Popoola v Wright[2018] QDC 64

DISTRICT COURT OF QUEENSLAND

HER HONOUR:   This is an application for final orders to give effect to the compromise of a family provision application made under part 4 of the Succession Act 1981 Queensland in the estate of Muyideen Olubiyi Popoola. The applicant is the wife of the deceased and was married to him in Australia from 30 March 1996 until his death on 19 November 2012 in Nigeria. The respondent is the executor of the deceased’s will. The respondents by election are the deceased’s four daughters. The deceased was survived by the applicant and his four daughters. The deceased’s last will was dated 18 August 2006. Probate was granted in Western Australia on 1 July 2014. By way of background, the deceased and the applicant met in Nigeria in 1994 and underwent a formal introduction and engagement before becoming husband and wife according to Nigerian custom.

In October 1995, the applicant joined the deceased in Australia, and they were married in Australia on 30 March 1996. They lived together as a family with the children throughout the marriage until the deceased was murdered during a trip to Nigeria in 2012. The deceased and the applicant shared the same bed up until the deceased’s death; however, their sexual relationship ceased in 2009.

Notwithstanding that, the applicant fulfilled the role of the caregiver to the deceased and the children throughout the entire period of their marriage. She also contributed financially and continues to do so and works as a nurse. When they married, the deceased had a child from an earlier relationship, Sade, born on 23 March 1990. Sade lived with the deceased and the applicant as a family, and the deceased and the applicant went on to have three children together:  Tayo, born on 4 July 1996, Lola, born on 27 February 1999, and Lara, born on 31 May 2001. The youngest, Lara, is currently 16 years old and attends high school in Cairns. The other children are now adults. Sade is now 27 years old, and Tayo is 21 years old. They both attended university in Brisbane and are now employed. Lola is a student at university in Brisbane and consents to being Lara’s litigation guardian.

Pursuant to the will dated 18 August 2006, the deceased appointed the respondent, his friend, as executor and trustee. Under the terms of his will, the deceased essentially left the whole of his estate to be divided equally between his four daughters. He made no provision at all for the applicant. The gross value of the deceased’s estate at the date of his death was approximately $550,000. The significant asset in the estate is a house at 8 Dolphin Close, Kewarra Beach and a Sunsuper fund. The net estate is currently valued at $398,405.55. So it is a modest estate.

On 15 August 2013, the applicant filed an originating application pursuant to section 41 of the Succession Act 1981 Queensland seeking adequate provision to be made for her proper maintenance and support from the deceased’s estate. No other eligible applicants have applied under section 41 of the Act.

Section 41 of the Succession Act 1981 Queensland relevantly provides that if a person dies, and in terms of the will, 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, order that such provision as the Court thinks fit shall be made out of the estate of the deceased person.

As the applicant is not seeking to be awarded provision from an estate with a value over $750,000, I am satisfied that this Court has jurisdiction to make an order pursuant to section 68(1)(b) of the District Court Act 1976 Queensland.

The determination of family provision claims involves a two-stage process in accordance with the well-known principles outlined in Singer v Berghouse (No 2) [1994] 181 CLR 201. At 208, the Court said that:

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.

That two-stage process was confirmed in Vigolo v Bostin [2005] 221 CLR 191 at 197.

The issue of quantum is judged according to prevailing community standards of what is right and appropriate at the time of trial: White v Barron (1980) 144 CLR 431 at 440. I have also had regard to the principles outlined by Justice Dalton in Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 to this effect:

[24]The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed … a person cannot by contract exclude the jurisdiction of the Court to make a family provision order. 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.

That statement was approved by the Court of Appeal in Abrahams v Abrahams [2015] QCA 286 at paragraph [30].

The additional complication in this matter is that both the originating application and the resolution of it, which is the subject of a subsequent application, involve and affect the interests of a minor, Lara Popoola. The usual practice where a minor is a party to compromised proceedings such as here is to seek the sanction of a Court of appropriate jurisdiction. That practice derives from the fact that Uniform Civil Procedure Rule 98 is expressed in terms of the ineffectiveness of any settlement or any compromise of proceedings where a party is a person under a legal incapacity. A person under a legal incapacity is defined to include a person under the age of 18 years.

What is therefore sought, in addition to relief pursuant to section 41, is that pursuant to section 59(1) of the Public Trustee Act 1978 and rule 98 of the UCPR, the Court sanction for the better provision for Lara Roslyn Popoola who is currently 16 years old. For the purpose of sanction or approval of the settlement or comprise, under UCPR rule 98, the function of the Court is to ensure that the settlement is in all the relevant circumstances reasonable and for the benefit of the person under legal disability. Another way of putting it, is that it is in the best interests of the person under the legal disability.

The applicant is a 50 year old woman. She was born in Nigeria. She met the deceased in 1994. They married in 1996. They had three children together. He had a child from an earlier relationship. They lived with the four children as a family in the same house all their married life. There was no period of separation. The applicant’s financial position is extremely modest. Her assets total $105,000 in value. She has weekly income from Centrelink and a part-time job as a nurse with Queensland Health. She has significant liabilities and is currently caring for the two younger children on her own.

She was the caregiver for all four of the children including the deceased’s child from an earlier marriage who was raised in the family home from six years of age. She clearly made domestic contributions and contributions to child raising as well as financial contributions during the course of the marriage. There is no evidence of disentitling conduct on the applicant’s part, and none is raised by the executor.

I am satisfied that there is a basis for making the application. No provision was made for the applicant in the deceased’s will at all. The deceased failed to provide proper maintenance and support for the applicant who was his wife over a very long period of time and the mother of three of his four children and who raised all of his children. There is no doubt that the applicant has a need and a moral claim. In the circumstances, the requirements of the Act are made out, and the jurisdiction of the Court is clearly enlivened.

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 a significant factor.

In the normal course of events, the applicant’s claim would have been litigated at trial. However, all of the parties including the applicant, the executor and all of the respondents by election including the litigation guardian for the respondent by election who is still a minor have reached an agreement and applied to the District Court pursuant to UCPR rule 98 for the Court to approve that compromise pursuant to section 59.

The terms of the compromise are reflected in a deed which was made on 5 July 2017. In broad terms, the effect of the compromise is that the applicant receives approximately 70 per cent of the residuary estate comprising the house or, rather, the family home with its mortgage and the balance 30 per cent is divided equally between the four children. The applicant will take over the mortgage, and ownership of the property will be transferred to her. The estate’s other liabilities will be paid from the superannuation. In dividing the residuary estate between the four children, the greater allowance is made for the two youngest children who have greater educational related costs, one being still at high school and one at university.

Consistently with practice relating to applications for sanction, the Court was provided with and has been assisted by a copy of the opinion of counsel in relation to the compromise.

All of the necessary parties have been notified and are parties to the proceeding and have all agreed to the compromise.

Once the jurisdictional question is satisfied, considerable weight must be given to the compromise and the circumstances would be unusual, indeed, for the Court to override the agreement of the parties who are of full age or, in the case of where one is a minor, where the litigation guardian also seeks the sanction of that settlement and where there is no evidence of undue influence at work in the reaching of the agreement.

The relatively small size of the estate and the extent to which it would be depleted by further legal costs if the application were further defended are clearly important circumstances. I am satisfied that it is a reasonable conclusion that it is in the interests of the minor, Lara Popoola, to seek to limit the potential impact upon her entitlement under the will. Lola Popoola as litigation guardian for Lara Popoola seeks sanction of the settlement and orders for the public trustee to administer the moneys. Those orders seem to me to be appropriate in all the circumstances.

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

I am further satisfied that the compromise of this claim on that proposal is also to be reasonably regarded as in the minor’s best interest and is appropriate in all the circumstances.

Finally, I am otherwise satisfied that the litigation guardian and her legal advisors have acted appropriately and cognisant of their significant duty in the protection of the interests of the minor.

I will make the order in terms of the draft order as amended, initialled by me and placed with the papers.