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  4. Leach v The Public Trustee of Queensland - [2020] QDC 284

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Leach v The Public Trustee of Queensland[2020] QDC 284

Leach v The Public Trustee of Queensland[2020] QDC 284

DISTRICT COURT OF QUEENSLAND

CITATION:

Leach v The Public Trustee of Queensland [2020] QDC 284

PARTIES:

Leach

(Applicant)

v

The Public Trustee of Queensland as Executor of the Estate of George Allan Davis (deceased)

(Respondent)

FILE NO:

3/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Bundaberg

DELIVERED ON:

13 November 2020

DELIVERED AT:

Bundaberg

HEARING DATE:

2 November 2020 (on the papers)

JUDGE:

Lynch QC DCJ

ORDER:

  1. The application filed on 10 September 2020 is refused.
  2. The originating application filed on 3 April 2019 is dismissed.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – application by de facto partner under s 41 of the Succession Act 1981 (Qld) for provision from estate of partner – whether adequate provision has been made for the applicant’s proper maintenance and support out of the estate of the deceased – agreement by parties for further provision – whether jurisdictional question under s 41 satisfied – whether whole of proceedings should be dismissed

LEGISLATION:

Acts Interpretations Act 1954 (Qld)

Succession Act 1981 (Qld)

Trusts Act 1973 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 221 CLR 191

Watts v The Public Trustee of Queensland [2010] QSC 410

SOLICITORS:

Payne Butler Lang Solicitors for the applicant

Official Solicitor to the Public Trustee of Queensland for the respondent

Application

  1. [1]
    By originating application filed on 3/4/2019, Isabell Florence Leach (the applicant) seeks an order pursuant to s 41 of the Succession Act 1981 that adequate provision be made from the estate of George Allan Davis (the deceased), for the applicant’s proper maintenance and support. The Public Trustee of Queensland (the respondent), is the executor and trustee of the estate. Other beneficiaries under the deceased’s will are his sons Rodney Allan Davis, Peter John Davis, & Gregory Robert Davis, who all oppose the application.
  1. [2]
    This application, filed on 10/9/2020, is an application in those proceedings that an order for further provision be made for the applicant out of the estate, in accordance with an agreement reached between the applicant and the respondent, without the need for the matter to proceed to trial. The deceased’s sons also oppose this application.
  1. [3]
    I am not satisfied the applicant has been left without adequate provision under the terms of the will. It follows both applications should be refused. These are my reasons for that conclusion.

Material

  1. [4]
    The following material was admitted in the proceedings.
  1. Originating application filed 3/4/2019
  2. Affidavit of Isabell Florence Leach filed 3/4/2019
  3. Application for reduction of fees by individual
  4. Directions order 30/4/2019
  5. Affidavit of Linda Faye Blackburne filed 3/7/2019
  6. Application filed 10/9/2020
  7. Affidavit of Amanda Jane Weir filed 11/9/2020
  8. Submissions of Rodney Allan Davis, Peter John Davis, & Gregory Robert Davis filed 7/10/2020
  9. Affidavit of Jodie Ann Currie filed 02/11/2020
  10. Submissions of applicant filed 2/11/2020
  11. Submissions of respondent filed 2/11/2020
  12. Further submissions of Gregory Robert Davis filed 4/11/2020
  13. Email correspondence from applicant and respondent dated 4/11/2020

Terms of the will

  1. [5]
    The deceased, George Allan Davis, died on 4 July 2018. By his will dated 13 August 2013, the deceased appointed the Public Trustee of Queensland as executor and trustee of his estate.
  1. [6]
    The terms of the will provide that upon the deceased’s death, “my partner Isabell Florence Leach” is permitted the right to reside in the property at 68 Alice Street, Bundaberg, for a period of 5 years or until such time as the trustee determines the applicant is no longer residing permanently there, whichever occurs first. This is conditioned upon the applicant’s keeping the property in a satisfactory state of repair, maintaining and paying insurance over the property, and paying all rates or other outgoings.
  1. [7]
    Upon failure or termination of the right of residency, the will provides that the trustee sell the property and the proceeds of sale be distributed by way of a 50% share to “my partner Isabell Florence Leach”, and a 50% share to be held equally by the deceased’s sons Rodney Allan Davis, Peter John Davis, and Gregory Robert Davis.
  1. [8]
    Included in the documents exhibited by the respondent is a copy of the instructions of the deceased at the time of preparation of the will. That includes the deceased’s identifying the applicant as his “partner” of (then) 18 years.
  1. [9]
    An order for the trustee to administer the estate in accordance with the will was made by the Supreme Court of Queensland on 11 August 2018.

Applicant’s circumstances

  1. [10]
    The applicant is now aged 81 years (DOB 14/2/1939). She continues to reside in the property at 68 Alice Street, Bundaberg. Her only income is receipt of an aged pension in the amount of $926.20 per fortnight (as at April 2019). She deposes that her fortnightly expenses frequently exceed her income; and estimates her fortnightly expenses as being $1,036. This includes amounts for rates, house insurance, lawn mowing, and house maintenance. She values her assets at approximately $45,200; which comprises a vehicle ($5,000), funds in a bank account ($220), and household contents ($40,000). The applicant lists no liabilities.
  1. [11]
    The applicant met the deceased in late 1993; the deceased’s wife having passed away in early 1993. At that time the deceased owned the property at 68 Alice Street, Bundaberg, and a beach house at Innes Park. The applicant says that she commenced living with the deceased at his property at 68 Alice Street, Bundaberg, from early 1994. At that time, the applicant and deceased both worked full time jobs; she as a nurse, and he as a tractor driver.
  1. [12]
    The applicant says that early in their relationship, the deceased sold the beach house and made other distributions to his adult children. When her relationship with the applicant commenced, the applicant owned her own house but, after a few months sold that, she says with the deceased’s encouragement that she had a home for life with him. The applicant says she received approximately $23,000 from the sale, at least some of which was applied to purchasing items for the benefit of both of her and the deceased.
  1. [13]
    The applicant says she and the deceased retained separate finances and each contributed financially and physically to the upkeep and maintenance of the house; she attended to domestic chores such as cooking and cleaning, whereas the deceased looked after outside work. They shared the cost of groceries, although in later years the applicant contributed more than the deceased in this respect. When they travelled together each paid their own way. The deceased retired aged 65 (in 1998), and the applicant retired aged 63 (in 2002).
  1. [14]
    The applicant describes that at times when the deceased suffered illness or injury, she personally cared for him. In 2013, the applicant and one of the deceased’s sons paid for the deceased’s cataract surgery. The applicant says as the deceased aged and his health deteriorated, he became more physically and emotionally dependent upon her, and became anxious if they were separated. The deceased was diagnosed with brain cancer a couple of months before his death. The applicant cared for him at home until such time as he was hospitalised.
  1. [15]
    Since the deceased’s death, the applicant has continued to live at 68 Alice Street. The applicant claims she has continued to maintain the property, including by her making payment for replacement of the hot water system and gas stove, and by purchasing paint and painting equipment. She claims also to have kept and paid for insurance over the property, and paid the rates as due.
  1. [16]
    The applicant says the deceased frequently told her she would always have a home at Alice Street and made her feel like it was her home. She says the deceased promised to transfer a half share in the house to her and they quarrelled that he had not done so. She says the deceased told her he would leave her the house.
  1. [17]
    The applicant says she suffers from, and is medicated for, high blood pressure, diabetes, and arthritis. In addition, she is on an elective surgery wait list to have both knees replaced.
  1. [18]
    The applicant contends that on the basis she has a life expectancy of a further 9.93 years, her future rental expenses will exceed a distribution of 50% of the estate in her favour.
  1. [19]
    The applicant also deposes her belief that each of the deceased’s sons own their own homes, have adult children, and are in significantly better financial position than her.

Circumstances of other beneficiaries

  1. [20]
    The other beneficiaries under the will are the deceased’s sons Rodney, Peter, and Gregory Davis; none of whom are represented in the proceedings. Rodney and Gregory Davis provided the respondent with details of their circumstances in signed statements which are exhibited by the respondent, and summarised in the respondent’s material.
  1. [21]
    Rodney Davis is now aged 65 years. Rodney Davis has been in receipt of a disability support pension since 1999. He suffers numerous health conditions including short term memory loss resulting from a brain haemorrhage, fluid build-up on the brain requiring a drainage shunt, removal of a melanoma, high blood pressure, high cholesterol level, type 2 diabetes, and arthritis in the knees and shoulder. Rodney’s wife of 44 years also has significant health concerns and is unlikely to return to work. The couple own their home which is said to require many repairs. The couple struggle to meet their financial commitments on time.
  1. [22]
    Gregory Davis is now aged 61 years. Gregory works as a boilermaker but is unsure how much longer he can continue working. Gregory has undergone a knee operation and has been advised he will require both knees to be replaced in future. Gregory also suffers arthritis in both hands, and high blood pressure. His wife of 41 years suffers significant health issues which have seen her working hours reduced by 75%.
  1. [23]
    Written submissions filed on behalf of the deceased’s sons identify that Peter Davis is now aged 63 years. The written submissions state that Peter suffered a heart attack in 2010 and later required bypass surgery. The written submissions state that Peter is a builder. No other details concerning Peter’s circumstances are provided in the material.

Value of estate

  1. [24]
    The estate consists of the property at 68 Alice Street, Bundaberg, the deceased’s utility vehicle, and furniture and effects. The property at 68 Alice Street, Bundaberg has been valued at $175,000. The respondent estimates the net value of the estate, after administration costs, as at 28 October 2020, to be $172,758.34.
  1. [25]
    The respondent estimates further costs and outlays by the respondent for administration of the estate to be approximately $5,000; and the legal costs and outlays incurred by the respondent up to 28 October 2020, to be $36,000.
  1. [26]
    On that basis, the net value of the estate is presently estimated to be $131,758.34.
  1. [27]
    The applicant and respondent have reached agreement, subject to final orders, that further provision be made for the applicant from the estate. The terms of that agreement include that the applicant receive a 75% share upon sale of the property at 68 Alice Street, Bundaberg, and that the deceased’s sons equally share the remaining 25%. That agreement also proposes the respondent’s costs be met from the estate on an indemnity basis, and the applicant’s costs, fixed in the sum of $15,000, also be met from the estate.
  1. [28]
    Payment of the applicant’s costs out of the estate would result in the net value of the estate being $116,758.34. Under the proposed agreement, the applicant would receive $87,568.75 and the deceased’s sons’ share would amount to $29,189.58.

The law

  1. [29]
    The Succession Act 1981 relevantly provides:

41 Estate of deceased person liable formaintenance

  1. (1)
    If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

…

5AA Who is a person’sspouse

  1. (1)
    Generally, a person’s spouse is the person’s—
    1. (a)
       husband or wife; or
    1. (b)
       de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or

…

  1. (2)
    However, a person is a spouse of a deceased person only if, on the deceased’s death—

…

  1. (b)
    the following applied to the person—
    1. (i)
       the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;
    1. (ii)
       the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death;

…

  1. [30]
    Section 32DA of the Acts Interpretation Act 1954 relevantly provides:

32DA  Meaning of de facto partner

  1. (1)
    In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
  1. (2)
    In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—
  1. (a)
    the nature and extent of their common residence;
  2. (b)
    the length of their relationship;
  3. (c)
    whether or not a sexual relationship exists or existed;
  4. (d)
    the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. (e)
    their ownership, use and acquisition of property;
  6. (f)
    the degree of mutual commitment to a shared life, including the care and support of each other;
  7. (g)
    the care and support of children:
  8. (h)
    the performance of household tasks;
  9. (i)
    the reputation and public aspects of their relationship.
  1. (3)
    No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.
  1. (4)
    Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

…

  1. [31]
    The test for a claim for maintenance under s 41 is as identified by the High Court in Singer v Berghouse.[1]In that case the majority said:

The jurisdiction of the court

…

It is clear that, under these provisions, the court is required to carry out a two- stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". That description means no more than that the court's power to make an order in favour of an applicant under s.7 is conditioned upon the court being satisfied of the state of affairs predicated in s.9(2)(a). (Citations removed)

…

The first question is, was the provision (if any) made for the applicant "inadequate for (his or her) proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co. The determination of the first stage in the two-stage process calls 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. (Citations removed)

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 should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors. (Citations removed)

The nature of the two-stage inquiry

Although the precise nature of the jurisdictional question has been the subject of some debate, the correct view is that the question is strictly one of fact, notwithstanding that it involves the exercise of value judgments. The evaluative character of the decision stems from the fact that the court must determine whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. (Citations removed)

…

Strictly speaking, however, the jurisdictional question, though it involves the making of value judgments, is a question of objective fact to be determined by the judge at the date of hearing.[2]

  1. [32]
    Various decisions have recognised that s 41 requires the court to exercise a discretion which cannot be achieved through agreement. In Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams,[3] the Court of Appeal said:

As Dalton J observed in Affoo v Public Trustee of Queensland, the final disposition of a Family Provision application is an exercise of the court’s discretion. It cannot be achieved by agreement or deed. Any agreement reached at a mediation or between the parties at any stage cannot in any way circumvent the requirement that the court must consider whether it should make an order in the terms sought because it would finally dispose of the Family Provision application. The court can only make an order if it has jurisdiction to act under the terms of the statute.[4] (Citations removed)

  1. [33]
    If, after consideration of the first stage of the test described in Singer v Berghouse, the court concludes an order for proper maintenance should be made, any agreement reached by the parties should be given considerable weight in determining what order should be made in favour of the applicant. In Watts v The Public Trustee of Queensland,[5]Jones J said:

Once the court is of the view that the jurisdictional question has been satisfied then the issue arises as to the effect of the parties’ agreement. Obviously considerable weight must be given to the agreement of the parties. The inquiry thereafter is limited. The circumstances would be unusual indeed for the court to override the agreement of the parties who are of full age and where there is no evidence of undue influences at work in the reaching of the agreement.[6]

Submissions of applicant and respondent

  1. [34]
    The applicant acknowledges the first step is as described in Singer v Berghouse. The applicant submits the material shows the applicant was in a de facto relationship with the deceased from early in 1994 until his death in 2018. The applicant contends she contributed to that relationship financially, by performance of general domestic duties, and by caring for the deceased. The applicant says the deceased promised her a half share in the residence at Alice Street, and that in light of her life expectancy, a half share in the estate is insufficient to provide for her accommodation expenses into the future. The applicant submits the provision of a five year right to residency followed by a half share in the value of the property is insufficient to provide for her ongoing maintenance and support. The applicant submits that taking account of the interests of the other beneficiaries, the court would conclude jurisdiction under s 41 is enlivened.
  1. [35]
    The applicant submits the proceedings should be disposed of by order consistent with the agreement where the value of the estate is small and will likely be subsumed by legal costs if the matter were to proceed to trial. The applicant submits the order should be as agreed with the respondent; namely: administration expenses, the respondent’s legal costs, and the applicant’s legal costs fixed at $15,000, be paid from the estate; the applicant be paid 75%, and the deceased’s sons be paid 25%, of the residual value of the estate.
  1. [36]
    The respondent also acknowledges the jurisdictional test required for the application to succeed. The respondent submits this requires consideration whether the provision made in the will is inadequate for the proper maintenance of the applicant, having regard to: her financial position, the size and nature of the estate, the relationship between the applicant and deceased, whether the applicant based her lifestyle on an understanding of inheritance, and the relationship between the deceased and the other beneficiaries. The applicant contends the term “adequate” is concerned with quantum, while the term “proper” describes the standard of maintenance and support.
  1. [37]
    The respondent acknowledges the modest size of the estate and the likelihood that legal costs associated with a trial will further diminish its value. The respondent acknowledges the obligation upon executors to consider their fiduciary duty in the conduct of litigation affecting an estate. The respondent identifies the power, pursuant to s 44(f) of the Trusts Act 1973, for the trustee to compromise any claim relating to trust property. The respondent acknowledges in this case the estate cannot provide for all of the applicant’s needs but submits the proposed order is adequate to meet some of them. The respondent submits the court would make the order sought.

Material filed by other beneficiaries

  1. [38]
    Written submissions on behalf of Rodney Davis, Peter Davis and Gregory Davis, opposing the order sought, were filed on 7 October 2020. In addition, the respondent filed an affidavit of Jody Anne Currie on 30 October 2020, which includes documents received from Rodney Davis and Gregory Davis. Also, a number of further documents, were forwarded to the court via the respondent on 4 November 2020. The applicant does not oppose the court receiving that additional material and having regard to it in determining the application, however, submitted it should be accorded little weight because it was not in admissible form.
  1. [39]
    The written submissions filed on 7/10/2020 dispute some of the factual assertions of the applicant concerning her relationship with the defendant. It is unnecessary to set out all of the disputed facts but they include such things as what financial contribution was actually made by the applicant, that she never paid rent, that she claimed a single person’s pension, that upon the deceased’s death the applicant moved her adult daughter into the Alice Street house, that the applicant refused to deliver to them their father’s ashes, that the applicant took funds from their fathers bank account, etc.
  1. [40]
    The written submissions contend that the provision in the deceased’s will in favour of the applicant is extremely generous. It is also submitted that no order that the applicant’s costs be paid out of the estate should be made, since to do so will further diminish the value of the estate. The deceased’s sons accept the decision of their father as to the division of his estate and submit his wishes should be honoured. It is submitted no order should be made for further provision for the applicant.
  1. [41]
    The responses of Rodney and Gregory Davis, as contained in the respondent’s affidavit material, also dispute some factual assertions by the applicant, including those already referred to in the written submissions. Likewise, it is not necessary to set out the matters of dispute in full. However, they include, for example, the claim that it was at the applicant’s insistence that the stove, hot water system and fridge were replaced, and this occurred shortly before their father’s death, not afterwards.
  1. [42]
    Similarly, the additional material received on 4 November 2020 disputes factual assertions made by the applicant concerning her relationship with the deceased. The further material received on 4 November 2020 also expresses the opposition of Rodney, Peter, and Gregory Davis to the present application.

Consideration

  1. [43]
    Determination of a claim under s 41 of the Succession Act for further or better provision from an estate requires compliance with a number of statutory pre-conditions. Relevantly here, the Act imposes a time limit for commencement of the application and that an identified relationship was in existence.
  1. [44]
    In this case an originating application seeking adequate provision from the estate of the deceased was filed on 3 April 2019; i.e. within the time period of 9 months after the death of the deceased.[7]
  1. [45]
    The applicant contends she was the spouse of the deceased at the time of his death by reason of the definitions in s 5AA of the Succession Act and s 32DA of the Acts Interpretation Act. It is not disputed the applicant and deceased lived together at the deceased’s Alice Street house for over 24 years until his death, aged 85, on 4 July 2018. The applicant sold the residence she owned a relatively short time after commencing to cohabit. The applicant does not claim to have been in a sexual or intimate relationship with the deceased and does not assert they shared a bed or bedroom. However, the applicant does say she and the deceased shared general living expenses, both performed household tasks, and both contributed financially and physically to the maintenance of the Alice Street house. On occasions they travelled together. The applicant claims the deceased became more dependent upon her both emotionally and physically as he aged, and says she cared for him as was necessary over time, including in the period before his death. She says he promised her a share of the property. In his final will dated 13 August 2013, the deceased referred to the applicant as his partner.
  1. [46]
    Although the material submitted by the deceased’s sons disputes the extent of the financial and other contributions of the applicant towards the relationship, and other aspects of the applicant’s conduct towards the deceased, it does not seem to me necessary to resolve those areas of dispute in determining whether the applicant meets the definition of a spouse under the legislation. Clearly, the deceased regarded the applicant as his partner and I accept promised her at least a half share of the house, consistent with his will. The terms of his will also provide a not insignificant period of residency for the applicant after the deceased’s death. Having regard also to the length of cohabitation, that at least some financial contribution was made to the living arrangements by the applicant, that the applicant otherwise contributed to the joint household by performing domestic chores, that at times the two travelled together, and that the applicant cared for the deceased as necessary, I am satisfied the deceased and the applicant were living together as a couple on a genuine domestic basis and were therefore in a de facto relationship.
  1. [47]
    Because the estate is of a relatively modest value, and in order to avoid that value being subsumed by the legal costs of a trial of the application, the applicant now seeks an order finally disposing of the application. To that end, the applicant has agreed the proposed final orders with the executor/trustee of the estate. If an order were to be made for further provision from the estate, due respect should be paid to that agreement. However, as is accepted by the applicant, no order under s 41 can be made unless satisfied the applicant has been left without adequate provision for her proper maintenance and support. That question is to be answered having regard to all the circumstances, including: the applicant's financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and the other beneficiaries.
  1. [48]
    The applicant is now aged 81 years. She is in receipt of an aged pension. She estimates her current financial obligations result in a small fortnightly loss; but acknowledges that is not always so. The applicant calculates her future rental accommodation expenses, assuming a life expectancy of nearly 10 years, is in the vicinity of $155,000. She argues a 50% share of the estate would not cover that cost. Neither would the full value of the estate. That calculation assumes the applicant does not take up the remaining 2 years and 8 months of her right of residency. If she were to do so, the calculation of accommodation expenses is reduced by approximately $42,900.
  1. [49]
    The applicant estimates her fortnightly expenses include about $230 to cover items associated with maintaining her residency; namely, rates ($120), house insurance ($52.97), lawn mowing ($7), and house maintenance ($50). On that basis, over the remaining 2 years and 8 months of her right of residency, the applicant can expect to pay approximately $16,445 to maintain that entitlement. By comparison, over that same period, assuming the applicant terminated the residency and was paying rent at the rate she estimates, the applicant would pay approximately $42,900 in rent; a difference of $26,455.
  1. [50]
    Over the estimated period of her life expectancy, and without indexation, the applicant would expect her pension income to amount to about $238,000. To this would be added the amount the applicant will receive from the estate. As set out above, before payment of the applicant’s legal costs of $15,000 associated with this application, the estate has a net estimated value of $131,758. A 50% share at that value is $65,879 before payment of the applicant’s legal costs; and $58,379 after deduction of the applicant’s legal costs. The applicant is instead seeking payment of 75% of the net value of the estate. After her legal costs are paid out of the estate, that amounts to $87,568. This is an increase over the amount gifted under the terms of the will of $29,189 if the applicants legal costs are first paid out of the estate; or $21,689 if they are not.
  1. [51]
    On the basis of these calculations, if successful in her present application, the applicant would be required to terminate her residency, and then be liable to pay rent (an additional $26,455). That course would result in a net benefit of $2,734 more than the existing entitlement if the applicant’s legal costs are first paid from the estate; and would result in a net loss of $4,766 compared to the existing entitlement if the applicant’s legal costs are not paid from the estate. Even assuming the applicant were only to receive a 50% share, I conclude her financial position is not so parlous as is suggested. It is barely improved by the orders sought.
  1. [52]
    Obviously there is considerable dispute between the applicant’s account of the nature of, and her contribution to, her relationship with the deceased, and the description provided by the deceased’s sons. However, assuming the complete accuracy of the applicant’s description does not change my conclusion as to whether she has been left without adequate provision under the terms of the will. Accepting the applicant’s financial contribution to the relationship was significant, she acknowledges the deceased also contributed financially. She describes that she provided physical and emotional support to the deceased over a lengthy period, and cared for him as need be when he suffered illness and injury, including in the period before his death. She describes the deceased became more dependent upon her as he aged. Undoubtedly the deceased regarded the applicant as his partner and promised her a share of the property. She remained in the relationship with that expectation.
  1. [53]
    But the provision for her in the deceased’s will is significant. It provides a residence for her until she is aged 84 years, and afterwards a half share in the value of the remainder of the estate. It might be expected that the applicant’s expenses, apart from her accommodation needs, will reduce over time. Although suffering a number of health issues, it is not made clear they will impact her adversely in a financial sense. The disposition in the applicant’s favour provides a real recognition of the significant part the applicant played in the deceased’s later life.
  1. [54]
    As against those considerations, the deceased also recognised the competing claims of his sons by gifting them jointly, a share in his estate. On the material admitted in this application, it is undisputed that all of the deceased’s sons maintained a decent and loving relationship with their father. All are aged in their 60’s, and presumably have a longer life expectancy than the applicant.
  1. [55]
    As is obvious from the above, the size and value of this estate is comparatively small. The estate alone could not have provided for all of the applicant’s future financial requirements, but she retains an income independent from the estate. Nevertheless, the estate does provide for her future maintenance and support in meaningful and financially significant ways; by allowing a right of residency and by way of inheritance. This is substantial recognition of the applicant’s role in the deceased’s life. When considered relative to the value of the estate, accepting the applicant’s description of her relationship with the deceased, and acknowledging the interests of the deceased’s sons, I regard that provision as adequate for the applicant’s maintenance and support. In the end, in monetary terms, the result sought by the applicant is not much different from that proposed by the deceased himself.
  1. [56]
    I conclude the applicant has not demonstrated she has been left without adequate provision from the estate of the deceased for her proper maintenance and support.

Whether whole of proceedings should also be dismissed

  1. [57]
    These findings have proceeded on the basis of acceptance of the applicant’s contentions as to the nature of, and her contribution to, the relationship between the applicant and deceased. On this application, the applicant has failed to establish she has been left without adequate provision from the estate of the deceased for her proper maintenance and support. The same question arises for consideration in the proceedings commenced by originating application and the same finding must follow in the event the matter proceeds to trial.
  1. [58]
    Rule 483 of the Uniform Civil Procedure Rules 1999 provides the court with power to make an order for the decision by the court of a question arising in a proceeding before, at, or after the trial of the proceeding. Rule 482 provides that can be a question or issue in a proceeding of fact, or law, or both, and whether raised by the pleadings or otherwise. Rule 484 provides that if such a question is decided, the court may make an order appropriate to the circumstances of the case. Rule 485 provides the court may, upon determining the question, if appropriate, dismiss the proceeding or the whole or part of a claim for relief in the proceeding.
  1. [59]
    As is accepted by both parties, the application in the proceeding raises the jurisdictional question under s 41 of the Succession Act as to whether adequate provision has not been made from the estate of the deceased for the proper maintenance and support of the applicant. The same question arises in the proceedings commenced by originating application. In those circumstances, I order the question of whether adequate provision has not been made from the estate of the deceased for the proper maintenance and support of the applicant should first be determined by the court. For the reasons expressed above, I conclude that adequate provision for the applicant has been made from the deceased’s estate.
  1. [60]
    In those circumstances, the present application in the proceedings should be refused and the whole of the proceedings should be dismissed.
  1. [61]
    I will hear the parties as to costs.

Orders

  1. [62]
    The orders of the court are as follows:
  1. The application filed on 10 September 2020 is refused.
  2. The originating application filed on 3 April 2019 is dismissed.

Footnotes

[1](1994) 181 CLR 201. See also Vigolo v Bostin (2005) 221 CLR 191.

[2]Per Mason CJ, Deane, McHugh JJ at 208-211.

[3][2015] QCA 286. See also: Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408, at 416 [24]; Watts v The Public Trustee of Queensland [2010] QSC 410, at [11]-[14].

[4]At [30].

[5][2010] QSC 410.

[6]At [15]. See also Affoo at 416, [24]; Abrahams at [35].

[7]Section 41(8) of the Succession Act.

Close

Editorial Notes

  • Published Case Name:

    Leach v The Public Trustee of Queensland

  • Shortened Case Name:

    Leach v The Public Trustee of Queensland

  • MNC:

    [2020] QDC 284

  • Court:

    QDC

  • Judge(s):

    Lynch QC DCJ

  • Date:

    13 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Abrahams v Abrahams [2015] QCA 286
3 citations
Jump To
Cite 1 - [2015] QCA 286
Cite 2 - [2015] QCA 286
Cite 3 - [2015] QCA 286
Affoo v Public Trustee of Queensland[2012] 1 Qd R 408; [2011] QSC 309
3 citations
Jump To
Cite 1 - [2012] 1 Qd R 408
Cite 2 - [2012] 1 Qd R 408
Cite 3 - [2012] 1 Qd R 408
Singer v Berhouse (1994) 181 C.L.R 201
3 citations
Jump To
Cite 1 - (1994) 181 C.L.R 201
Cite 2 - (1994) 181 C.L.R 201
Cite 3 - (1994) 181 C.L.R 201
Vigolo v Bostin (2005) 221 CLR 191
2 citations
Jump To
Cite 1 - (2005) 221 CLR 191
Cite 2 - (2005) 221 CLR 191
Watts v The Public Trustee of Queensland [2010] QSC 410
3 citations
Jump To
Cite 1 - [2010] QSC 410
Cite 2 - [2010] QSC 410
Cite 3 - [2010] QSC 410

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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