased

(respondent)

FILE NO/S:

547/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE  ON:

1 August 2018

DELIVERED AT:

Cairns

HEARING DATE:

1 August 2018

JUDGE:

Morzone QC DCJ

ORDER:

  1. Application allowed.
  2. Orders made in terms of the draft order for sanction of the compromise.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – APPLICATION BY CHILD – where testator died in 2017 leaving an estate worth approximately $218,000– 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.

Legislation

Guardianship and Administration Act 2000 (Qld) sch 4

Public Trustee Act 1978 (Qld) s 59

Succession Act 1981 (Qld), s 41.

Uniform Civil Procedure Rules 1999 (Qld) r 98

Cases

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

Burke v Burke [2015] NSWCA 195

McCosker v McCosker [1957] HCA 82

Singer v Berghouse (1994) 181 CLR 201

Wentworth v Wentworth, Estate of GM Wentworth unreported 14 June 1991

Wheatley v Wheatley [2006] NSWCA 262

White v Barron (1980), 144 CLR 431

Wright v Wright [2016] QDC 74

COUNSEL:

K J Kluss for the applicant

SOLICITORS:

Official Solicitor to the Public Trustee of Queensland for the applicant

J Auld of Farrellys Lawyers for the respondent

  1. [1]
    The applicant by his litigation guardian, the Public Trustee of Queensland (the Public Trustee) applies for adequate provision from the estate of his father’s estate as provided in the will dated 17 September 2008.
  1. [2]
    The present application seeks orders from the court to sanction pursuant to s 41 of the Succession Act, s 59(1) of the Public Trustee Act 1978 (Qld) and r 98 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) because the applicant is a person under a legal disability as defined by s 59 (1A) of the Public Trustee Act and schedule 4 of the Guardianship and Administration Act 2000 (Qld). 

The Will

  1. [3]
    The deceased died on 15 May 2017 and was survived by four biological children:
  1. (a)
    Lynette Dawn Kanon, aged 62 years at the date of death (Ms Kanon);
  1. (b)
    Gary James Hooper, aged 60 years at the date of death (Mr Hooper);
  1. (c)
    Janese Ruby Wyatt, aged 56 years at the date of death (Ms Wyatt); and
  1. (d)
    The applicant, aged 51 years at the date of death.
  1. [4]
    By his last Will, the deceased:[1]
  1. (a)
    appointed Ms Wyatt as executor;
  1. (b)
    gifted the whole of the estate to Ms Wyatt for her sole use and benefit absolutely;
  1. (c)
    expressly did not provide for Mr Hooper or Ms Kanon, or their respective children, on the basis “they have never visited [the deceased] during [his] residence at the Farnorha Nursing Home, and they are not in any need, financial or otherwise”;
  1. (d)
    Made no mention of, and therefore no provision for, the applicant.
  1. [5]
    Probate of the Will was granted on 13 July 2017.

The Estate

  1. [6]
    The estate is relatively small, being valued at the date of death at about $218,101.13.[2]

Assets

Estimated Value

RSL Care Bond

$205,218.38

Bendigo Bank account

$6,691.68

Commonwealth Bank

$6,119.17

AHM Refund

$71.90

Subtotal

$218,101.13

  1. [7]
    As at 30 July 2018, there were no liabilities on the estate, except from costs incurred to date in the amount of $16,687.50.[3]The further costs in respect unresolved proceedings commenced by Mr Hooper and Ms Wyatt are estimated at $5,000.00 and $7,500.00.  Therefore, the net estate for distribution is about $201,413.63.[4]

The Applicant

  1. [8]
    The applicant is now 52.
  1. [9]
    Since 2000[5]he has lived in 24-hour supported accommodation with four other residents who also have disabilities, in a property in Toowoomba, provided by the Department of Communities, Child Safety, and Disability Services.[6]
  1. [10]
    The applicant’s primary diagnosis is Trisomy 21, also known as Down Syndrome,[7]which manifests in a significant intellectual impairment.[8]He is also has a communication impairment, epilepsy, hepatitis B and cirrhosis of the liver, swallowing difficulties, kyphosis of the spine, and has had all his natural teeth removed and replaced with a full set of dentures.[9]He has a reduced life expectancy
  1. [11]
    The expert Occupational therapist Needs Assessment Report dated 15 August 2017, shows the applicants immediate need for equipment in the amount of $3,198, which together with other equipment, will require recurrent replacement costing about $4,255 every 5-10 years. He also requires recurrent support of $354 per week in addition to NDIS assistance.
  1. [12]
    He does not have private health cover and relies upon the public health system.
  1. [13]
    The applicant is, and is likely to remain, unemployed. His only source of income is a disability support pension, and interest earned on his investments. Before the costs of future need his net income is just under $60 fortnight. His net assets are estimated at $59,318.36.[10] 
  1. [14]
    The only competing claims on the estate are those of Ms Kanon, Mr Hooper, and Ms Wyatt
  1. [15]
    Ms Wyatt is now 57 years old with net assets estimated at between $146,000.00 and $254,000.00. Mr Hooper and Ms Kanon are yet to disclose their financial circumstances. Although their claims are still unresolved, they support the sanction of the applicant’s compromise, which would see the applicant receive $110,000.00 being about 50% of the gross estate.[11]
  1. [16]
    Unlike many cases involving estrangement, the applicant here, burdened by significant and profound disabilities but with all the human rights of an able person,[12]lost contact with his father and his siblings, when he was placed into state care at a young age, with no contact and, indeed, the others assumed he’d died until about 1½ months after his father’s death.[13]

Adequate Provision

  1. [17]
    Section 41(1) of the Succession Act enables the court to order that further provision for an eligible applicant be made out of the deceased’s estate.  The applicant has the requisite standing as an adult child, without any need to show special need or some special claim.[14]
  1. [18]
    In determining an application for further provision pursuant to s 41 of the Act, the long standing authorities direct a two stage process:[15]
  1. (a)
    First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support; and
  1. (b)
    Secondly, if so, the court will then determine what provision ought to be made in the circumstances.

Jurisdictional Question

  1. [19]
    The first stage, described as the “jurisdictional question”,[16]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.  This requires an assessment of whether the provision, if any, made was inadequate and for what, in all the circumstances, was the proper level of maintenance appropriate for the applicant having regard to the applicant’s financial position; size and nature of the deceased’s estate; totality of the relationship between the applicant and the deceased; and relationship between the deceased and other persons who have legitimate claims upon his or her bounty.[17].
  1. [20]
    Although the estate is modest, the applicant’s financial circumstances are dire. He has no significant assets or real property, and a paltry income from his pension and interest. He has and will continue to suffer future deterioration of his health and capacity, and substantial expenses to manage, accommodate and treated his condition. So much is plain from what I have said.
  1. [21]
    Balancing the applicant’s state and the competing beneficiaries, it seems to me that the applicant qualifies for adequate provision, which requires far more than what was otherwise provided, namely, nil.

Quantum

  1. [22]
    Having determined the jurisdictional question in favour of the applicant, the issue then arises as to the effect of the parties’ agreement in respect of the amount of further provision the applicant ought to receive. This involves an exercise of discretion.[18]The proper exercise of this discretion ought not circumvented by the parties’ compromise,[19]which deserves considerable weight, particularly in circumstances where all parties are legally competent.
  1. [23]
    The Will does not make any provision for the applicant, in circumstances where he suffers from a significant disability and various medical and health conditions, has minimal assets, and limited surplus currency for current and future needs as assessed. The parties have reached the position of the comprise with the knowledge and consent of competing beneficiaries having regard, clearly, to the circumstances facing the applicant as well as the size of the estate and attended legal costs in any contested or future management of proceedings.
  1. [24]
    I’ve also had the benefit of reading the advice for counsel for the applicant. The advice is tendered in the usual way and will be retained on the file in the usual way so as to maintain its proper confidentiality and privilege. The circumstances here are well addressed by counsel in all of the facets that are required so as to provide comfort to the court in allowing the application.

Conclusion

  1. [25]
    For these reasons I conclude that proposed compromise is an appropriate one, and ought to be sanctioned under s 59 of the Public Trustee Act and r 98 of the UCPR, and I make orders in terms of the draft orders signed and placed with the papers.

Footnotes

[1] Exhibit CJM-5, (p 7 of exhibits) to Affidavit of Clinton James Miles, filed 14 February 2018 (Court  File Index Document No.3).

[2] Exhibit CJM-7, (p 16 of exhibits) to Affidavit of Clinton James Miles, filed 14 February 2018 (Court   File Index Document No.3).

[3] Exhibit JAM-1 to affidavit of Jacqueline Ann Moore, sworn 31 July 2018.

[4] $218,101.13 - $16,687.50 = $201,413.63.

[5]Exhibit CJM-8, (p 22 of exhibits, p 7 of Report), to Affidavit of Clinton James Miles, filed 14 February 2018 (Court File Index Document No.3).

[6]Exhibit CJM-8, (p 22 of exhibits, p 7 of Report), to Affidavit of Clinton James Miles, filed 14 February 2018 (Court File Index Document No.3).

[7]Exhibit CJM-9, (p 28 of exhibits), to Affidavit of Clinton James Miles, filed 14 February 2018  (Court File Index Document No.3).

[8]Exhibit CJM-8, (pp 18-19 of exhibits, pp 3-4 of Report), to Affidavit of Clinton James Miles, filed 14 February 2018 (Court File Index Document No.3).

[9]Exhibit CJM-8, (pp 18-19 of exhibits, pp 3-4 of Report), to Affidavit of Clinton James Miles, filed 14 February 2018 (Court File Index Document No.3).

[10] Affidavit of Clinton James Miles, filed 14 February 2018, paras 8-9 (Court File Index Document No.3).

[11] Based on a gross estate of $218,101.13.

[12] Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 at [28].

[13] Burke v Burke [2015] NSWCA 195 at [103]; Wheatley v Wheatley [2006] NSWCA 262.  Wentworth v Wentworth, Estate of GM Wentworth (unreported 14 June 1991); Wright v Wright [2016] QDC 74.

[14] McCosker v McCosker [1957] HCA 82.

[15] Singer v Berghouse (1994) 181 CLR 201 at 208 & Vigolo v Bostin (2005) 221 CLR 191.

[16] See for example: White v Barron (1980) 144 CLR 431, at 456; Bondelmonte v Blanckensee [1989]    WAR 305, at 307; Golosky v Golosky (unreported; NSWCA; 5 October 1993).

[17] Singer v Berghouse (1994) 181 CLR 201 at 209-10.

[18] Singer v Berghouse (1994) 181 CLR 201 at 211.

[19] Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 at [30], approving the approach of Dalton J in Affoo v Public Trustee of  Queensland [2012] Qd R 408.

Close

Editorial Notes

  • Published Case Name:

    Hooper (By His Litigation Guardian The Public Trustee of Queensland) v Wyatt

  • Shortened Case Name:

    Hooper v Wyatt

  • MNC:

    [2018] QDC 162

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    01 Aug 2018

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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