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Baker v Baker[2019] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Baker [2019] QDC 92

PARTIES:

KENNETH NOEL BAKER
(first applicant)

and

MARK KENNETH BAKER
(second applicant)

v

WAYNE NOEL BAKER and HAYDEN KENNETH BAKER as executors of the will of GWENDA DAWN BAKER (deceased)
(respondents)

FILE NO/S:

D3793/17

DIVISION:

 

PROCEEDING:

Family provision application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 June 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

15, 16 April 2019

JUDGE:

Judge McGill SC

ORDER:

Order that provision be made from the estate of the deceased for the first applicant, KENNETH NOEL BAKER, in the sum of $200,000, and for the second applicant, MARK KENNETH BAKER, in the sum of $75,000. 

Order that the specific bequests in clause 6(b), (c), (d) and (e) of the will be exonerated under s 41(4), and under s 41(3) that otherwise the orders for provision fall first on the share of the respondent HAYDEN KENNETH BAKER, and then rateably on the balance of the estate. 

Adjourn the question of costs to 14 June 2019. 

CATCHWORDS:

TESTATOR’S FAMILY MAINTENANCE – Application of spouse - estate to son and grandson – small estate – whether need shown – strength of competing claims to bounty – significance of quality of relationship – provision ordered. 

TESTATOR’S FAMILY MAINTENANCE – Application of adult son – estate to sibling and grandson – small estate – whether need shown – strength of competing claims to bounty – whether disentitling conduct – provision ordered. 

Succession Act 1981 s 41. 

UCPR r 430, r 435(10), (11), (12), r 700A. 

Albury v Sammut [2019] QSC 105 – cited.

Anderson v Teboneras [1990] VR 527 – cited.

Blair v Blair (2014) 10 VR 69 – cited.

Clifford v Mayr [2010] NSWCA 6 – cited.

Collins v Mutton [2012] NSWSC 548 – cited.

Re Davies [2014] VSC 248 – cited.

Foley v Ellis [2008] NSWCA 288 – cited.

Freeman v Jaques [2006] 1 Qd R 318 – applied.

Frey v Frey [2009] QSC 43 – cited.

Larke v Nugus [2000] WTLR 1033 – considered.

Marks v Marks [2003] WASCA 297- cited.

Palmer v Dolman [2005] NSWCA 361 – cited.

Singer v Berghouse (1994) 181 CLR 210 – applied.

Re Sinnott [1948] VLR 279 – not followed.

Smith v Johnson [2015] NSWCA 297 – cited.

Stewart v Stewart [2015] QSC 238 – followed.

Vigolo v Bostin (2005) 221 CLR 191 – applied.

Warriner v Warriner [2015] VSC 314 – considered.

White v Barron (1980) 144 CLR 431 – applied.

COUNSEL:

RD Williams for the applicants

AM Laylee for the respondents

SOLICITORS:

James and Co Lawyers for the applicants

CSG Law for the respondents

  1. [1]
    This is an application for provision under s 41 of the Succession Act 1981 (“the Act”).  Gwenda Dawn Baker died on 20 March 2017, at the age of 76.  She was survived by her husband, the first applicant, known as Noel,[1] and two sons, the second applicant (Mark) and the first respondent (Wayne).  Wayne has two children, while Mark has three, one of whom is the second respondent, Hayden.  By her last will dated 2 February 2017, she appointed Wayne and Hayden as her executors, gave specific legacies of $10,000 each to Wayne’s two children and a niece, gave any motor vehicle which she owned to Hayden, and divided the residue between Wayne, Hayden and Wayne’s two children.
  1. [2]
    The will also provided that her executors sell her principal place of residence, and hold the net sale proceeds “in the event my husband [Noel] survives me and still resides with me, to give $10,000 to him to contribute towards a nursing home bond and I request that my executors arrange nursing home care for him” but otherwise to pay three quarters of the proceeds to Wayne and one quarter to Hayden. There was debate before me as to whether this provision took effect. The gift to the husband did not, for two reasons: because as at the date of her death Noel was not residing with her, and because as at that date she did not own a principal place of residence.
  1. [3]
    She had sold by an unconditional contract the house in which she had been living,[2] and had moved out of that house with some personal effects into the house of Hayden and his partner, while the balance of her furniture and effects were placed into storage.  I consider that that house had ceased to be her principal place of residence, as she had vacated it with a view to disposing of it by sale, and had therefore ceased permanently to reside there.  Her intention was to move to another house, and she had signed a contract to purchase a house,[3] which had not become unconditional before her death; it had not then settled, and she had certainly not taken up residence in that house, so it had not in my opinion become her principal place of residence.[4]  Accordingly, at the date of her death she had no “principal place of residence” to be sold and for the proceeds to be dealt with as provided in clause 6(f) of the will.[5]  In the event therefore no provision was made under the will for Noel, or for Mark.
  1. [4]
    By an originating application filed 6 October 2017 the applicants sought adequate provision for their proper maintenance and support out of the estate of the deceased. The application has been opposed by the respondents, in whose favour a grant of probate was made by the Supreme Court on 16 June 2017. On 11 May 2018 another judge ordered by consent that the respondents file and serve one or more further affidavits containing the information and exhibiting copies of the documents requested by the applicants’ solicitors in certain letters, and that the affidavits filed by the parties as at 11 May 2018, together with such further affidavits as were filed and served in accordance with that order, constitute the parties respective evidence-in-chief at trial, with no further affidavits to be filed by any of the parties without the leave of the court. Further, the evidence of Noel was to be given by video-link with cross-examination to be not more than one hour. Despite this order, a second affidavit of Wayne, and an affidavit of his former wife Dianne Baker, were filed on 11 June 2018, and an affidavit of the niece was filed on 25 June 2018. No leave was sought, or given, to rely on these affidavits, but no objection to their being read was taken on behalf of the applicants: p 87.[6] 
  1. [5]
    One of the features of all the affidavits, as is usual with applications under s 41 of the Act, is that they are replete with hearsay. Indeed each concludes with the formula “all the facts and circumstances above deposed to are within my own knowledge, save such as are deposed to from information only, and my means of knowledge and sources of information appear in this affidavit.” This formula is conventionally used in an affidavit within UCPR r 430(2), which allows hearsay, but this sub-rule does not apply to an affidavit for use in an application for final relief. On the hearing of an application under s 41, which is what I have done here, I am hearing an application for final relief. In those circumstances r 430(1) applies, and “an affidavit must be confined to the evidence the person making it could give if giving evidence orally.” In other words, no hearsay.
  1. [6]
    For an affidavit read on the hearing of a family provision application to conclude with the formula cited above is tantamount to placing a large red sticker on the affidavit, saying “This document has not been prepared in accordance with the rules.” The fact that this rule is widely ignored with applications under s 41, for reasons that are by no means clear to me, does not make the evidence admissible. My approach in these matters, as I said at the hearing, is to disregard all hearsay in affidavits whether or not it is objected to. Perhaps if courts applied more vigorously the sanction in r 430(3) there would be less hearsay cluttering up affidavits in these matters. 
  1. [7]
    No doubt one of the reasons why legal costs in family provision applications are excessively high is that too much effort is applied to generating, and responding to, inadmissible material in affidavits. I might add that, apart from the obvious hearsay, it emerged during the cross-examination of Wayne that some of the material stated as positive fact in his affidavit was actually hearsay.[7]  In other words, the statement that the sources of his information appeared in his affidavit was, in his case at least, false. 

First applicant

  1. [8]
    Noel was born in August 1939 and is now 79.[8]  He and Gwenda married on 22 October 1960.  They remained married at the date of her death.  Noel had purchased a block of land in 1958, on which a house was built and in which they lived from 1963.  By 1989 the house was fully paid off.  In 1988 Gwenda commenced a proceeding in the Family Court for a property settlement.  By that time it was possible to have such an application without a divorce.  On 28 November 1989 an answer and cross application was filed on behalf of Noel.  He proposed that the house be sold, his debts be paid from the proceeds[9] and the balance divided, with Gwenda to receive an extra $13,000.[10]  The parties would otherwise retain their existing property.  Noel’s case included that his income was the principal source of funding for the family, and that the parties cohabitated to November 1987, and from March 1988 until March 1989.  At that stage his assets consisted of the former matrimonial home, a car, and a superannuation fund entitlement with a current balance of about $26,000.  He worked as a foreman for the local authority.
  1. [9]
    An affidavit by Gwenda was filed in the Family Court on 26 September 1989.[11]  In it she confirmed that throughout the marriage the day to day living expenses were met from Noel’s wage, while her income was saved for large purchases or home improvements, of which a number were undertaken.  She said that she was working at least on a part-time basis from about 1971, and was continuing in fairly regular employment, though on a casual basis.  She said in the affidavit that the marriage had been unhappy for some time and that the parties had separated for about four months until March 1988, at which point they were reconciled and resumed the marriage.  However in March 1989 she told her husband that the marriage was at an end, and since that time “we have lived separately and apart under the one roof.” 
  1. [10]
    On 7 August 1990 a consent order was made in the Family Court under which the husband transferred the house property to the wife in return for a payment of $20,000, and the wife retained the furniture and contents of the former matrimonial home, but otherwise the parties retained their own respective property.[12]  Further, an order for maintenance in favour of the wife made in the Wollongong Local Court on 30 October 1989 was discharged, on the basis that part of the value in the house the husband was transferring to the wife represented a lump sum maintenance payment.  It was recited that the parties intended that the making and implementation of these orders should constitute a final resolution of all financial matters between them.[13]  The order also provided for the husband to vacate the former matrimonial home.[14]
  1. [11]
    Noel said that a short time after the property settlement Gwenda asked him to move back in with her, and he did so: p 46. He maintained that thereafter they resumed their relationship. They held a joint bank account, slept in the same bed and went on holidays and outings together: p 61, 62. It is common ground that not all that long after the Family Court order was made the parties resumed living in the same house, though the respondents contend that in substance they again lived separately under the one roof. When she made her last will Gwenda signed a statutory declaration which said she took Noel back to live in the house again after he had a stroke, which she said was a few months after the order in the Family Court.[15]  On the other hand, Noel said that the stroke was suffered in 1993, three years after the order.[16]  The position does seem to be that they were only separated for a period of a few months, and I accept Noel’s evidence that they had resumed cohabitation before he suffered his stroke.[17]  Thereafter Gwenda cared for Noel until January 2017.
  1. [12]
    The respondents maintained that there was not a good relationship between Noel and Gwenda, and read a good deal of material, most of it inadmissible, with a view to establishing this. There was evidence that they argued a lot, but that is not unusual behaviour in the case of married couples. The submission was that Gwenda took him back out of pity after he had his stroke, but I do not accept that that was the timing. Noel said they slept in the same bed, which seems surprising unless Gwenda retained some affection for him.[18]  In time they moved to another house and then to a series of houses, all in her name, the last at Wondunna, a little to the south of Torquay.[19]
  1. [13]
    There is an alternative explanation, that Gwenda was finding living on her own earnings less comfortable than when they were sharing their combined income, and took Noel back essentially for mercenary reasons.[20]  I expect that after he had his stroke Noel was receiving a disability pension, and Gwenda was receiving a carer’s pension.  More recently both received an aged pension, paid into a joint account under the control of Gwenda, and I suspect that applied also to the earlier pensions. 
  1. [14]
    When Noel was paid his superannuation money after his stroke, initially Wayne was lent some money, but when that was repaid, a property on Russell Island was purchased: p 46; p 77. It is not clear whether this earned income; it cost money to own and to maintain, and Noel said that it was sold at the instance of Gwenda, who said it was costing too much money. From the proceeds in 2015 each grandchild was given $1,000, $100,000 was provided to Mark on the basis that he could have the income from it, but it was to be returned if required, $40,000 was put on term deposit in the name of Noel, and $18,500 in cash was put into a safe where they were then living: p 77. There was also a term deposit of $60,000 in a joint account, which was either part of the proceeds of the sale of the Russell Island property, or represented part of the superannuation payment.[21] 
  1. [15]
    It may be that Noel became more difficult to look after as he became older, but it may be as well that Gwenda’s capacity to care for him effectively declined as she aged. Noel in his evidence did refer to some decline in her mental health,[22] which no doubt is to be expected with age, and I expect the same would be the case with her stamina.  Ultimately Gwenda essentially dumped Noel at the Hervey Bay Hospital.[23]
  1. [16]
    This could have been seen as a way of getting him into appropriate nursing home care, if she was unaware of how to organise that herself, or was incapable of arranging it herself, or could not be bothered doing so, but it does seem strange behaviour, particularly in circumstances where she continued to visit him.[24]  I do not have the benefit of any medical evidence about the state of Noel at about this time,[25] or for that matter about the state of Gwenda.  There is evidence, particularly in the contents of the statutory declaration, and in some of Gwenda’s other behaviour, which appears to be inconsistent with her past behaviour, and suggests that her mind was not functioning as well as it used to.  That could explain why she was finding caring for Noel more of a burden, and perhaps a burden which had become beyond her.  If so, that would provide a plausible explanation for her actions.  It also seems strange that if she had no affection for Noel she would have put up with him for a quarter of a century, and visited him while he was in hospital.
  1. [17]
    Noel’s explanation for the Family Court proceedings was that Gwenda was concerned that he was going to gamble away their money, and for that reason wanted to get title of the house in her own name.[26]  If Noel was inclined to gamble when younger, it does not seem to have caused them much financial hardship, so he could not have had much of a problem.  This would be consistent with a somewhat mercenary attitude on the part of Gwenda, or she may just have disapproved of gambling.  It does appear that subsequently she accumulated more assets, although the extent of her estate declined somewhat in the 12 months prior to her death.[27] 
  1. [18]
    Overall I suspect that the real situation was that Gwenda did retain some genuine affection for Noel, though she presented to the world as someone who was nobly sacrificing herself to cope with the terrible burden of caring for him. In any case, given the history of legislation of this nature, it would be difficult to accept that in some way the obligation to make provision for a spouse in a will was conditioned on a close and loving relationship between them. I expect there was no need for statutory interference in those wills made by testators who had close and loving relationships with their spouses; the concern of the legislature was that spouses (and children) who ought to have been properly provided for by testators would be left without proper provision precisely because the testator did not love them and was indifferent to their welfare.[28]  What matters therefore in the case of a spouse in particular is not so much the quality of the relationship, particularly on the part of the deceased, but the existence of need or other moral claim on the part of the spouse. 
  1. [19]
    On the day Gwenda died (20 March 2017) Noel was a patient at the Maryborough Hospital. He had at that time nowhere to live. No arrangement had been made for his accommodation in a nursing home, and a few days earlier the contract Gwenda had signed for the sale of the property in which he had previously been living with her became unconditional. His pension was being paid into a bank account under the control of Gwenda: p 48. The assets he had, apart from his personal effects, were a term deposit of $27,000, and $100,000 held on his behalf by Mark.[29]  The term deposit of $60,000, funds which originated in a superannuation payment made to him after his stroke, and which had been in a joint account of Noel and Gwenda, had all been transferred by Gwenda to her own bank account on 20 February 2017.[30]  This was done without the knowledge and consent of Noel, and the money was subsequently applied by Gwenda for her own purposes.[31] 
  1. [20]
    Accordingly, for all practical purposes, as at the date of Gwenda’s death Noel had no home[32] and insufficient money to provide for one, and was unable to work or even in a practical way to access his pension.  It is quite clear to me that he has shown need at that time.  Apart from that, it seems to me that there was a moral claim, on three bases.  First and most obviously, because of the taking of his money from the term deposit.  Second, because Gwenda had ceased to provide a home for him notwithstanding that she had done so for the previous quarter of a century, and without making any proper arrangements for alternative accommodation for him. 
  1. [21]
    Finally, Gwenda had been in control of his income throughout that period. As will be apparent, her financial position improved considerably over that period but there is no evidence that anything accrued to Noel from their income during that period. Insofar as the arrangement between them, living together and combining their incomes, was financially advantageous, the benefit of that appears to have accrued entirely to Gwenda. It is impossible to quantify this of course, and bearing in mind the size of the estate, there would be no point going to the trouble and expense of attempting to do so; but I do not doubt that there was some real contribution in that way to Gwenda’s estate, and that also in my opinion gives rise to a moral claim.
  1. [22]
    Overall, there was in this case a serious failure on the part of the deceased to make proper provision for her husband by her will. Even if the gift of $10,000 had taken effect, that in my view would still have been wholly inadequate, and there would have still been a serious failure to make proper provision by the will.
  1. [23]
    Wayne said that soon after Gwenda’s death he had to organise accommodation for Noel who was about to discharge himself from the hospital without anywhere in particular to go, and he placed Noel in a seniors village in Maryborough, evidently a low care facility.[33]  From there Noel ended up in Maryborough Hospital after a fall, and Mark then arranged other nursing home care for him, a high care home at Hervey Bay, where he remains currently.  Mark has acted as a guarantor for the Residential Care Agreement.[34]  Under that agreement the guarantor is liable to pay the fees and charges payable by Noel when they are due if they are not paid by him, although the guarantee will be discharged if a refundable accommodation deposit of at least 50 per cent of the maximum accommodation price is paid to the approved provider, or if there is an alternative security by way of equitable mortgage accompanied by a loan agreement for not less than the maximum accommodation price.  The agreement identifies the maximum accommodation price at $320,000.  Under the agreement the resident pays a basic daily fee, usually 85 per cent of the age pension, together with a means tested care fee, which is an amount which will be determined by Centrelink.[35]
  1. [24]
    The agreement provides that if Centrelink or the Department of Health determine that Noel cannot meet charges for his accommodation no such charge is payable. The Aged Care Act 1997 contains in s 44.22 a formula for working out the means tested amount payable by a care recipient.  This takes into account both the care recipient’s total assessable income on a yearly basis, and the value of the care recipient’s assets. The provisions are complicated, and it is not possible for me to work out myself just what the effect of them would be on any particular level of financial assets held by Noel; nevertheless, obviously the determination of the relevant amounts will be affected by any provision made for Noel as a result of this application.
  1. [25]
    Under the agreement, an accommodation payment or accommodation contribution may be made by way of daily payments, a refundable deposit, or a combination of both. There is however, a restriction on the amount of the refundable deposit, in that the amount paid must leave Noel with at least the minimum permissible asset value, defined in the Act as 2.25 times the basic age pension: s 52J.5.[36]  The care agreement does not specify the refundable accommodation deposit amount.  If there is a combination of a daily accommodation fee and refundable deposit, the care agreement schedule sets out the amounts payable in combination, and it appears that in that situation by clause 9.3 the daily payments are to be deducted from the amount of the refundable deposit paid.  The agreement at the moment in the information schedule identifies a daily accommodation contribution of $7.47 and a refundable accommodation contribution of $47,172.15. 
  1. [26]
    Included in the evidence was a letter from someone at the aged care home where Noel now lives advising that Noel had been assessed by the department as “low means”, which meant that he did not currently contribute to any accommodation costs.[37]  This sets out an asset threshold of $47,500 and an income threshold of $26,176.80 per annum.  The letter goes on to say that if the assets went above $165,271.20, or his income exceeded $26,660.40, he would be required to pay the full cost of the accommodation and be classified as a self-funding resident.  If the assets were less than that amount, but more than $48,500, he would be required to contribute towards the cost of his accommodation.
  1. [27]
    The room he is currently in is said to be valued at $300,000, so presumably that would be the amount of the refundable accommodation deposit payable. If his assets were less than $300,000 plus the minimum asset amount, he would not be able to pay the full amount of this, in which case some daily accommodation contribution would be required. They also advised that there are other rooms available in the facility for which a greater amount is payable, up to $360,000. I am however not confident the contents of this letter are reliable. It is difficult to believe that, at an income level of $26,660.40, he is not required to contribute to his accommodation costs, but that if his income exceeded that amount, he would be required to pay the full cost of the accommodation, which read literally is one of the things said in the third paragraph.[38]  That also does not seem to me to be consistent with the provisions of the Act that I have looked at, so far as I can follow them. 
  1. [28]
    There is the further complication that the original assessment undertaken on Noel was undertaken without the benefit of full information about his financial position. There was no disclosure of the term deposit that he retained of $27,000, and the amount of $100,000 held by Mark on his behalf since 2015. On that basis his assets were in excess of $48,500, though they have since substantially declined, largely as a result of the payment of legal fees. On the basis of a letter in evidence, by May 2018 Noel’s assets were below $48,500.[39]  I assume therefore that at the moment the position remains that Noel is a fully supported resident.  In such a situation the Commonwealth Government pays for his care, and gives him 15 per cent of the aged pension as pocket money.  The position of Noel at the moment is analogous to that of a person in a government institution.
  1. [29]
    It is true that at one time the view was held that persons who were institutionalised and cared for by the state did not have any need for provision under a will, but since at least 1948 the position has been that provision will be refused to such a person only if the situation is such that any benefit provided will go only to relieve the public revenue.[40]  This position is now well established, and it is commonplace for applications to be made on behalf of persons who are institutionalised, usually by the Public Trustee as administrator of their property, where wills are made excluding them from benefit on the ground that they are being cared for by the state.[41]
  1. [30]
    When such applications have come before me for sanction, they are usually supported by an affidavit by some suitably qualified person giving details of the needs of the applicant, and how those needs could be met in a way which would provide some additional benefit specifically to the applicant. I must say it would have been of considerable assistance to me in the present case if some person having some expertise in the financial issues arising in this situation had given evidence as to the impact on Noel’s position of various amounts and forms of provision from the estate, and how things could be structured to maximise the benefit to him of an award. In the absence of such evidence, I will just have to do the best I can on the basis of the information provided, and what I have been able to gleam from the legislation.
  1. [31]
    My clear impression is that he would be better off with money than without it, and that making some provision in his favour from the estate will not result in the whole of the benefit accruing to the Commonwealth. I should say that I do not understand that it is necessary for me to limit the provision in a way which would prevent any benefit accruing to the Commonwealth; rather provision is excluded only if no benefit will accrue other than to the Commonwealth.[42]
  1. [32]
    In his first affidavit, Noel identified a number of things that he needs to spend money on, clothing, haircuts, medication, phone bill, taxi fares, cigarettes, confectionary, outings and payments to a funeral plan: para 21. He is also in need of surgery for stones which are troubling him and for which he does not have cover by private health insurance, and would benefit from an electric wheelchair and a lifting chair to assist him to stand up after he has been sitting down.[43]  He is not strictly confined to a wheelchair, and while he was living at home and was able to get regular exercise he was able to do without one, but since he has been hospitalised and living in a home, his condition has deteriorated so that he does normally use one to get about.  In an up to date statement of financial circumstances (Exhibit 2) his monthly expenditure is a little more than his monthly pension income, most of which goes on the payments to the home.  It seems to me that all of these matters are reasonable matters to take into account in terms of proper provision for him from the estate of the deceased.
  1. [33]
    In the statutory declaration signed on the day she made her will, Gwenda recited that she had been advised that Noel and Mark had a right to make a claim against the estate under the Act,[44] and continued:

“25 years ago I took [Noel] to court to save my house due to his gambling.  At this point he had a stroke and I have cared for him since.  At this time our financial relationship was separated and has remained so ever since.  Noel is financially secure in his own right.  I understand I’m not a beneficiary of Noel’s will and do not wish to benefit from his estate.  Although I care for him, we do not have a shared life, we do not socialise together and there is no longer any love between us.”

  1. [34]
    It was not correct to say that she took him back only after he had his stroke, or that their financial relationship had remained separated ever since the family court order; they had for a long time received Commonwealth benefits paid into a joint bank account which was under the practical day to day control of Gwenda,[45] and money which was part of the proceeds of Noel’s superannuation was in a joint account between them: Exhibit 9.  The proposition that Noel was “financially secure” in his own right was fanciful, in my view.  It is true that Noel had a will, made years earlier, in which she was not a beneficiary.[46]  I expect that that was because, by the time that will was made, she, unlike Noel, was financially secure.  The declaration is evidence of its truth,[47] but is so clearly inaccurate that I place no reliance on it.

Second applicant

  1. [35]
    Mark is the second son of Gwenda and Noel, and is now 54.[48]  He married in 1988 and they have three children, a son aged 29 and twins, one of whom is Hayden, aged 25.  Mark suffered an accident in 1983 which injured his lower back, and a later injury to the lower back, which together have caused chronic pain preventing him from working since 1994.[49]  Since that time he has been in receipt of a disability pension.  His wife also receives a pension; she was in part time employment from 1990 to 1994, and thereafter did some casual work up until 2014.  Their daughter lives at home and is dependent on them.  They own their own home which is unencumbered, but have only limited other assets, a term deposit of $140,000 and a motor vehicle worth $33,000.  His wife has a small superannuation balance of $33,000; he has effectively no superannuation.  They seem to me to be in modest financial circumstances. 
  1. [36]
    Mark said that he assisted Gwenda in various ways over the years, particularly in connection with the purchase or construction of houses, relocating, and house and yard maintenance.[50]  He and his wife had also assisted Gwenda in around 2008, when she was helping Noel’s cousin, who had a leg amputation and then had to move into care.  This assistance extended to helping her arrange the sale of the cousin’s house, and emptying and cleaning the property.  He said he received $10,000 from her for this, after she received a legacy when the cousin died, in 2008.
  1. [37]
    In the statutory declaration Gwenda claimed that she had made adequate financial provision for Mark during her lifetime and that further provision would disadvantage the beneficiaries named in her will unfairly. She said that “I sold him my house which was valued at approximately $700,000 for $500,000, I purchased for him a new boat and trailer which cost approximately $95,000 and over the years have gifted him in the vicinity of $150,000 cash.” Mark in his affidavit said that the house was purchased for $550,000, which was in accordance with a real estate agent’s appraisal; he exhibited an appraisal from a Hervey Bay real estate agent dated 24 May 2014 appraising the value of the property at between $540,000 and $560,000.[51] 
  1. [38]
    The appraisal is not a one line document, but contains details of other sales in the area and a description of the property, and comments on the current market, noting that because of the GFC the demand for property of that kind had declined since it was purchased by Gwenda in September 2010 for $610,000. That document is simply evidence that a real estate agent gave that appraisal at that time, but the existence of the document provides support for Mark’s evidence that the property was sold to him and his wife for what was said at that time to be market value. There was also a settlement statement which demonstrates that the amount paid was $550,000 (subject to the usual adjustments on settlement). No document has been produced which would demonstrate a rational basis for the value of $700,000 stated in the statutory declaration;[52] the price stated of $500,000 was just wrong.
  1. [39]
    Also wrong was the reference to the purchase of a boat and trailer for $95,000. A copy of the purchase agreement dated 10 October 2009 in favour of Mark demonstrates that he purchased a particular boat, with an outboard motor and a trailer for a total of $43,000.[53]  That supports the proposition that the price quoted in the statutory declaration was wrong, and in the circumstances I accept Mark’s evidence that only $5,000 of the actual purchase price was paid by Gwenda.  There is no objective evidence to support the assertion of large cash gifts.[54]  Apart from the fact that the statutory declaration suggests that Gwenda’s mind or memory were failing (unless she was just lying), this shows that the reasons given by Gwenda for omitting Mark and severely limiting Noel in any provision under her will were not factually correct.  There is authority that if a person is excluded from benefit under a will on grounds which are not factually correct, that supports the making of an order for provision under a statute of this nature.[55]
  1. [40]
    The statutory declaration also contained a statement about the background to the hostility between Hayden and Mark, but this was obviously hearsay and is therefore inadmissible under s 92 despite the fact that Gwenda is deceased. It is however evidence of her motivation in not making provision for Mark.[56]  The position appears to be that she disapproved of the attitude of Mark and his wife to Hayden’s relationship with Mr Oldfield, because of which Hayden had severed his ties with his parents.[57]  This led to her inventing excuses for cutting Mark out of her will. 

Size of the estate

  1. [41]
    At the date of death the assets of the deceased, so far as is disclosed by the evidence, consisted of the house which she had contracted to sell for $528,500, money in various bank accounts totalling $153,515.64, the deposit she had paid on the purchase of the new property and monies held by her solicitors, $13,280.75, a motor vehicle, some jewellery,[58] her household furniture and effects, and clothing and personal effects.[59]  Somewhat surprisingly, in the light of the evidence about Gwenda commonly having held large sums of money in cash,[60] the executors have said no cash was found in her possession on her death apart from a small amount in her purse.[61]  She had liabilities of a little over $65,000, including the money owing to Noel which she had taken from his account.  That gives a net estate of about $645,000, disregarding those items to which no value was attributed by the respondents.[62]

Beneficiaries - Wayne

  1. [42]
    In the events that have happened, the beneficiaries under the will are Wayne, his two children, and Hayden.[63]  Wayne is 57.  At the date of death he was working as a telephone technician for Telstra.  He married in May 1989, there were two children of the marriage born in the early 1990’s, but he and his wife separated in 1999 and were divorced 10 years later.  In his affidavit he referred to a property settlement in November 1999 which he said left him with very little apart from shares in Telstra, and his superannuation.[64]  After the separation he lived with Noel and Gwenda from November 1999 until September 2010.[65]  He said he paid board of $150 per week during that period, and also assisted around the house.  I would have expected him to be able to save part of his salary during that time, although he did not disclose the salary prior to the time of his affidavit, when it was almost $6,000 per month, net.
  1. [43]
    His first affidavit did not comprehensively disclose his assets and liabilities as at the date of death, though he claimed his monthly expenses were equal to his salary, which seemed surprising for a man living alone, and to have had little in the way of savings. There was no reference to any particular health problems. On the whole, on the basis of that affidavit, it was difficult to see that he had at that time any particularly strong claim on the bounty of the deceased, other than because he was her son. The affidavit was however incomplete to the point of being misleading.
  1. [44]
    There was a further affidavit by Wayne affirmed on 7 June 2018, in which more information was provided. He attributed a value of $650,000 to the house, and said that the amount secured by the mortgage was $390,000.[66]  He also had a small amount of money in the bank, a modest car, shares to the value of about $15,000, and superannuation as at June 2017 of $690,000.[67]  He also disclosed that he has been since February 2013 in a de facto relationship with a woman who is working and earning over $1,000 per week net.[68]  A list of her fortnightly expenses was set out, and in his affidavit he said that she pays for food and other living expenses, though he pays for the mortgage.  It is I suppose possible that the situation had changed since the first affidavit was affirmed.  Her principal asset was a superannuation balance of over $280,000 as at June 2017.  She had an expensive motor vehicle lease.
  1. [45]
    By the time of the trial there had been a change in Wayne’s position, in that he had lost his employment with Telstra in March 2019: p 100. He received a generous redundancy package,[69] most of which it appears he used to pay down his mortgage, reducing the debt to only about $70,000.  Since being made redundant he has been unable to find alternative employment: p 102.  He explained that one of his difficulties is that most of the technical qualifications that he had were internal Telstra qualifications, which are not recognised in the broader industry, so he has had to undertake various courses to obtain relevant equivalent qualifications.  I accept that the loss of employment is relevant to the strength of his current claim on her bounty, which is otherwise that of a child, a natural beneficiary.[70]  There is no evidence that this loss was impending or foreshadowed at the date of death of Gwenda.[71]
  1. [46]
    Because of the respondents’ approach, that the proceeds of sale of Gwenda’s former house passed under clause (f) in the will, no attempt was made to provide any information about the financial position of Wayne’s children.[72]  In these circumstances, I assume that they have no particular need for support.[73]  There is also the consideration that, as grandchildren, they do not have as strong a natural claim as children.[74] 

Beneficiaries - Hayden

  1. [47]
    Hayden is 25 and at the date of death worked for a supermarket; he is now a trainee store manager: p 2-12. In his first affidavit Hayden disclosed only monthly income and expenditure, and made no reference to his assets or to the extensive benefits he obtained from the deceased while she was alive. In his second affidavit, Hayden conceded that he received a cash payment from the deceased of $125,000 in August 2016, although he claimed to have repaid $25,000 of this in cash (p 2-14), in November 2016 he was paid $20,000 in cash,[75] in March 2016 he received $40,000 in cash,[76] and in February 2017 the deceased provided a bank cheque for $84,500 which was used to purchase cars for himself and his partner, Mr Oldfield.  He claimed that Mr Oldfield provided him with the price for one of the vehicles, $42,000, in cash, which he gave to the deceased.[77]
  1. [48]
    There is only one plausible explanation for a transaction being undertaken in this way: that it was an exercise in money laundering, in effect so that Mr Oldfield could obtain a new car without appearing to have paid for it himself. If this occurred, it is curious that nothing like that amount of cash was found in the possession of the deceased when she died suddenly less than a month later. Her bank accounts do not record any deposit of that size, or any significant size: p 2-30. For that matter, there was also no obvious explanation for the failure to locate the $25,000 Hayden claimed to have returned to her, or the $18,500 put into the safe by Mark. For reasons I give later, the most plausible explanation is that Hayden’s evidence about the $42,000 is totally unreliable, and no part of the $84,500 was repaid.
  1. [49]
    Hayden is the owner or part owner of three parcels of land.[78]  He owns a house and land at Wagtail Circuit purchased in 2016 for $339,000, financed by a bank loan for $263,000 and cash he said was provided by Mr Oldfield in 2016.  In addition there are two properties owned in common with Mr Oldfield, one at Parakeet Circuit purchased in October 2014 for $324,000, funded by a loan from the Commonwealth Bank of $299,000 with the rest said to be funded by them personally, and a property at Yandina purchased in May 2017 for $238,000, on which they then built or are to build a house with further loan monies; Hayden said that part of the purchase price, $96,900, was from the money given to him by the deceased in August 2016.  The properties are currently rented; he and Mr Oldfield live in rented accommodation. 
  1. [50]
    According to a statement of financial circumstances tendered at the trial (Exhibit 7) Hayden has equity of $69,000 in the property at Wagtail Circuit, and a half interest in the equity in the Parakeet Circuit property of $46,000 and in the Yandina property of $96,000, a total of $140,000.[79]  He has income including rental income of $5,100 per month while Mr Oldfield has income of $3,800 per month, and they share a further $1,520 per month rental income, a total for both of $10,420 per month, with total expenses of $8,821.  They are therefore living well within their means.  His financial position as at the date of death seems to me to have been quite comfortable.  Even on his own evidence, he had been quite generously assisted by Gwenda during her lifetime.  In short, it is difficult to see that he had or has any particularly strong claim on her bounty. 
  1. [51]
    Apart from the money he obtained from the deceased, he was also given $10,000 by Noel in October 2016, on the basis that he needed this assistance to help with university fees.[80]  There is nothing in the evidence from Hayden of his ever having attended university.
  1. [52]
    It is probably not necessary to go further into the details about this, but it is clear that benefits of over $250,000 came to Hayden during the lifetime of Gwenda. In those circumstances it is difficult to see how he had any particularly strong claim on her bounty, even if he did provide her with some assistance from time to time during the last years of her life. It follows from this conclusion that the proposition in her statutory declaration, that provision could not be made for Mark without unfairly prejudicing the beneficiaries, was also without rational foundation.
  1. [53]
    Overall, Hayden appears to be very well set up in life given his young age. If there is any truth in his evidence about receiving large sums of money from Mr Oldfield,[81] he has also benefitted substantially in that way, and has that support available to him.  No particular basis for need was shown in my view.  He did claim in his second affidavit that he had been recently diagnosed with cancer.[82]  He exhibited two documents, but neither provided any support for the existence of a diagnosis of cancer.  They simply refer to hospital appointments for surgery on 9 May 2018 and the surgical clinic on 14 June 2018.  The clinic appointment was made over a month in the future, suggesting an absence of urgency.  There is no more recent material about this.[83]  In view of my conclusions about Hayden’s unreliability, I do not accept his evidence that he has cancer, and there is no independent evidence to that effect.
  1. [54]
    There was no affidavit by Mr Oldfield, and no evidence from him in the trial. He does appear however to have had some involvement in the affairs of Gwenda.[84]  When she signed the contract to sell her house at Wondunna on 21 February 2017, her signature was witnessed by Mr Oldfield.[85]  On 9 January 2017, when Gwenda went to a solicitor to give instructions to make a new will, she was accompanied by Mr Oldfield.[86]  Mr Oldfield had been a previous client of the firm, though he was not known to that particular solicitor.  It appears from the solicitor’s statement[87] that Mr Oldfield was actually in the room with her when she was giving instructions to the solicitor.  That strikes me as an unsatisfactory practice. 
  1. [55]
    The document is not evidence of the truth of what was said to the solicitor by Gwenda.[88]  I note that one thing she told the solicitor was that the house at Wondunna was worth $624,000; she sold it for $528,500, but that was after the date of the interview with the solicitor.[89]  The solicitor recorded an impression of Gwenda as being strong willed, determined and adamant in her instructions.  She was also said to have had full knowledge of all her assets, though how the solicitor could tell that simply from what Gwenda told her is not obvious to me.  The point about taking a detailed note of the testatrix’s knowledge of her assets and of her family members is so that her understanding at the time can be compared with the true situation, as a means of assessing testamentary capacity.  That solicitor was not present when the will and statutory declaration were executed on 2 February 2017.[90] 

Credibility

  1. [56]
    I should say something about credibility of the various witnesses. I was generally favourably impressed by the oral evidence of Noel. Although there were occasions when he was unable to remember details, such as of the financial arrangement resulting from the Family Court order in 1991, which could understandably have slipped his mind over the years, he generally seemed to have a fairly good grasp of matters which could be the subject of independent confirmation, or was able to give answers which were consistent at different times in his oral evidence. He seemed to me in short to be both an honest and a reliable witness, although his view of the relationship he had with Gwenda may not have been objective.[91]  Mark also impressed me as being generally a straightforward and reliable witness.  He was obviously unhappy about the behaviour of Hayden, but generally his evidence struck me as both honest and reliable. 
  1. [57]
    I was not as impressed by Wayne, who seemed to me to be in some respects economical with the truth, although he did make some concessions during cross-examination.[92]  His first affidavit provided woefully inadequate information about his financial position, and was in some respects not reliable.  Most significantly, there is a direct inconsistency between paragraphs 18, where he said that Gwenda allowed Noel to move back into her home prior to Noel’s stroke, and paragraph 19 where he said that they only resumed cohabitation following Noel’s stroke.[93]  In his oral evidence Wayne conceded that the stroke was in 1993 and had followed Noel’s moving back with Gwenda: p 89, p 91.
  1. [58]
    Wayne’s statement in paragraph 18, that Noel was then destitute and did not have anywhere to go, is not credible; Noel at that stage had a secure job with the local authority, and he was no longer required to pay maintenance to Gwenda, so should have had no difficulty living in suitable rental accommodation.[94]  Noel was vague about whether he was required to pay maintenance after the order of the Family Court; that order did provide that he was not required to, and set aside an earlier Magistrates Court order providing for maintenance for Gwenda.  It is I suppose possible that Noel continued to provide money to Gwenda after the Family Court order even though he was not obliged to do so, or it may simply be that he is thinking of the period prior to the order in the Family Court, when he was required to pay maintenance. 
  1. [59]
    Another concerning feature of Wayne’s evidence was his reluctance to accept that Mark had actually paid $550,000 when he bought Gwenda’s former house, despite the convincing evidence of a settlement statement from the solicitor handling the conveyance.[95]  He claimed in his first affidavit para 21 that Noel and Gwenda never went on holidays or outings together after 1991, which was not true.[96]  His first affidavit stated hearsay as if it were facts within his own knowledge.  He also seemed somewhat aggressive in his demeanour in giving evidence. 
  1. [60]
    I was particularly unimpressed by Hayden as a witness. At one point Hayden was explaining deposits into a bank account of his of $35,000 on 22 January 2016, and $21,200 on 3 March 2016, which he said were both deposits of cash which he received from Mr Oldfield: p 2-17. His explanation was that Mr Oldfield had a property settlement prior to meeting him, and had withdrawn all of that money in cash so that a former partner could not get hold of it, but that is an explanation for a large sum of money coming into Mr Oldfield’s hands on one occasion. He then said that they were advised by their financial adviser to start depositing money into that account so that it could sit there for some period to prove that they had deposit money: p 2-18.
  1. [61]
    That did not explain why the deposit was made in two amounts. When asked to explain that, his answer was “because we didn’t want to carry that much cash at one time to a bank.” When challenged about that answer, he confirmed that what he was saying was that somebody “was perfectly happy to carry $35,000 but wasn’t prepared to carry $51,000.” As I said at the time, such evidence is an insult to my intelligence. That explanation is obviously false. Even if a person had a mental line in the sand of $35,000 as the amount of cash they would carry around at one time, that does not account for the fact that, having deposited that amount on 22 January, they would wait until 3 March to deposit the balance. The explanation was obviously false, and that Hayden would persist in it when challenged demonstrates that his evidence is totally unreliable. I do not accept his evidence except where it is a statement against interest, or where it is the subject of independent objective confirmation.
  1. [62]
    Apart from the money that Hayden admitted he received from Gwenda, there are other amounts deposited to his account in cash. On 17 August 2016, Gwenda made a deposit to an account she had at the ANZ Bank of $142,795.22.[97]  There followed a string of ATM withdrawals between 20 August and 30 August, mostly at the rate of $1,000 per day, although there were two totalling $2,500 on 25 August and 26 August, and five totalling $2,500 on 27 August.  The withdrawals between 20 August and 24 August totalled $5,000, the same as the amount of cash deposited by Hayden to his Suncorp account on 24 August 2016, which he said was cash that he had saved up, not money that had come from Gwenda: p 2-23.  Between 25 August and 30 August, the ATM withdrawals totalled $12,790, with the last made on 30 August, and on 30 August Hayden deposited $12,790 in cash into his Suncorp account.   Hayden said that this was money which he had been given by Mr Oldfield in cash because they had been doing furniture shopping that day.[98] 
  1. [63]
    I might have been prepared to accept the $5,000 on 24 August 2016 as a coincidence; the figure of $12,790 is sufficiently unusual for the notion that this is a coincidence to be fanciful. This was obviously the cash which had been stripped out of Gwenda’s account during that period and was deposited to Hayden’s account on 30 August. I find it was the same money, and in those circumstances I am prepared also to find that the $5,000 was the same money, so that is a further $17,790 of benefit obtained by Hayden in August 2016. I reject Hayden’s evidence to the contrary, and regard it as a further demonstration of his unreliability.

Approach to the application

  1. [64]
    The applicants as a spouse and a child of the deceased are entitled to apply under the Succession Act 1981 s 41.[99]  The first question under s 41(1) is whether the deceased made adequate provision for the proper maintenance and support of the applicants by her last will.  This is to be decided objectively as at the date of death of the deceased.[100]  Whether any provision (or no provision) was adequate is to be assessed by reference to the applicants’ financial positions, the size and nature of the deceased’s estate, the totality of the relationship between the applicants and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon her bounty.[101]  The assessment of the adequacy of any provision that has been made:

“Is not to be decided in a vacuum, as though looking simply to the question whether the applicant has enough upon which to survive or live comfortably.  Adequacy or otherwise will depend on all the relevant circumstances… the age, capacities, means and competing claims of all of the potential beneficiaries must be taken into account and weighed with all the other relevant factors.”[102]

  1. [65]
    The next step is as described in Stewart v Stewart [2015] QSC 238 at [13] by Applegarth J:

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.”[103]

I note that the discretion is exercised by reference to the situation at the trial, not at the date of death.[104] 

  1. [66]
    The statute does not contain any indication that the question is one of the general fairness of the will, or favour any principle of equality among potential beneficiaries.[105]  The authorities indicate how the provisions are to be applied, and it is simply a matter of applying them in the circumstances of this particular case.  There are cases which speak of testamentary freedom as something to be preserved,[106] but there is nothing in the Act which treats this as a factor in the operation of these provisions, which, to the extent that they operate, are necessarily inconsistent with testamentary freedom.  The true situation in my view is that testators have testamentary freedom except to the extent that the operation of these provisions interferes with it.  That freedom is not to be curtailed except to the extent produced by the operation of the statutory provisions in the circumstances of the case.  But the operation of the provisions according to their terms, as expounded in the authorities, is not to be constrained by any inherent objective of preserving testamentary freedom.  In the case of a small estate with several potential beneficiaries whose needs are significant, so that the estate is not able properly to satisfy them all, there may be in practice little in the way of real testamentary freedom.  In such a situation, if the needs and moral claims of the claimants are essentially equivalent, the proper application of the Act may produce an outcome where equal provision is made for all of them. 

Consideration

  1. [67]
    Noel was the spouse of Gwenda, he was old and to some extent disabled, had been living in accommodation provided by her, and been cared for by her, for 26 years. He was in a practical sense dependant on her. She had managed his money during that time, but had recently left him at a hospital without any arrangements for his accommodation. She had then taken such of his money as was accessible to her, leaving him without sufficient funds to provide accommodation for himself. In my view, he clearly shows need and a strong moral claim, particularly in a context where she had a reasonable estate and there were no other compelling claims on her bounty. Even if the relationship was not particularly happy from her point of view, I consider that there was a serious failure to make proper provision for him, in all the circumstances. The respondents relied on Noel’s admission that he had no expectation of benefit from Gwenda’s estate, but that must be seen in the light of his clear expectation that he would predecease her: p 49. In any case, what matters is whether the test in s 41 has been satisfied.
  1. [68]
    In the case of Mark, he had a claim as her son, a natural object of her bounty. He was and had been for some time unable to work, so that he is in relatively modest circumstances, with little to fall back on as he ages. There was a conflict of evidence between him and Wayne about the extent of their relative assistance to their mother over the years. It is difficult to resolve this,[107] but I consider that it is significant that in the will Gwenda made in 2012 she did not differentiate between them.[108]  That suggests that her judgment then was that there was no need for any such distinction.  The reasons given by her in 2017 for not making provision for Mark were inaccurate, and it seems clear that her exclusion of Mark was a capricious response to her taking Hayden’s side in the falling out between him and his parents.  It was the action of a fond and foolish testatrix, rather than a wise and just one.[109]  It was not suggested that anything done by Mark to Hayden could amount to disentitling conduct, and plainly it could not.  To the extent that the relationship with Mark had broken down in the period prior to her death, the fault was hers, not his.  I consider that there was also in all the circumstances a failure by her to make proper provision by her will for Mark. 
  1. [69]
    Mark is not impoverished, but has little to fall back on in the event of illness or other misfortune. It is relevant to consider a need for financial security by a fund to protect against the ordinary vicissitudes of life.[110]  In the circumstances he can have no expectation of generous provision from his father’s estate, which will necessarily be limited, and there is no particular reason to think that Noel’s life expectancy will be curtailed, except perhaps for the fact that he has been a smoker.  As I said, I have no medical evidence about his prospects. 
  1. [70]
    Wayne at the date of death had little in the way of need, but the loss of his employment has changed that situation. He still has a capacity to work, and experience which ought to be of value. I expect that in time he will obtain other employment, although it may be less remunerative than his former position. Despite this factor, he is overall much better off than Mark. Hayden has not shown need; he is generally well set up in life, and was in addition the recipient of considerable benefits from the deceased while she was alive. He had no particular claim on the bounty of the deceased.
  1. [71]
    My difficulty with Noel is chiefly in navigating the operation of the Aged Care Act, in the light of any provision I make. He has at the moment about $100,000 if the money refunded by the estate is taken into account: Exhibit 2. He has funded the legal costs of the application, and I expect he is likely to recover some of those as a result of any order for costs I may make, but at the moment the extent of that return cannot be known, since there may be relevant offers made “without prejudice except as to costs”, of which I know nothing.[111]  If provision is made for Noel in the sum of $200,000, that should enable him to pay the refundable deposit (or most of it) and leave him with at least the minimum permissible asset value, and perhaps a little more, from which there can be some supplement to his disposable income to provide for some of the matters referred to in his affidavit. 
  1. [72]
    I am conscious that this is a refundable deposit, and will in time fall into his estate, although that may be well in the future. I cannot assume any particular disposition of that estate, by will or by the operation of the Act. I do not consider that that means that such provision should not be made. I am also conscious that it is not the situation that he must pay this amount or he will lose his present place in the home; rather I assume that if he remained in his present financial state the current arrangement would continue. But I do not consider that that relieved the deceased from any obligation to make provision for him, and this approach suggests a suitable amount by way of provision. In any case, in view of his financial circumstances generally, provision of that order would I consider have been appropriate anyway. Such an amount will now constitute proper provision for him, bearing in mind all relevant circumstances.
  1. [73]
    Mark in his oral evidence suggested that, with rehabilitation, Noel would be able to live in ordinary accommodation, perhaps adapted to his limited mobility, and with care provided to him: p 86. There was no expert evidence to support the viability of this proposal, as an alternative to a nursing home, and he has been assessed as needing the level of care provided by a nursing home. Nor is there any evidence as to the cost of such an arrangement. It may be no more than a reflection of the fact that, like most people, Noel would prefer not to be in a home, and the supportive attitude of Mark. I cannot take this proposal into account as a viable hypothetical future for Noel.
  1. [74]
    Mark has little to fall back on, although he has enough to get buy from day to day. In view of the size of the estate, and the intrinsic needs of the beneficiaries, there are sufficient funds available to make some reasonable provision for a fund as a means of support against the vicissitudes of life, the kind of support the deceased would probably have provided herself if she had been alive, prior to the falling out with him. Bearing in mind all the relevant circumstances, I consider that a fund of $75,000 would amount to proper provision for him from the estate.
  1. [75]
    With regard to the burden of these provisions, I consider that the specific bequests in clause 6(b), (c), (d) and (e) of the will should be exonerated from them under s 41(4), since in general the burden of such orders commonly falls on the residue in a case like this where it constitutes the bulk of the estate. Apart from that, the court has power under s 41(3) to direct other than that the incidence of these provisions fall rateably on the estate, that is, such of the estate as is not exonerated. I consider that, in view of Hayden’s position and the extensive benefits he has already received, the burden of the provisions should fall first on his share of the residue, and thereafter, rateable on the remaining residuary beneficiaries.

Costs

  1. [76]
    The remaining issue is as to the costs of the parties of this proceeding. This is a matter on which I must hear further submissions, and receive further material, but there are some matters which I want to flag at this point as matters which should be addressed when the question of costs is dealt with. The first is that UCPR r 700A(2) permits the court to take into account, in dealing with costs, a number of matters set out, most of which seem to me to arise in one form or another in relation to this proceeding. In particular, my preliminary view is that the first affidavits of the respondents involved a significant failure to comply with r 430(1), and with para 11 of Practice Direction 8 of 2001, such that no costs should be allowed for the preparation, filing and service of them. Further, my preliminary view is that there is nothing relevant in the affidavit of Ms Slater, and virtually nothing in the affidavit of Ms Baker, which was not in breach of r 430(1), and they were filed in breach of the order of 11 May 2018, as was the affidavit of Wayne filed 11 June 2018, and for those reasons no costs should be allowed for the preparation, filing and service of all of them. Further, my preliminary view is that no costs should be allowed for the preparation, filing or service of any other affidavits, to the extent to which they are in breach of r 430(1).
  1. [77]
    Apart from this, there are extensive affidavits and exhibits which seem to serve no purpose other than to exhibit correspondence arguing about disclosure, and then providing disclosure. Most of this was completely irrelevant to anything I have to decide in this proceeding. For example, there was extensive correspondence about the statement by the solicitor who took instructions for the will, when such a statement should have been provided readily. The solicitors for the respondent were told about a decision of the Court of Appeal in England, Larke v Nugus [2000] WTLR 1033, which is also noted in the Solicitors Journal.[112]   In that case, in the context of a dispute about the provision of a statement of the evidence of the solicitor who took instructions for a will, the Court endorsed as a matter of principle at p 1044:

“When there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made.”

  1. [78]
    It did not appear to me from the correspondence that that issue was approached by the solicitors for the respondent in accordance with that principle, even after this decision was drawn to their attention, and that appears to have led to unnecessary costs. Indeed, it seems to me that overall there has been little effort to minimise the costs of this proceeding. One example of this is that there was frequent breach of r 435(12), by the duplication of documents already exhibited to earlier affidavits, or otherwise on the file. For example, the second affidavit of Hayden contained in Exhibit HKB3 copies of the will, the statutory declaration, and the 2012 wills of Gwenda and Noel, all of which were already on the file, while the affidavit of Tweddell filed 11 June 2018 contained additional copies of the earlier wills, and documents from Credit Union Australia about the accounts of the deceased, which were already on the file.[113]  There were also failures to comply with r 435(10) and (11), in not paginating and properly indexing bundles of exhibits to affidavits.[114] 
  1. [79]
    There were also exhibited large numbers of documents which were of no use whatever. It appears the solicitors for the respondents were in the habit of sending letters as attachments to emails which stated simply: “Please see the attached correspondence.” There is obviously no point in cluttering up affidavits with this rubbish, but there are in the affidavits huge numbers of them.[115]  It is a curious approach to the conduct of litigation to exhibit documents the only apparent purpose of which is to annoy the judge. 
  1. [80]
    There were also copies of pages of documents, such as bank statements, which contained nothing relevant, just notices to the customer.[116]  Copies of requests for documents, and copies of authorities, were exhibited, although they were of no relevance, and even letters doing no more than serving documents.[117]  I was given six volumes of Trial Bundle, but there was virtually nothing in volumes 5 and 6 which it was actually useful for me to have.  A supplementary trial bundle was also tendered by consent, but almost all of it duplicated documents already in the Trial Bundle.  The mere fact that a document has been disclosed provides no justification in exhibiting it to an affidavit, unless it is likely to have some impact on an issue in the proceeding.  Overall my impression is that there has been considerable over-servicing in this matter, and the respondents should have their legal costs assessed under the Legal Profession Act 2007.  
  1. [81]
    I will not decide the question of costs until I have heard further submissions, but I suspect it is unlikely I will be making the “traditional” order as to costs.

Footnotes

[1]Transcript p 71.

[2]Contract date 21 February 2017: Exhibit 5, p 180.  Became unconditional 16 March 2017: Exhibit 6.

[3]Next door to where Hayden and his partner were living: Hayden p 2-43.

[4]Following her death the contract was abandoned and the deposit refunded: Hayden p 2-43.

[5]This is something I can decide, in order to determine the devolution of assets on death:  Clifford v Mayr [2010] NSWCA 6. 

[6]There seems to be little point in the Court giving directions, even by consent, if thereafter the parties are going to ignore them. 

[7]Para 24(a) – Wayne p 46; para 18 re “arrangements for him to be accommodated” - Wayne p 90; para 24(b) – Wayne p 98.  As well para 26 was speculation: p 98-99. 

[8]Information from his affidavits unless stated.

[9]Mainly an amount borrowed to fund a substantial holiday they took together the previous year. 

[10]Affidavit of Tweddell Exhibit JGT2; see also Exhibit JGT3, an affidavit dated 24 November 1989 where Noel deposed to being then living with Gwenda at the former matrimonial home: para 10. 

[11]Ibid, Exhibit JGT4.

[12]Ibid, Exhibit JGT6.

[13]Had the death occurred soon after the order was made, or had the parties in fact gone their separate ways thereafter, this would have been an important consideration.  But in this case too much has happened since.

[14]As he did – transcript p 1-46.

[15]Noel 1st affidavit Exhibit KNB7. 

[16]Noel p 1-46, p 1-62.  See also Mark 1st affidavit para 12; transcript p 39; Wayne 1st affidavit para 18; transcript p 1-89, 91. 

[17]Noel p 1-46.

[18]Noel p 1-45; see also Mark p 1-39; p 1-72.

[19]Noel p 1-58.

[20]If this were the case, the benefit she received generated a relevant moral obligation. 

[21]Noel 1st affidavit para 30; probably the latter, since it was not mentioned by Mark at p 77-8, and the property was sold well after 1997.  It was a joint account – Exhibit 9 – but I accept it was his money. 

[22]Noel, 2nd affidavit, para 9; transcript p 1-51.

[23]On 30 January 2017: Transcript p 52.  He was moved to the Maryborough Hospital the next day.

[24]Noel said she visited him only twice: p 1-52.  On the other hand, Hayden said he took her to visit Noel “regularly”, and other people also took her to visit: 2nd affidavit para 6(b); p 2-27, 29.  I accept Noel on this. 

[25]There is an aged care assessment dated 7 March 2017: Affidavit of Tweddell Exhibit JGT7.  This is evidence of the fact of the assessment but the 4 page document “My Support Plan” is not evidence of the truth of its contents.

[26]Noel, 1st affidavit para 26.  He denied he had a problem – para 35(a) – as did Mark: p 72.  He had paid off the mortgage on the house by 1989. 

[27]In 2016 she had over $250,000 in bank accounts: 3 term deposits of $40,000 each with Credit Union Australia, $55,000 with Suncorp, a term deposit with the Heritage Building Society of $80,000, apart from money in joint accounts.  That year she received a legacy of $142,000 from her mother’s estate. 

[28]In the days when such legislation was introduced, this was almost invariably in the context of a husband disinheriting wives and children: de Groot and Nickel, Family Provision in Australia and New Zealand (1993) p 6.

[29]Noel 1st affidavit para 36; 3rd affidavit para 5; Exhibit KNB16.  He also had $207.54 in a current account, and $1,255.88 in the former joint account with Gwenda. 

[30]Noel 1st affidavit para 30, Exhibit KNB5.  In the form she signed on 16 February 2017 to do this she described the account as one in both their names, and gave a false reason for closing it: Tweddell 2nd affidavit Exhibit JGT9. 

[31]It has since been repaid from his estate: p 66.  As well $500, claimed to have been for cigarettes and other comforts for him, was withdrawn by her on 3 February 2017 from a different account: Noel 1st affidavit Exhibit KNB6.  He did not receive it (p 52) and it has also been repaid. 

[32]He also had no furniture: Wayne p 108.  Gwenda kept the lot.

[33]Wayne p 108, p 109; Noel p 54.  This occurred on 30 March 2017: Noel 1st affidavit para 32.  There was an intervening stay in a motel.  Hayden delivered some items to him at the village: Noel p 55.  

[34]On 26 June 2017: Noel 1st affidavit para 32; Residential Care Agreement: Noel 3rd affidavit Exhibit KNB19. 

[35]I was told that the determination of this fee, and the accommodation payment or contribution, had been deferred until after the conclusion of this proceeding. 

[36]I gather this is $49,350.60.

[37]Noel 3rd affidavit Exhibit KNB20. 

[38]There is no evidence that the author of this letter has any particular expertise in the workings of the relevant legislative provisions.

[39]Noel 3rd affidavit Exhibit KNB21. 

[40]Re Duff (1948) 48 SR (NSW) 510; and see Re WTN, noted in (1959) 33 ALJ 240.

[41]Abrahams v Abrahams [2015] QCA 286. 

[42]For the significance of the availability of Commonwealth benefits, see Oswell v Jones [2007] QSC 384 at [50] per Chesterman J. 

[43]The cost of the wheelchair and lifting chair in April 2018 came to $11,332.01: Noel 3rd affidavit Exhibit KNB22. 

[44]First affidavit of Noel Exhibit KNB7.

[45]Gwenda ran the finances for them both: Noel p 47, p 48; Mark p 79.  She even countersigned the document for Mark to hold $100,000 on behalf of Noel: p 64; Tweddell 1st affidavit Exhibit JGT10.

[46]Hayden 2nd affidavit Exhibit HKB3, dated 20 March 2012. 

[47]Evidence Act 1977, s 92.

[48]Information from his affidavits except where noted.

[49]He said he expects to need back surgery at some point, but there was no medical evidence that surgery is indicated for his condition.

[50]1st affidavit para 12; this was disputed by Wayne, 1st affidavit para 23.

[51]Mark 1st affidavit Exhibit MKB1.

[52]Wayne in 1st affidavit para 24(a) referred to a different appraisal (not produced) but that was hearsay: Wayne p 96.

[53]Mark 1st affidavit Exhibit MKB2.

[54]There were some payments to reimburse expenses incurred by Mark in relation to Noel’s land on Russel Island: Mark p 79; Affidavit of Tweddell Exhibit JGT11. 

[55]Hughes v National Trustees Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 at 150 per Gibbs J, Mason and Aickin JJ agreeing.

[56]Hughes (supra). 

[57]Hayden p 2.38. 

[58]Wayne said there was a box and bags of jewellery which did not look to him to be of any great value: p 2-6.

[59]Wayne 1st affidavit para 6; 2nd affidavit paras 2, 3. 

[60]Noel p 58, p 60; Mark p 29; see also Wayne p 2-7. 

[61]Wayne p 2-7; Hayden p 2-30.  I suppose the explanation for this may just be that she was at the time of her death staying at the house of Hayden and his partner. 

[62]In this calculation I am disregarding the costs of this proceeding, for reasons I will explain later. 

[63]There was also a specific legacy of $10,000 to a niece. 

[64]In evidence he was vague about the amount of this at the time, but gave a figure of about $250,000:  p 99.  In 2015 it was $428,000: p 100.

[65]But apparently he was in a de facto relationship from 2008: Wayne 3rd affidavit Exhibit WNB3.  He was not cross-examined about this. 

[66]However, he was $100,000 in advance of mortgage payments, which could be redrawn, an asset not disclosed in the affidavit: p 104.

[67]By the trial it was up to about $730,000: p 106.

[68]There had been another relationship after the marriage, from 2008 to 2011, followed by a financial agreement later that year, under which Wayne bought her out of a house for $30,000 and transferred to her a car after paying out the debt on it: Wayne 3rd affidavit Exhibit WNB3.  At that stage his mortgage debt after the transfer was estimated at $534,000. 

[69]$243,000 net: Exhibit 4; Wayne p 102.

[70]It is not a question of whether he would qualify as an applicant if no provision had been made for him: Albury v Sammut [2019] QSC 105 at [74].  But his demonstrated need is relevant to the assessment of whether proper provision was made for the applicants: Vigolo v Bostin (infra) at [122]; Palmer v Dolman [2005] NSWCA 361 at [115]; Foley v Ellis [2008] NSWCA 288 at [88], [89].

[71]See Wayne p 101.

[72]See also Wayne p 2-8. 

[73]Anderson v Teboneras [1990] VR 527 at 535; Frey v Frey [2009] QSC 43 at [148]; Collins v Mutton [2012] NSWSC 548 at [108]. 

[74]Re Davies [2014] VSC 248 at [71]. 

[75]Hayden 2nd affidavit para 3(c).  He claimed that this was to repay a loan from Mr Oldfield to Gwenda in 2015, to have work done on her house. 

[76]He claimed that this covered the car purchased for her: p 2-14.

[77]Hayden 2nd affidavit para 3(d); in evidence he said it was Mr Oldfield who gave her this cash: p 2-28.  The story was more implausible because supposedly Gwenda paid for the car for Mr Oldfield, whereas he paid for the car for Hayden, and it was Gwenda who asked for the money in cash. 

[78]Hayden 2nd affidavit para 5. 

[79]The asset and liability figures for Yandina do not appear to make allowance for the value of the building, and the associated loan; perhaps it is still in the future: see p 2-13. 

[80]Noel 2nd affidavit para 4; Noel p 56; Hayden p 2-27. 

[81]I have not bothered to add up all the amounts claimed, but those in his second affidavit are of the order of $128,000. 

[82]Hayden 2nd affidavit (6 June 2018) para 15.  His solicitors advised this on 2 May 2018: affidavit of Cartwright Exhibit SMC23. 

[83]If he had been diagnosed with cancer last year, he would obviously have documents available to him by now to prove that. 

[84]Noel 2nd affidavit para 14. 

[85]Supplementary trial bundle at p 185.  This bundle was tendered by consent: p 37.  Practically everything else in it duplicated documents exhibited to affidavits in the trial bundle. 

[86]Statement of solicitor: Hayden 2nd affidavit Exhibit HKB3 p 425.  The appointment was made by Hayden: p 2-32.  He claimed they did not discuss what occurred: p 2-34.

[87]This was not a contemporaneous statement.  It was made on 9 May 2018, for this litigation: see Affidavit of Cartwright Exhibit SMC12 p 206.  There should have been a contemporaneous note.   

[88]I am treating the statement as admissible evidence of the solicitor, including of what she was told, but not of the truth of what she was told.   

[89]Sold on 21 February 2017: supplementary trial bundle p 181. 

[90]This strikes me as a long delay after instructions were given. 

[91]His statement in his second affidavit para 17 is probably closest to the truth.

[92]Not always: he was reluctant to accept that Gwenda received (essentially) $550,000 when she sold her house to Mark, despite being shown the settlement statement: p 97. 

[93]One wonders whether he actually read the affidavit before he affirmed it.

[94]As Wayne knew: p 89, line 35.

[95]Wayne p 97.  The settlement statement is part of Exhibit MKB1 to the first affidavit of Mark. 

[96]Noel 2nd affidavit para 12(b); Wayne p 92; Hayden 1st affidavit para 8. 

[97]This was a cheque from solicitors for the estate of Gwenda’s mother, being the legacy to Gwenda: Hayden 2nd affidavit Exhibits HKB3, HKB4.  The solicitors for that estate said that their cheque was cleared to a joint account of Noel and Gwenda: Hayden 2nd affidavit Exhibit HKB3 p 454.  This is curious, because the clearance date of 18 August was the day after the deposit to the ANZ account 4616-65945 suggesting it was cleared through that account; perhaps only the second cheque (for $9.69) was paid to the joint account. 

[98]Hayden p 2-23.  He adhered to this even after its absurdity had been pointed out to him: p 2-25. 

[99]There is no need for an adult child to show special need or some special claim: Blair v Blair (2014) 10 VR 69 at [20], [21]; Collins v Mutton [2012] NSWSC 548 at [94](e); Smith v Johnson [2015] NSWCA 297 at [62]; Warriner v Warriner [2015] VSC 314 at [59].  I regard Re Sinnott [1948] VLR 279, relied on by the respondents, as no longer stating the law.   

[100]Vigolo v Bostin (2005) 221 CLR 191 at [4], [5], [56], [112].

[101]Singer v Berghouse (1994) 181 CLR 210 at 209-10.

[102]Vigolo v Bostin (supra) at [121].

[103]Citing Singer v Berghouse (supra) at 209, Vigolo (supra) at 200-201.

[104]White v Barron (1980) 144 CLR 431 at 440. 

[105]Warriner v Warriner [2015] VSC 314 at [65].  In this case no provision was ordered for a sibling of the beneficiary of a relative small estate, where the applicant was not in any great need, and the beneficiary had significant need because of mental health issues. 

[106]Warriner (supra) at [56], [57] and cases cited there. 

[107]If I had to, I would prefer the evidence of Mark. 

[108]Mark 1st affidavit Exhibit MKB3. 

[109]Freeman v Jaques [2006] 1 Qd R 318 at [29]. 

[110]Marks v Marks [2003] WASCA 297 at [43]; Collins v Mutton (supra) at [94](j); Smith v Johnson (supra) at [90]; Warriner v Warriner (supra) at [121].   

[111]Two open offers made by the applicants were proved during the trial, but I should not act on them without having heard all relevant submissions as to costs after my decision has been published. 

[112](1979) 123 Sol Jo 337.

[113]Also at p 807 a copy of the order of 11 May 2018. 

[114]For example, the affidavits of Tweddell filed 7 February 2018 and of Hayden filed 11 June 2018. 

[115]As examples only, the affidavit of Cartwright filed 11 May 2018, at Trial Bundle pages 373, 375, 377, 380, 382, 384, 387, 390, 396 and 398; affidavit of Tweddell filed 11 June 2018, at least pages 761, 763, 766, 770, 772, 796, 802, 805, and 809. 

[116]An excellent, and ironic, example of this is at p 619 of the Trial Bundle, headed: “Are you drowning in a sea of documents?” 

[117]Affidavit of Cartwright filed 11 May 2018 Exhibits SMC21, SMC22; affidavit of Tweddell filed 11 June 2018 at Trial Bundle pages 762, the same letter, and affidavits of service at pages 800, 803. 

Close

Editorial Notes

  • Published Case Name:

    Kenneth Noel Baker and Mark Kenneth Baker v Wayne Noel Baker and Hayden Kenneth Baker as executors of the will of Gwenda Dawn Baker (deceased)

  • Shortened Case Name:

    Baker v Baker

  • MNC:

    [2019] QDC 92

  • Court:

    QDC

  • Judge(s):

    McGill J

  • Date:

    07 Jun 2019

Appeal Status

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