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Hawkes (as executor) v Smith QDC 45
DISTRICT COURT OF QUEENSLAND
Hawkes (as executor) v Smith  QDC 45
EDRIC NORVAL HAWKES as executor of the Will of ESTHER EVELYN HAWKES-SMITH(deceased)
PAUL THOMAS SMITH
NEREE GAYE LEEUWENDAL
KERRY NIXON HAWKES
GAVIN DAN HAWKES
ALDO ARMSTRONG HAWKES
Application on the papers
District Court at Cairns
22 March 2019
11 April 2019
Morzone QC DCJ
SUCCESSION – FAMILY PROVISION – APPLICATION BY CHILD – where gift of interest in former matrimonial home to husband failed having been sold prior to death for new home - whether the widower is left without adequate provision - whether widower in a necessitous position as to shelter and security of tenure in aging years – whether further provision should be made for the applicant out of the estate.
Uniform Civil Procedure Rules 1999 (Qld).
Succession Act 1981 (Qld), s 41.
Singer v Berghouse (1994) 181 CLR 201.
Jacqui lee Long for the Applicant
Lili Bulyk for the First Respondent
Second, third, fourth and fifth respondents self-represented.
- The applicant applies for final orders in terms of settlement pursuant to a Deed of Settlement dated 13 September 2018 evidencing the agreement of the parties and any interested beneficiaries.
- These are my reasons for orders made on 22 March 2019.
- The applicant is the executor of the deceased’s Will dated 9 August 2010.
- The first respondent married the deceased on 28 April 2001 and was her husband until her death. They did not have any children together. The deceased had five children from a previous relationship, being the applicant (executor) and second, third, fourth and fifth respondents.
- The deceased left a Will bequeathing the first respondent her one half interest in their former matrimonial home, which was sold before her death, as well as all motor vehicles owned by her at the date of her death.
- The parties join in seeking orders reflecting their settlement, to the effect that the first respondent receive the deceased’s half interest in the Pimpama property, and each party will to bear their own legal costs.
- By s 41 of the Succession Act 1981 (Qld) (“the Act”) a spouse of the deceased may make application to the court for adequate provision to be made from the estate for their proper maintenance and support.
- The two stage process by which family provision applications are determined were enunciated in Singer v Berghouse (1994) 181 CLR 201.
- 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 Chalk and 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 Bosch v Perpetual Trustee Co,  AC 463, Lord Romer delivering 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 first respondent is currently 65 years old, and has no previous spouse or children. The first respondent enjoyed a good relationship with the deceased, and her children who have a legitimate claim on the estate.
- His financial position is modest. He received $600 in fortnightly Centrelink benefits until becoming eligible for the age pensioned in January 2019. The first respondent has the following assets worth about total of $521,000 comprising:
- A half interest as tenant in common in the Pimpama property valued at $225,000.
- An ANZ bank account with an amount of $20,000.
- A Suncorp Bank 55 Plus Account with an amount of $6,000.
- LGIA superannuation valued at $270,000.00.
- The assets and liabilities of the deceased amounted to a sum of $796,326.42 comprising:
- A half interest in the Pimpama property valued at $225,000.00.
- A 2011 Honda Accord valued $5000.00.
- Suncorp Bank 55 Plus account with an amount of $2,134.00.
- Public Trustee Common Fund account with an amount of $564,192.02.
- There is no special need of the first respondent beyond the obvious basic need for shelter and security of tenure. That was known or should have been known by the deceased, at least through her attorneys. Given her state and stage of life, the circumstances arise because the Will failed to keep pace with the couple’s changed living circumstances. Whilst the deceased left the first respondent all motor vehicles owned by her at the date of her death, the one half interest in their former matrimonial home in Atherton failed since it was sold prior to death. The first respondent and the deceased’s attorneys sold that property in July 2015. The the sale proceeds were used to buy their home at 14 Goolwa Court in Pimpama where they lived together before the deceased death.
- Clearly enough the deceased’s wishes reflected the intent to consolidate the interest in the couple’s matrimonial home, to facilitate the continuing security of tenure and shelter for the surviving spouse.
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.”
- Further, the resolution of these proceedings has quite properly so provided for the first respondent’s shelter in the former matrimonial home, and security of tenure including his needs for changing or replacing his accommodation in his future life.
- It seems to me that this course will provide for the proper maintenance of the first respondent.
- 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.
- Therefore, pursuant to those orders the compromise resolving the proceeding is approved by the Court. The relevant terms are contained in the deed of settlement and the parties ought carry out the executory matters to put the order in place in accordance with that deed.
- And it is noted that each party will pay and discharge their own costs and outlays in the proceeding.
Judge Dean P Morzone QC
- Published Case Name:
Hawkes (as executor) v Smith
- Shortened Case Name:
Hawkes (as executor) v Smith
 QDC 45
22 Mar 2019