Mason v Shepherd[2018] QDC 278

DISTRICT COURT OF QUEENSLAND

1. [1]
   The proceedings before the court involve an application pursuant to s 41 of the Succession Act 1981. Annette Isabel May Mason, referred to as the applicant in these reasons, applies for an order that adequate provision be made for her proper maintenance and support from the estate of her mother, May Evelyn Bell. The respondents to that application are Linda Fay Shepherd and Donald James Bell, referred to as the respondents in these reasons, as executors of the will of the deceased. The respondents now apply, seeking to have final orders made, as to the application for adequate provision, in effect, by ordering that the applicant be paid the sum of $30,000 out of the estate, in addition to her existing entitlement under the will. The applicant opposes that application and instead seeks an order referring the matter for mediation, or alternatively, listing the matter for hearing.

2. [2]
   May Evelyn Bell died on the 2^nd of April 2017, and is survived by her four children. By her will, dated the 21^st of June 2002, the deceased appointed her children, Linda Fay Shepherd and Donald James Bell, as executors and trustees of her estate. By clauses 7.01 to 7.05 of her will, the deceased bequeathed personal items and furniture to her daughter, Linda Shepherd, daughter-in-law Vicky Bell, and her grandchildren. By clause 8 of her will, the deceased bequeathed the residue of her estate equally to her four children, that is, the applicant, Barbara Hall, Linda Shepherd and Donald Bell.

3. [3]
   The net value of the estate has been estimated, as at the 31^st July 2018, as being $226,200. The principal asset in the estate is a 50 per cent interest in a property situated at 32 Ott Street, Toowoomba. That share being valued at $215,000. The other assets in the estate include approximately $20,000 held in bank accounts and $2000 worth of household items. The liabilities of the estate amount to some $10,800 for existing administration expenses and legal fees, and insurance, rates and water charges. The applicant does not dispute this valuation.

4. [4]
   Each of the four children of the deceased are also beneficiaries of the estate of their father, Ronald Roy Bell. Ronald Roy Bell died on 30 December 2008. By his will, he bequeathed his 50 per cent share in the Ott Street property to be shared equally amongst his children. The total value of that property is said to be $430,000, hence the half-share being valued at $215,000.

5. [5]
   The initial application contends, as I have said, that the applicant, Annette Mason, is not adequately provided for under the terms of the will of her mother. It is not disputed that the applicant is the child of the deceased, and the application was filed within the time limit provided under section 41(8) of the Act. No objection is made to the court hearing and determining the application in the absence of a grant of probate.

6. [6]
   The originating application was filed on 22 December 2017. Affidavits of the applicant were filed on 22 December 2017 and 9 November 2018. In none of those documents is it identified what additional sum, or proportion of the estate, the applicant submits should be ordered to her benefit, to provide for her adequate maintenance and support. I was informed by the applicant’s legal representative from the Bar table on the hearing today, that the applicant’s position is that the entirety of the deceased’s estate should be put to her benefit.

7. [7]
   Affidavits of the respondents were filed on 1^st and 3^rd of August 2018, identifying the personal circumstances of each of the respondents and their sister, and fellow beneficiary, Barbara Hall. The affidavit of Donald Bell also provided details of the valuation of the Ott Street, and the potential rent that property might attract. The material before the court exposes the circumstances behind the present application. By letter of 6 September 2018, the respondents’ solicitors indicated the respondents’ willingness to settle the applicant’s claim by agreeing the applicant receive a sum of $30,000, in addition to her existing entitlement under the will. By letter of 12 September 2018, the solicitor for the applicant indicated his client’s agreement to that course.

8. [8]
   A deed of agreement reflecting the terms of that arrangement was drawn up, which the applicant signed, adding in handwriting:

I am signing this under duress. I have been bullied and treated unfairly. My siblings are stealing from me.

9. [9]
   The deed of agreement was not accepted by the respondents’ solicitors in that form and the applicant refused to sign another copy. The applicant now contends her solicitor had no authority to reach the agreement. She maintains she signed the document as a result of pressure applied to her by her solicitor. The solicitor was given leave to withdraw from acting for the applicant.

10. [10]
    For the respondents, it was submitted the personal circumstances of the applicant are comparable to those of her siblings. The respondents contend it is borderline, whether the terms of the will did not make adequate provision for the applicant, but that in circumstances where the estate is small and would be substantially diminished by the cost of litigation, it is appropriate for the respondents to concede that issue.

11. [11]
    The respondents contend that assuming a further provision for the applicant is justified, the amount suggested is appropriate. The respondents contend that the agreement expressed in the correspondence by the applicant’s then solicitor, should be assumed to have been made ostensibly with her authority and should be regarded as binding. It was submitted no circumstance is made out which would justify, in effect, setting aside that agreement. The respondents concede it is nevertheless a matter for the court to exercise the discretion under section 41 of the Act and, in the circumstances, the court would have regard to the agreement in making that determination.

12. [12]
    In light of events to this point, and the small size of the estate, the respondents opposed any referral for mediation in the event the application is refused. For the applicant, it was argued, as per her most recent affidavit, she did not authorise the agreement purported to have been made on 12 September 2018. The applicant submits that since section 41 of the Act requires the court to exercise the discretion, any agreement does not ultimately have any consequence. The applicant submits the making of final orders now would deprive her of an opportunity to show, in future, she had expended her own resources in making arrangements to care for her mother, after her father’s death. The applicant acknowledged her personal circumstances were similar to her siblings. The applicant submitted the matter should now be listed for hearing.

13. [13]
    There is, as is plain from the above, an issue as regards the agreement reached, concerning the extent to which the applicant should receive additional provision from the estate. The correspondence makes it clear that the solicitor for the applicant believed he was acting with her authority in agreeing to the terms. That much is also clear from his subsequent correspondence with the applicant. The applicant admits she signed the deed of agreement in those terms, but says she did so because she was pressured by her solicitor. The applicant, however, denies she, in fact, gave authority for the agreement.

14. [14]
    I have considered the statements of principle in the High Court decision of Harvey v Phillips (1956) 95 CLR 235, in particular, at pages 242 to 243. In addition, I have had regard to the statements of Fraser JA in Broadbent v Medical Board of Queensland [2010] QCA 352, in particular, at paragraphs 26 to 38. Justice Fraser quoted at length from the passage cited in Harvey v Phillips. In particular, at paragraph 29 his Honour said:

The power to decline to enforce a compromise does not arise where the party who seeks to impeach the compromise expressly authorised a compromise, even if that authority was given after considerable equivocation and under pressure. That is so, provided there is no ground sufficient to render the compromise void or voidable, or to entitle the client to equitable relief. The applicant did not argue that there was any such ground.

15. [15]
    His Honour acknowledged the court’s discretion to set aside a compromise, where to do otherwise would involve injustice. See, in particular, at paragraph 34 of his Honour’s judgment. At paragraph 36, his Honour said this:

In my opinion, the discretion should be exercised with caution and only where it is clearly demanded by the interests of justice. The growth of email and other forms of virtually instantaneous communication has made it relatively easy and commonplace for solicitors and counsel promptly to obtain and act upon express instructions in negotiations to compromise litigation, even where the clients are physically remote from the lawyers. In these circumstances, which differ from those which prevailed when this power in the courts was held to exist, a party to litigation should be able to rely upon the apparent authority of the opposite party’s lawyers to compromise the litigation within the well-known limits of that apparent authority. If the courts too readily disregard compromises of litigation made by the party’s lawyers, the important aim of promoting settlement of litigation will be hindered and resources will be wasted on investigating disputes, which should properly be confined between lawyer and client who, unlike the opposite party, should readily be able to prove whether or not a particular compromise reflected the client’s instructions.

16. [16]
    In this case the solicitor, as was conceded, was seen to be acting ostensibly with the authority to make the agreement. His correspondence of 12 September clearly conveys that. In addition, so too does the resulting correspondence from the respondents’ solicitors and the drawing up of the deed of agreement. The applicant’s solicitor’s subsequent correspondence with the applicant, also confirms the solicitor’s belief as to his authority. The fact of the applicant signing the deed, albeit at the same time registering her protest, seems to me to confirm the solicitor had authority to make the agreement. However, what is incontrovertible is that the respondents were entitled to conclude a valid agreement was reached.

17. [17]
    In all of the circumstances, I conclude the court should proceed on the basis that agreement as to an amount for further provision was reached. In those circumstances, it is not appropriate to further adjourn the hearing of the matter for trial, but instead I should make final orders to dispose of these proceedings. In doing so, I do not see that there is any injustice occasioned to the applicant.

18. [18]
    The test for determination of a claim for further provision was settled by the High Court in Singer v Berghouse (1994) 181 CLR 201, in particular, I quote from paragraph 15 in the judgment. There is this passage:

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.

19. [19]
    Determination of the proper amount should follow what was said in the decision of the High Court in Blore v Lang (1960) 104 CLR 124 and, in particular, I quote from a passage at page 134 to 135 as follows:

20. [20]
    Agreement between the parties, as to an outcome, should be respected by the court in making a determination but that, of course, does not relieve the court of exercising the discretion imposed by section 41. Here the applicant’s circumstances are set out in detail in the material. They can be summarised as follows: the applicant is now 67 years of age. She has assets estimated at approximately $370,000 and does not identify, in her material, any current liabilities. Significantly, she has no superannuation. She does have some medical conditions, including arthritis in her hips and knees, and is medicated for those conditions. She is reliant, for her income, on a pension of $832 per fortnight and $200 per week in rental income, and it is said that that is slightly less than her fortnightly expenses of something just over $1100.

21. [21]
    The applicant’s circumstances here are not materially different from those of her siblings, which are likewise set out in detail in the material, but which I do not need to identify for these reasons. Her siblings, of course, as I’ve already said, also have entitlement under the will. The difference of significance, it seems to me in the applicant’s position, is that she does not have any superannuation entitlement. I acknowledge that her siblings do, to some extent or another, although none of them can be said to be, an extensive entitlement. The applicant has her own accommodation, but will likely need further funds to meet the future contingencies of life. I conclude the terms of the will do not adequately meet her future needs and it is appropriate that further provision is made in that respect.

22. [22]
    Balancing the applicant’s further needs, against the size of the estate, and that agreement as to her extra provision by way of the sum of $30,000 in addition to her existing entitlement was made by the parties, I conclude it is appropriate to make an order in those terms. I have had regard to the conduct of the proceedings in concluding that the applicant should bear her own costs of these proceedings and the respondents’ costs should be met by the estate on an indemnity basis.

Orders

23. [23]
    The formal orders then are as follows:

1. Pursuant to s 41 of the Succession Act 1981 (Qld), further and better provision for the proper maintenance and support in the sum of $30,000 be paid to Annette Isabel May Mason out of the estate of May Evelyn Bell, in addition to the applicant’s existing entitlement under the will of May Evelyn Bell.
2. The applicant bear her own costs of these proceedings.
3. The respondents’ costs of these proceedings be paid from the deceased’s estate on an indemnity basis.

24. [24]
    The respondent seeks an order that the applicant pay the costs on an indemnity basis, at least of the proceedings today, in light of the decision that has been given. As I noted in giving that decision, I had considered the conduct of the proceedings, from the outset, in determining it was appropriate that the applicant pay her own costs of the proceedings and that the respondents’ costs be met out of the estate. Despite the efforts by the respondent to resolve the matter and giving notice that this application for indemnity costs would be made it remains, in my view, appropriate that the applicant meet her own costs and that the respondents’ costs be met out of the estate.

25. [25]
    That, of course, will also have an impact on the applicant, because it will reduce the available funds in the estate and that arises because of the way the proceedings have been conducted. So I don’t make any different order as to costs than as I expressed earlier. I am prepared to make the order concerning the proceedings, the court proceeding with the matter without an order for probate. The orders will include

4. Pursuant to s 41(8) of the Succession Act 1981 (Qld), the application is heard and determined notwithstanding that a grant of probate in the estate of May Evelyn Bell has not been made.