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Tomarra v Tomarra QDC 72
DISTRICT COURT OF QUEENSLAND
Tomarra v Tomarra  QDC 72
SALLY ANN TOMARRA
ERNEST KARL TOMARRA (Executor of the Estate of the late David John Tomarra)
District Court at Mackay
10 May 2019
29 April 2019
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant left with insufficient provision.
Succession Act 1981 (Q) s 41.
Bladwell v Davis  NSWCA 170
Clifford v Mayr  NSWCA 6
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Collins v McGain & Anor  NSWCA 190
Collins v Mutton  NSWSC 548
Ellis v Leeder (1951) 82 CLR 645
Grey v Harrison  2 VR 359
Luciano v Rosenblum  2 NSWLR 65
Manly v Public Trustee of Qld  QCA 198
Marshall v Carruthers  NSWCA 47
O'Loughlin v O'Loughlin  NSWCA 99
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Re Bourke deceased  2 NSWR 453
Re Fulop (1987) 8 NSWLR 679
Singer v Berghouse (No 2) (1994) 181 CLR
Vigolo v Bostin (2005) 221 CLR 191
Yeomans v Yeomans and Anor  QSC 344
Solicitors for the applicant
Macrossan & Amiet for the applicant
- This is an applicationby the applicant pursuant to s 41(1) of the Succession Act 1981 (Q) for adequate provision to be made for her maintenance and support from the estate of David John Tomarra.
- The deceased died on 3 May 2018. He was survived by the applicant (his wife), eight children from his first marriage (including the executor), and five children from the applicant’s first marriage.
- The applicant commenced a relationship with the deceased on 26 September 1991. In about November 1991 the deceased and his five children (from a previous marriage) moved in with the applicant and her youngest daughter, Vivienne.
- The applicant cared for the deceased’s children and raised them until they were adults. The applicant married the deceased on 22 July 1995 and they remained married up until the date of death - namely a period of 23 years.
- On 21 December 2006, the deceased and the applicant purchased a house at 168 McIntyre Street, Calen in Queensland for $230,000. It was purchased in joint names as joint tenants. The funds used to purchase the house were completely provided by the deceased from monies he received from compensation claims. At the time of purchase of the house, the applicant was working as a traffic controller and the deceased was on a disability pension as a result of personal injuries suffered during employment.
- The deceased and the applicant, after the purchase of the house, resided in the home and went halves in rates, groceries and other living expenses. The deceased suffered from health issues. He had a heart attack in 2005. In 2015, he ceased work and received a pension.
- After Christmas 2009, the deceased was drinking heavily and was argumentative. The applicant left home at the beginning of January 2010 and moved to Townsville. After she left the house, the deceased saw solicitors and severed the joint tenancy.
- The deceased then made his last will dated 4 January 2010. In this will he appointed his son Ernest Tomarra as his executor and gave his estate to him.
- Three weeks after the applicant left the house at Calen, the deceased travelled to where she was working at Greenvale and they affected a reconciliation and returned to live together at Calen.
- The applicant ceased work when she was 65 in 2015 following which she received a pension.
- From 2016 until the day of his death, the deceased was on dialysis. She cared for the deceased all of his life, particularly in the later years of his life. He required assistance with domestic tasks. She did the cooking and cleaning and made sure he took his medication. She bathed him and drove him to and from medical appointments. His health deteriorated. She collected his medication and assisted with maintenance of the yard.
- On 1 May 2018 she drove the deceased to the Townsville Hospital so he could obtain a pace maker.
- As to the applicant herself, in 2015 she was diagnosed with gastrointestinal cancer. She underwent surgery to have an intestinal stomach tumour removed at the Mackay Base Hospital on 7 September 2015. She was prescribed chemotherapy tablets and has been undergoing that treatment for three years now. She is required to attend a cancer specialist every six weeks and submit to blood tests. She also suffers from a blockage to her left side kidney.
- She presently lives in the house at 168 McIntyre Street, Calen and owns a half interest as tenant in common with the deceased. Her income is from the Centrelink aged care pension. She has a car worth about $8,000, expenses of about $342.00 per week and has a Commonwealth Bank Loan of $20,000 with $200 repayments every fortnight.
- The estate consists of the deceased’s half interest in the property valued at about $87,000; funeral insurance in the sum of $6,940; a Rodeo ute valued at $1,000 (removed by Ernest); two whipper snippers valued at $100 (removed by Ernest); a mower valued at $300 (removed by Ernest); a guitar valued at $50 (removed by Ernest); an amplifier valued at $50 (removed by Ernest) and a mobile phone valued at $50 (removed by Ernest).
- On 24 May 2018, Ernest attended the residence and removed the above mentioned property. On the same day the applicant received a phone call from Christine Williams (Ernest’s mother) who asked the applicant if she was going to pay rent to Ernest. As a result of these events, the applicant saw her present solicitor.
- She says that if she is forced to leave the property she has no alternative accommodation and has no idea where she could live.
- In her second affidavit, the applicant says she is required to see her doctor every three months concerning the cancer. She underwent a procedure on her left kidney in January 2019. She has scheduled an operation in May 2019 to have a stent inserted.
- Her financial situation has not altered much. She also cares for an 87 year old aunt.
- $4,196 remains unpaid for the deceased’s funeral. The applicant has entered into an agreement to repay this sum.
- The applicant’s legal expenses for this application are in the order of $10,000.
- It is the applicant’s intention to sell the house and use the money received to pay the funeral expenses and relocate to Mackay.
- On 19 March 2019 Judge Richards listed the application for hearing on 29 April 2019 and ordered the respondent file his material by 12 April 2019.
- The respondent failed to file any material.
- Despite this he gave evidence that he did not consider the applicant was entitled to the share to which he was entitled under the will.
Submissions of the parties
- The applicant submitsthat the half interest held by the deceased should be transferred to her. It is stressed no provision was made for the applicant and yet they were married for 23 years. It is stressed the applicant is 69 years old with her only income coming from the aged pension. Whilst the property was purchased by the deceased, the deceased and the applicant went halves in rates, groceries and other living expenses.
- The applicant stresses her ill health and medical needs. She stresses she would be forced to leave the house without the remaining half interest and would have no financial security. She has a life expectancy of 20 years and is of insignificant means. Her present intention is to sell the property as Calen is some 56km from Mackay and it is difficult for her to get medical treatment. She intends to rent in Mackay. If she lived in Mackay she would not require her car.
- It is also stressed that the applicant raised and cared for the deceased’s five youngest children and she cared for the deceased prior to his death.
- In oral submissions it is submitted that the applicant is far older than the respondent. The respondent is only 33 years old and there is no reason he cannot work once released from prison. Also the applicant has a far greater need and moral claim.
- The respondent on the other hand submits he should keep the half interest as it was left to him under the will. He informed the court he is now eligible for parole and his full time release is in January 2020.
Principles to be applied
- Section 41 of the Succession Act 1981 (Q) relevantly provides:
“41Estate of deceased person liable for maintenance
- (1)If any person (the deceased person) dies whether testate orintestate and in terms of the will or as a result of theintestacy adequate provision is not made from the estate forthe proper maintenance and support of the deceased person'sspouse, child or dependant, the court may, in its discretion,on application by or on behalf of the said spouse, child ordependant, order that such provision as the court thinks fitshall be made out of the estate of the deceased person forsuch spouse, child or dependant.
(1A) However, the court shall not make an order in respect of adependant unless it is satisfied, having regard to the extentto which the dependant was being maintained or supportedby the deceased person before the deceased person's death,the need of the dependant for the continuance of thatmaintenance or support and the circumstances of the case,that it is proper that some provision should be made for thedependant.
- (2)The court may—
- (a)attach such conditions to the order as it thinks fit; or
- (b)if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
- (c)refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose 4 circumstances are such as make such refusal reasonable.”
- The court is required to undertake a two stage process.
- At the first stage it must be ascertained whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance and support of the applicant. This is in effect a jurisdictional question. This is to be determined as at the date of death.
- In relation to this first stage, in Singer v Berghouse (No 2)Mason CJ, Deane and McHugh JJ stated:
“The determination of the first stage in the two stage process called for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc 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.”
- This is an objective question of fact to be determined by the judge at the date of the hearing.
- In Re Fulopit was said the relevant factors to be considered in respect of “proper” included:
- (a)the nature and quality of the relationship between the plaintiff and the deceased;
- (b)the character and conduct of the plaintiff;
- (c)the nature and extent of the plaintiff’s present and reasonably anticipated future needs;
- (d)the size and nature of the estate of the deceased;
- (e)the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased; and
- (f)any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.
- In Vigolo v Bostinat  Callinan and Heydon JJ said:
“The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”
- On the issue of “need” Tobias JA in Collins v McGain & Anorat  noted that the question of needs must not be too narrowly focussed. The court must take into account present and future needs including the need to guard against unforeseen contingencies.
- “Proper maintenance” is not limited to the bare sustenance of a claimant. “[It] requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed and mobility.”
- On the question of financial need, the concept is a relative one. It is not necessary for an applicant to demonstrate that he or she is destitute.
- If the first question is answered affirmatively, then the court in exercising its discretion to make provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order.
- In Singer v Berghouse it was said:
“The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which would be made in favour of the Applicant.”
- There can be circumstances where even if the jurisdictional limb is satisfied the court could refuse to make an order e.g. in Ellis v Leeder where there were no assets of the estate from which an order could reasonably be made.
- It should be borne in mind that the court does not have jurisdiction to re-write the testator’s will to make provision which, according to whatever idiosyncratic notions of fairness which one or other of the parties bring to the application ought to have been made.
- It ought to be borne in mind:
“… [i]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else.”
- Each case needs to be determined on its own facts but it has long been accepted that as a general rule a surviving spouse should have a proper level of maintenance.
- In Luciano v RosenblumPowell J at 69-70 observed that: “It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to meet any unforeseen contingencies.”
- I note that whilst it was observed in Bladwell v Davisthat such a general rule might be seen to be inconsistent with Singer’s case (see Bryson JA), ordinarily the needs of a widow would be given primacy (see Ipp JA at  and Stein AJA).
- The Luciano principle was restated in Clifford v Mayr.
- It is true though that this “broad general rule” cannot be applied without modification in every case.
- In my view that which Mullins J stated in Yeomans v Yeomans and Anorat  is correct where her Honour said:
“Such a general statement about a category of applicant for family provision cannot undermine the approach to family provision applications that was analysed and explained in the joint judgment in Singer. There is a danger of not applying properly the two stage process with the different considerations that are required to be examined at each stage, if there is recourse to general statements such as that made in Luciano. Similar observations about caution in applying Powell J’s general rule about widows have been made in Marshall v Carruthers  NSWCA 47 at , Bladwell v Davis  NSWCA 170 at  and Manly v Public Trustee of Qld  QCA 198 at .”
- I accept the applicant’s submissions.
- It is my assessment that the applicant has been left without adequate provision for her proper maintenance and advancement in life. In reaching this conclusion I have had regard to her 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 bounty.
- I take into account the applicant’s medical condition and age. I consider these matters as at the date of death.
- I consider the jurisdictional limit has been met. I now reach the second stage of the determination.
- The court may in its discretion make provision as it sees fit. In doing so, it must take into account the relevant facts as they exist at the time of the making of the order. There is no exact science in determining the amount to be judged.
- Each case depends on its own facts.
- Taking all matters into account it is my conclusion that provision should be made to the applicant from the estate to the extent that the deceased’s half interest should be transferred to her. In my opinion she has significantly contributed to the relationship between herself and the deceased. The tenancy was severed during a brief separation but the two returned to living together shortly after that. It so happens that nothing was done to rectify the deceased’s will provisions after that.
- I also have significant regard to the assistance provided by the applicant to the deceased after they reconciled.
- In reaching this conclusion I have regard to the following:
- (a)The applicant’s needs
- (b)Ernest’s needs
- (c)The length of the marriage
- (d)The relationship between the parties
- (e)The earning capacity of the parties.
- I therefore make the following orders:
- That provision be made for the proper maintenance in support of the applicant out of the estate of David John Tomarra by transfer to her of the half interest owned by the deceased in the house and land at 168 McIntyre Street, Calen being more particularly described as Lot 3 on RP 708420 in the county of Carlisle, parish of St Helens being Title Reference 20349173.
- The Registrar of Titles is entitled to execute the Transfer- Form 1 transferring the interest in the property to the applicant.
- I make no order as to costs.
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494.
(1994) 181 CLR 201 at 209-210.
Singer v Berghouse (No 2) (1994) 181 CLR 201 at 211.5.
(1987) 8 NSWLR 679.
(2005) 221 CLR 191.
 NSWCA 190.
Collins v Mutton  NSWSC 548 at .
Collins v Mutton  NSWSC 548 at .
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494.
Singer v Berghouse (No 2) (1994) 181 CLR 201 at 210.
(1951) 82 CLR 645.
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ.
Grey v Harrison  2 VR 359 at 386 per Callaway JA.
Re Bourke deceased  2 NSWR 453 at 455.
(1985) 2 NSWLR 65.
See also O'Loughlin v O'Loughlin  NSWCA 99 at - per Davies AJA.
 NSWCA 170.
 NSWCA 6 at [142-143].
Marshall v Carruthers  NSWCA 47 at .
 QSC 344.
There is no evidence on this as Ernest did not file material or give evidence of this aside from informing the court as to his custodial situation.
- Published Case Name:
Sally Ann Tomarra v Ernest Karl Tomarra (Executor of the Estate of the late David John Tomarra)
- Shortened Case Name:
Tomarra v Tomarra
 QDC 72
10 May 2019