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Hartley v Hartley[2021] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Hartley v Hartley [2021] QDC 323

PARTIES:

CRAIG ANDREW HARTLEY (UNDER PART 4 OF THE SUCCESSION ACT)

(Applicant)

v

SHANE MICHAEL HARTLEY (AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED))

(Respondent)

FILE NO:

27 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Cairns

DELIVERED ON:

14 December 2021

DELIVERED AT:

Cairns

HEARING DATE:

12 & 13 May 2021

JUDGE:

Morzone QC DCJ

ORDER:

  1. I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – CHILD – adult son – whether applicant adult son left without adequate provision – consideration of nature of the relationship between the deceased and the applicant and whether disentitling conduct – whether provision ought be made.

LEGISLATION:

Succession Act 1981 (Qld) ss 40, 41(1) & 41(2)(c)

CASES:

Blore v Lang (1960) 104 CLR 124

Bosch v Perpetual Trustee Co Ltd (1938) AC 463

Freeman & Ors v Jacques [2006] 1 Qd R 318

Hills v Chalk & Ors [2008] QCA 159

Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 13

Perpetual Trustee Queensland Ltd v Mayne [1992] QCA 417 

Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9

Re Hallahan (1918) 18 SR (NSW)

Re Hatte [1943] St R Qd 1

Re Sinnott [1948] VLR 279 at 280

Singer v Berghouse (1994) 181 CLR 201

Stewart v Stewart [2015] QSC 238

White v Barron (1980) 144 CLR 431

COUNSEL:

T Naylor for the Applicant

D Topp for the Respondent

SOLICITORS:

Maurice Blackburn Lawyers for the Applicant

Cairns Beaches Law & Conveyancing for the Respondent

Introduction

  1. [1]
    The 49 year old applicant who was expressly excluded from his deceased mother’s will now applies for adequate provision for his proper maintenance and support from her estate.
  2. [2]
    The deceased died over 5 years ago on 4 June 2016.  She was survived by her four sons – Shane aged 52 who is also the executor, Peter who is nearly 51, the 49 year old applicant, and Damian aged 45.  In her last will made on 2 March 2015, the deceased bequeathed three house properties to the applicant’s brothers and a car to Shane, with the residue to be shared between the applicant’s brothers.   The will makes no provision for the applicant, and the deceased expressly explains his exclusion in a statutory declaration
  3. [3]
    The applicant endures in hopeless circumstances receiving the disability support pension because of a sports injury suffered when he was about 20 years old, he lives in community housing and has no assets.  The applicant argues that these circumstances are a product of his disruptive and traumatic upbringing, exposure to drugs and alcohol from an early age and drug abuse since about 13 years old.  The applicant has suffered from drug and alcohol addiction, served imprisonment for drug related offending, had stolen from his mother, needed significant financial and emotional support, and has no realistic future employment prospects. 
  4. [4]
    The executor, the deceased eldest son, opposes the application on the grounds that the applicant is guilty of disentitling conduct comprised of stealing from the deceased, hostility, exposing her to violence by drug associates, damaging property, physical domestic violence, and psychological stress and anxiety.  The estate is mainly comprised of three separate houses.  Any cash at bank has been exhausted in the administration of the estate, legal costs and mortgage reduction.  The deceased’s other sons enjoy the bequeath of a house each but otherwise live in very modest circumstances.  It seems to me that the executor is blinded by his own beneficial interest, his desire to uphold the status quo and discontentment with the proceedings.
  5. [5]
    I am not satisfied that the applicant’s conduct is disentitling, but more of a demonstration of his lame duck status consequent upon his tumultuous childhood, physical, sexual, and emotional abuse, exposure to drugs, and drug addicted reckless lifestyle.  I have found that adequate provision was not made for the proper maintenance, education and advancement in life of the applicant and provision ought to be made out of the deceased’s estate for the applicant.
  6. [6]
    I will order that further provision be made for the proper maintenance and support of the applicant in a specific bequest of $150,000.00 and leaving the residual estate to be shared equally by the respondent beneficiaries.  I will hear further from the parties as to the terms of orders and any issue as to costs.

Adequate Provision

  1. [7]
    The applicant has standing to apply for adequate provision as a child of the deceased within the meaning of s 40 of the Act.  Section 41(1) of the Act relevantly provides:
  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.

  1. (2)
    The court may—
  1. (a)
    attach such conditions to the order as it thinks fit; or
  1. (b)
    if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
  1. (c)
    refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.”
  1. [8]
    In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed:[1]
  1. First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support; and
  2. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.
  1. [9]
    Further relevant to the first limb, is whether the applicant’s character or conduct disentitles him to any benefit of an order, or whose circumstances warrant refusal reasonable, pursuant to s 41(2)(c) of the Act.

Is the applicant left without adequate provision?

  1. [10]
    The first stage of the inquiry is whether the disposition of the estate by the will made adequate provision for the proper maintenance and support of the applicant. 
  2. [11]
    This goes to jurisdiction and is to be determined at the date of the death of the deceased, including matters which could be reasonably foreseen at that time.[2]  The fact that a will is morally unjust is not enough to warrant alternation to the disposition of the property.[3]
  3. [12]
    In Singer v Berghouse,[4] provides that the jurisdictional question requires:

[A]n 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.”

  1. [13]
    The inquiry is more than an assessment of an applicant’s needs.  It involves an evaluative balancing of all the relevant considerations to determine what provision a wise and just person in the position of the deceased would have made.[5]
  2. [14]
    As Keane JA (as his Honour then was) observed in Hills v Chalk & Ors:[6]

“Judicial statements of high and longstanding authority explain that the evaluative assessment whether ‘adequate provision’ has not been made for the ‘proper maintenance and support’ of an eligible person must be made from the perspective of the deceased person on the assumption that the deceased was alert to the considerations relevant to the making of ‘adequate’ provision for the ‘proper maintenance and support’ of the claimant. In Bosch v Perpetual Trustee Co ([1938] AC 463) Lord Romer, delivering the advice of the Judicial Committee of the Privy Council said that ‘in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father’.”

  1. [15]
    An adult son is not in a strong position for an application for further provision because he is presumed able to support himself,[7] unless he shows some special need or some special claim to justify intervention by the Court as Gibbs J said in Hughes v National Trustees, Executors and Agency Company of Australia Limited[8]:

It is well settled that these general principles apply to the case of an adult son as well as to other cases.  The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support.  In Re Sinnott Fullagar J said:

‘No special principle is to be applied in the case of an adult son.  But the approach of the court must be different.  In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported.  But an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.’

More recent cases confirm the view there expressed: see Stott v Cook; Pontifical Society for the Propagation of the Faith v Scales; Re Buckland, Deceased [No. 2]; Re Adams, Deceased.  In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways.  In other cases a son who has done nothing for his parents may have a special need.  This may be because he suffers from some physical or mental infirmity but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support.  He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependants who rely on him for support which he cannot adequately provide from his own resources.  There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances – that is, on all the facts that existed at the date of death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.” (References omitted)

  1. [16]
    Further, critical to this case, and about which I will expand on later, pursuant to s 41(2)(c) of the Succession Act, is whether the defendant’s character or conduct warrants disentitlement from any order or reasonable refusal of any benefit.

The Will

  1. [17]
    The deceased made her last will on 2 March 2015, which was granted probate on 4 April 2018.  By her last will, the deceased:
    1. (a)
      Appointed her eldest son, Shane Michael Hartley as the executor;
    2. (b)
      Leaves a real property to each of her other three sons - Shane Michael Hartley, Peter Barry Hartley, and Damian Troy Hartley;
    3. (c)
      Leaves a car to Shane Michael Hartley;
    4. (d)
      Divides the residue of the estate between her other three sons - Shane Michael Hartley, Peter Barry Hartley, and Damian Troy Hartley;
  2. [18]
    The deceased also made a statutory declaration on 2 March 2015, in which she set out the reasons why she had made no provision for the applicant.

The applicant’s financial circumstances

  1. [19]
    The applicant was born on 8 December 1972 and is now aged 49 years.  His assets are limited to his personal effects. He is unemployed and currently receives a disability pension of $1,042.40 per fortnight as follows:

Disability support pension $ 826.20

Energy Supplement $ 14.10

Pension supplement  $ 67.30

Rent assistance  $ 134.80

  1. [20]
    From this pension the applicant’s current liability repayments and rental payment are deducted Centrepay fortnightly as follows:

Centrelink advance payment $96.90

Child support debt $16.38

Bond loan $20.00

Rent deduction  $350.00

  1. [21]
    The applicant’s income is approximately $2084 per month and his total deductions and expenses total approximately $1607 leaving him an estimated surplus of around $470 per month.  He has no assets other than his personal effects and very limited savings.  His criminal history, limited work experience and continuing disability render him commercially unemployable.
  2. [22]
    It seems to me that the applicant lives frugally, having estimated his expenses modestly and without the inclusion of other necessaries of life, such as medical, dental or clothing expenses.  I accept that the applicant is in a necessitous position in relation to his future maintenance.

The size of the deceased’s estate

  1. [23]
    The deceased’s estate is relatively modest and is made up of three real properties that are estimated to value $1,250,000 and $42,144.19 in savings. The savings amount has since been used to pay off the mortgage of the Tills Street property and the remainder was paid to the Lake Eacham property mortgage and the remaining liabilities of the estate total around $50,000. 
  2. [24]
    According to the list of estate assets and liabilities prepared on behalf of the executor, the estate is comprised of the following:

ASSETS

REAL PROPERTY

275 Pease St Edge Hill

30 Tills Street Edge Hill

58 Windfield Rd Lake Eacham

TOTAL

VALUE

E$350,000

E$350,000

E$550,000

_______________

E$1,250,000

LIABILITIES

Mortgage over Lake Eacham property and secured by Pease Street property as at July 2020

Debt owing to Peter Hartley Payment of costs and outlays for Probate

Debt to Shane Hartley

Debt to Damian Hartley

Outstanding Rates & Charges Tills St

Outstanding Rates & Charges Pease St

Tablelands Outstanding Rates

Total

$19,468.45

5,000.00

6,665.00

3,335.00

5,545.14

4,696.44

$5,314.05

_______________

$50,024.08

Probate costs

Costs for FPA

Costs of FPA

  1. [25]
    It is difficult to ascertain the present value of the estate with the best evidence of valuation being curb side appraisals and comparatives, and there was no better evidence of the current value of the assets despite likely market increases since the executor’s affidavit of 26 August 2020.
  2. [26]
    There are outstanding council rates in respect of each property.  While some of the rates were initially paid after the deceased died, the executor was apparently advised not to pay the rates in light of this application for adequate provision. The car, bequeath to Shane in clause 7(e) of the will, is not featured in the estate asset and liabilities table, but I am unable to discern whether it has adeemed.
  3. [27]
    Even so, valued at $1,200,000 with its composition, a modest provision for the applicant will impact upon the dispositions made to the respondent beneficiaries as the estate is made up of three house properties, each intended for each of the three beneficiary sons.

The competing claims upon the deceased’s estate.

  1. [28]
    The competing claims comprise the deceased’s other three sons who beneficiaries under the will, namely:
    1. (a)
      Shane Michael Hartley born on 27 September 1969 and now aged 52 years;
    2. (b)
      Peter Barry Hartley born on 22 December 1970 and nearly 51 years old;
    3. (c)
      Damian Troy Hartley born on 5 May 1976 and now aged 45 years.
  2. [29]
    All three - Shane, Peter and Damian are unemployed and receive Centrelink support.  Shane lost his job as a consequence of COVID-19, and to date has been unable to find new employment.  Peter and Damian each anticipated it would be difficult for each of them to obtain employment in the future due to ongoing impairments.
  3. [30]
    None of the named beneficiaries own real property or have any assets of significant value despite past gainful employment.  Unusually, the youngest son Damian also supports the applicant’s daughter using his Centrelink payments and does not receive child support or carer benefits.  Each of the men dispose to incurring weekly expenses in excess of their income.  How that is sustained or sustainable is a mystery to me.
  4. [31]
    Shane, Peter and Damian currently live ‘rent free’ in the houses subject of their individual bequests under the will.  I accept that Peter has spent considerable time, money, effort, and skills to renovating and refurbishing the houses, mainly during the deceased’s lifetime, and has developed a particular affinity to the Lake Eacham house property in which he lives.  But I am unable to discern any quantifiable beneficial interest due to those improvements.  None of beneficiaries want to lose their houses to accommodate any further provision for the applicant, except Peter was tacitly willing to extent some accommodation to the applicant if he changed, saying – “To tell the truth – if you could show me that he’d stopped stealing; stopped hurting; stopped his – whatever he does for whatever reason – I’d like to see him happy.  I’d like to actually have someone to help me – not hinderance me.  He’s never helped anybody but himself.
  5. [32]
    Generally, Shane, Peter and Damian are in relatively similar financial circumstances to the applicant with very modest means and living circumstances, but enjoy a greater level of security of accommodation with their present entitlements under the will, which they currently enjoy rent free.

The nature of the relationship between the deceased and the applicant

  1. [33]
    I was generally impressed with the applicant in his evidence.  Despite lacking clear recall of some things, he presented as a reliable witness. He seemed forthright and candid about his relationship with his mother, including several matters averse to himself.  Although he displayed memory gaps and vagueness, which I accept is a consequence of suffering a head trauma as a baby, his drug abuse and effluxion of time.  This has coloured his recall and explanations about his plight in life and conduct, especially vis-à-vis his mother.  However, I prefer his evidence where it conflicted with the speculative conjecture of his brothers. 
  2. [34]
    The applicant was the third of three boys and lived with the deceased though his childhood and on and off throughout his adult life. 
  3. [35]
    He had a tumultuous upbringing while the deceased tried to manage four sons born within 7 years to different fathers.  The deceased maintained several long-term relationships.  She took in boarders and worked full time to make ends meet.  The applicant recalled a stressful household absent stable parental guidance.  Such was the dynamic that the applicant, Shane and Peter were sent to Yeppoon Bush Children’s home in primary school.  In contrast to Shane and Peter who stayed for a short period, the applicant was singled out to spend about 2 years in that place. 
  4. [36]
    But while at the Yeppoon Bush Children’s home, the applicant was sexually assaulted by a school nurse and was later sexually assaulted by a neighbour.  He did not disclose these to his mother, but only to an aunt. 
  5. [37]
    He was also exposed to drugs and alcohol early in life.  The applicant was aware that, during his early high school years, his mother sold cannabis to about 10 different customers from the family home, even recruiting her sons from time to time.  The deceased would purchase bulk marijuana and use the family dining room table to break it down into smaller quantities to on-sell and use herself.  He would steal and smoke the butts of his mother’s marijuana joints at age 13 or 14.  He began his lifestyle of drinking alcohol and smoking marijuana at home from his early teens.  He was later expelled from several secondary schools. 
  6. [38]
    The applicant left home to live with his girlfriend for about 2 years, but he returned to live with his mother after that relationship broke down in 2001.  The deceased provided significant support as the applicant graduated to using methamphetamine and committing offences.  She supported him through multiple Magistrates Court and Drug Court appearances, gave him chance after chance, gave him a car and money, and allowed him to live with her and at other properties, including at one point, at the Lake Eacham property to remove himself from Cairns in around 2008, and later with his drug addicted partner and their child from mid 2009.  For the most part he lived at the Pease Street property until about 2013.
  7. [39]
    Whilst I accept that the applicant is now clean of methamphetamine since July 2020 and has removed himself from past influences to reduce relapse, his mother never got to see it.  Her periodic optimism was repetitively thwarted by relapse and trouble.  Throughout her life, the deceased repeatedly assisted the applicant providing him with money, a place to live, a shower and food, standing by him and helping where possible throughout his life, he lived with her at the Pease Street property until around 2011 to 2012.  Sometime later the deceased became the guardian of the applicant’s daughter who lived with her at Pease Street and allowed the applicant to visit his daughter there provided he was not affected by drugs.  The child continues to live at the Pease Street property with Damian as her guardian. 
  8. [40]
    The deceased endured much as a mother of the drug addicted applicant - his offending, recklessness, drugged verbal outbursts, fighting and property damage.  It is not contentious that while affected by drugs, the applicant was verbally abusive of the deceased and that he smashed holes in the walls at the Pease Street property. 
  9. [41]
    The deceased had told various people that the applicant had stolen her camera, $1,400-$1,600, her jewellery and $4,500 of her bingo winnings. She references the stealing of $1600 in her statutory declaration but does not mention the loss of the $4,500, the deceased also struck through the part of her statutory declaration refereeing to the camera being stolen.  The applicant does admit to probably taking some amounts of money from time to time and probably taking little bits of the deceased’s jewellery but denies the stealing of $4500 and her camera.  I accept his evidence.
  10. [42]
    Shane attests to constant fighting between the applicant and the deceased throughout his adult life.  He deposes that he received a phone call from the deceased and could hear the applicant ‘smashing stuff in the background’.  He recounts numerous times the applicant used of foul language towards him in the presence of the deceased, a time he and the deceased witnessed the applicant ‘throwing punches at Damian on the driveway’, a time when he saw the applicant standing over Damian, yelling and swearing in the presence of the deceased and time where he heard yelling and screaming in the lounge room and attended to find the applicant standing over the deceased who was sitting at the table with her friend at which time the applicant began yelling at the respondent to fight.  The other brothers also reference similar events to some degree.  The applicant admits that there were periods where he and the deceased would fight, but claims that it would always work out, and he would still be able to call the deceased and drop in for a shower and food.  He admits that his conduct while affected by drugs would have caused the deceased significant stress and concern and that he would have undoubtedly been difficult to live with while affected by drugs, but the deceased continuously allowed him to return to live with her and continued to support him.
  11. [43]
    The applicant denies ever physically assaulting the deceased with the only evidence of an event to the contrary being that of Shane and Damian seeing the applicant grab the deceased on the arm during an argument in early 2015 about a camera.  There is no other objective evidence put before the court of the applicant being physically abusive of the deceased.  There was no evidence that the Deceased took out a restraining order against the applicant as she asserts in paragraph 7 of her statutory declaration dated 2 March 2015.  However, it is true that the deceased was named in a domestic violence order made against the applicant in about 2014 to protect Shane as the aggrieved, the grounds of the application and circumstances of the deceased’s being also named remain unclear.
  12. [44]
    The applicant testified that it was him who applied for a domestic violence order against Shane in about 2014, but had an order made against him when he failed to appear in court.  The court apparently found it necessary and desirable to make a domestic violence order in favour of Shane against applicant, and also naming the deceased. 
  13. [45]
    By the time she made her last will, the deceased’s cancer had returned, her health had deteriorated and it was days before bowel surgery of which she declared “the doctors have given not me a good prognosis for the operation”.  She acknowledged that she was “currently extremely ill with a cancerous tumour in my bowel which is due to be removed on Tuesday 3 March 2015.  The doctors have not given me a good prognosis for this operation”. 
  14. [46]
    She survived the surgery and lived for another 15 months
  15. [47]
    During this period, and despite the protection order and the applicant’s addiction, the deceased remained in contact with the applicant until he was imprisoned in early 2016.  Before his incarceration they spoke over the phone, and she visited him at his residence at a local caravan park and meet him once at the beach.  The last time he saw her was on about January or February 2016.  He later sent cards to her from prison, and he tried to contact her to check on her condition in the months prior to her death.  But his phone calls were not accepted by whoever answered the calls at the Pease Street property.
  16. [48]
    The deceased succumbed to a secondary brain tumourand died on 4 June 2016.
  17. [49]
    It seems to me that the applicant’s relationship with his mother was obviously and persistently challenged and strained by his conduct despite her best efforts of motherly support and care.  There was no breakdown in the relationship or estrangement between them, but her energy and patience waned in her unwell state.  It was only her testamentary generosity that was apparently exhausted by the time of making her will. 

Any special need known and should have been known by the deceased

  1. [50]
    It seems to me that the applicant’s conduct and the relationship between the applicant and his deceased mother was a manifestation of his drug addicted reckless lifestyle, but that was consequent upon his tumultuous childhood, physical, sexual, and emotional abuse, and exposure to drugs at home by his own mother.  Sadly, it seems that the deceased continued supplying marijuana to friends from her Pease Street house until close to her death on 4 June 2016. 
  2. [51]
    He is currently in receipt of a Disability Support pension from Centrelink, and has received that from of benefit since about his early twenties due to a shoulder injury, and possibly a brain injury as a baby.  He has a long criminal history.  He has limited employment history and no recent experience in paid employment, and as a result, his prospects of obtaining paid employment in the future are minimal.  He owns no assets other than his personal effects.  He has only limited savings that he has been able to accumulate in the last year.
  3. [52]
    At the time of her death, the applicant knew of past events and all the eventualities that might at that date reasonably have been foreseen by her with that knowledge of his personal and financial circumstances.

The deceased’s wishes

  1. [53]
    The deceased first signed her will on the 24th of November 1977 bequeathing her estate to the four of her sons in equal shares.  She revoked that will and replaced it with her last will and testament on the 2nd of March 2015.
  2. [54]
    In this last will, she gave all title and interest in the property 30 Tills Street, Westcourt to her first son, Shane, all title and interest in the property at Rural 58 Winfield Road Lake Barrine to her second son, Peter, and all title and interest in the property at 275 Pease Street to her fourth son, Damian (who continues as the guardian of the applicant’s daughter).  She also gave any motor vehicle that she owned at the time of her death to Shane and the remainder of her estate was given equally to Shane, Peter and Damian.
  3. [55]
    On the same day the deceased signed her last will, she also signed a statutory declaration giving her reasons for leaving the applicant out of the will.[9]  She declared that:

“3. I have purposefully left Craig Andrew Hartley out of my Will and do not wish him or his girlfriend to benefit from my estate.

4. During his lifetime he had had plenty of money given to him at all times.  I have purchased him and his girlfriend a vehicle recently as well.

5. He is currently addicted to the drug ICE and resides in a hovel with his girlfriend who is also on drugs and a chronic alcoholic.

6. Craig has recently been in prison for his crimes which include breaking and entering, drug possession and assault.  I have a restraining order on him.

7. He has recently broken into my home and stolen from me which is why I took the restraining order out on him.

8. I do not wish him to benefit at all from my estate as he is a big disappointment to me and has done nothing to help me during my illness but cause me a great deal of stress.

9.  He has recently stolen $1600.00 from me and my camera which had all my holiday photos on it from what would have been my last holiday with my brother before I die.

10.   I have had the opportunity of taking legal advice in this area of law and have been advised that unfortunately there is no sure was that I can ensure that Craig does not take any benefit from my estate.

11. I am hopeful that a statutory declaration written by me just prior to my death will deter the court from making any order which will allow Craig and his girlfriend to spend my hard earned money on drugs to destroy not only their lives but their daughters as well.” 

  1. [56]
    The deceased also expressed similar sentiments to others.
  2. [57]
    Lyn Moore, a friend of about 10 years,  disposes that in early 2015 the deceased told her that she was going to change her will “because Craig had gone too far with his stealing and drug habits and she realised that he would never change”, and added that “the other boys Shane, Peter and Damian would get a property each as each of them had been very good to her during the course of her life”.
  3. [58]
    Gail Robertson, the deceased’s sister, deposed that “in the last few month leading up to her death, she (the deceased) told me that she was not putting Craig in her will because of everything he has put her through”.
  4. [59]
    Shane also testified that when the deceased returned from making her new will on 2 March 2015 she told him that the applicant was “getting nothing, he has gotten enough from me over the years” or words to that effect.
  5. [60]
    These matters raised by the deceased in the statutory declaration and uttered to others, go to her reasons for excluding the applicant, and are not evidence in themselves.
  6. [61]
    However, many of the matters are made out on the evidence.  I accept that the deceased directly and indirectly gave monetary support to the applicant at various times and also gave him a car when he was to retreat to the Lake Eacham property to remove himself from Cairns in around 2008.  However, it is not clear what the deceased perceived was “plenty of money” or the state of the car as at the date of the will.  It is also borne out that he was addicted to Methamphetamine, abusing alcohol and living impoverished, and his criminal history is plain.  The matters are consistent with his childhood abuse and exposure and later adult experience.  There is no evidence of that she “took the restraining order out on him” or any reason for doing so, as explained above.  But there can be little doubt of the deceased’s perceived disappointment, lack of help, and stress.  The applicant admits to stealing money, such is the tendency of a drug addict, and it is likely to be in the order of $1600, and taking little bits of the deceased’s jewellery, but I accept his denial of breaking in and stealing of $4500 of bingo winnings or her camera.  As to the latter it is not clear why the deceased recanted from the allegations that about the camera. 
  7. [62]
    Consistent with these matters, the respondent executor opposes the application for further provision because of the applicant’s disentitling conduct comprised of stealing from the deceased, hostility, exposing her to violence by drug associates, damaging property, physical domestic violence, and psychological stress and anxiety.

Is the applicant’s character or conduct disentitling to any benefit of an order, or whose circumstances warrant reasonable refusal?

  1. [63]
    Pursuant to section 41(2)(c) of the Succession Act, the Court may refuse to make an order in favour of any person whose character or conduct is such that it, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as to make such a refusal reasonable.
  2. [64]
    The disentitling character or conduct must be such to displace the applicant’s otherwise meritorious claim for provision for proper maintenance and support.  The more meritorious the applicant's case for provision, the more reprehensible the conduct must be to disentitle the applicant to the benefit of an order or make such refusal reasonable.[10]  This is consistent with the testator’s duty to assist the “lame duck” with proper maintenance and support unless he is morally or otherwise undeserving.[11]
  3. [65]
    Conduct exhibited by a child may be considered disentitling if the conduct shows the complete rejection or positive ill-treatment of the parent by the child or a criminal act directed towards the parent, for example stealing.[12]
  4. [66]
    The relationship between the applicant and his deceased mother was characterised by the drug addicted and alcoholic lifestyle attended by his offending, recklessness, verbal outbursts, arguments and property damage.  I accept that Shane and Damian saw the applicant grab the deceased’s arm but the circumstances are intolerably unclear.  The deceased was also exposed to his violence between the siblings, for example, when the applicant punched Damian’s head in the Pease Street driveway, when he punched the head of the deceased’s former partner, Westwood and the applicant’s hostility toward Shane warranting a domestic violence order.
  5. [67]
    The deceased and others were also subjected to a frightening home invasion by masked men in the deceased’s Pease Street house shortly before Christmas either 2010 or 2011.  Shane and Damian attribute the traumatic event to the applicant’s drug associates.  However, the applicant purports to lay the blame with the deceased’s ‘stash of drugs’ which he claimed seemingly to prevent the deceased from being sanctioned.  He described that the invaders ‘put a baton to my throat … I got bashed up… They hit me across the head and my face with the baton…’, but apparently left the other occupants unharmed.  In the end, I think there is insufficient evidence to attribute the event to the applicant’s lifestyle as distinct from the deceased’s drug dealing.
  6. [68]
    Clearly, the applicant’s intoxicated conduct caused his mother significant stress and concern.  He would have been difficult to live with, and despite this, the deceased allowed the applicant to return to live in the Pease Street house and continued to support him.  The applicant accepts that he wilfully damaged the walls of the Pease Street house.  Ms Ford recalled that the applicant ‘does have a temper and I have witnessed him hit or punch a wall’ at the Pease Street house.
  7. [69]
    As to matter of stealing, whilst the deceased may have complained to others that applicant stole $1,400 or $1,600, her camera, her jewellery and $4,500 of her winnings from bingo in 2009, the evidence falls well short of disentitling conduct.  The applicant also denied stealing bingo winnings or camera, and he denied stealing his grandmother’s antique sewing machine or jewellery.  These were not of significant concern to the deceased since she made no mention in her statutory declaration that the appellant stole her jewellery and the hearsay evidence of Lyn Moore is inadmissible as to the truth of the statement.  I accept that Damian showed the applicant the stash of $10,000 in bingo winnings at Pease Street, and the applicant admitted to probably taking some of the money, and little bits of his mother’s jewellery because he was “pretty bad back then”.  It is also the case that the deceased kept large amounts of cash in the Pease Street house during her life, including while the drug and alcohol addicted defendant and girlfriend were living there.  This was not a matter that warranted the deceased’s wrath in her statutory declaration.
  8. [70]
    Similarly, there is no evidence about the applicant stealing the camera, on the contrary, Peter testified that the camera was returned to the deceased.  I also note that the deceased apparently withdrew her declared comment about the camera by striking through those words.  
  9. [71]
    Then there is the applicant’s persistent and overbearing drug and alcohol addiction and misuse.  In her statutory declaration, the deceased expressed concern about the propensity of the applicant and his then girlfriend spending her money on drugs.  The applicant seeks to equate this behaviour to that of a “spendthrift” or gambler.[13]  I disagree.  Unlike a spend spendthrift and gambler, the applicant’s conduct was clothed in illegality.   On my assessment I think that the defendant’s drug and alcohol addicted state and behaviour, when taken in its proper context, is not sufficiently serious and falls short of being characterised as disentitling conduct.[14]  His character and lifestyle were shaped at an early age as he navigated a tumultuous childhood, physical, sexual, and emotional abuse, and exposure to drugs at home by his own mother.  Ineffective parenting, and later adult influences entrenched his drug and alcohol addiction, which manifest in the behaviour now subject of complaint.
  10. [72]
    I conclude that the applicant is not disentitled to adequate provision from the deceased’s estate.  I think that a wise and just testatrix, having regard to the applicant’s hopeless state and its genesis, should have made some provision for the applicant in her will.

What provision ought to be made?

  1. [73]
    The second stage involves a determination of what provision, having regard to all the circumstances, would be “proper maintenance” for the applicant. 
  2. [74]
    The applicant contends that he should be awarded a one quarter share of the residue of the estate as adequate provision for his proper maintenance and support, and the shares of the residuary estate to Shane, Peter and Damian should be diminished accordingly.
  3. [75]
    “Adequate provision for the proper maintenance etc” means more than maintenance at a basic level.  It means maintenance and support at a level or degree appropriate to the applicant in all of the circumstances,[15] which is judged according to prevailing community standards of what is right and appropriate at the time of the trial.[16]  As to a capital sum Mason J remarked in White v Barron[17] albeit regarding a widow:

“A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.”

  1. [76]
    Applegarth J described this stage in Stewart v Stewart,[18] as follows:

“If inadequate provision was made for the applicant, then the court determines what amount the applicant should properly receive from the deceased’s estate.  This requires the court to exercise its discretion in determining what provision a ‘wise and just testator’ would have made in the circumstances.  In exercising its discretion, the matters already considered in connection with the adequacy of any provision become relevant to the determination of what provision should be made.”

  1. [77]
    But the court has no power to make to re-write or make a new will to effect a “fair” distribution of the testator’s estate among the family.[19] 
  2. [78]
    As it was put in Blore v Lang:[20]

“The jurisdiction conferred by the Act is to interfere with the testator’s dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc., and the extent of the interference authorized is to order such provision as the court thinks fit for that person’s proper maintenance.  Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court.  Nor, in a case were a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator’s bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked.  The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case.  The Testator’s Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator’s moral duty to make adequate provision for the proper maintenance of his family – not for the making of what may appear to the court to be a fair distribution of a deceased person’s estate among members of his family.”

  1. [79]
    The 49 year old applicant is of little means and only has his personal effects. He is commercially unemployment and dependant on social security support of $1,042.40 per fortnight comprising the disability support pension, energy supplement, pension supplement and rent assistance.  He is left with an estimated surplus of around $470 per month after his expenses and deduction of his Centrelink advance payment, child support debt, bond loan and rent.  These are modest and do not include other necessaries of life, such as medical, dental or clothing expenses.  The applicant is aging, adequately accommodated, but living in poor economic circumstances and unlikely to improve his position into the future. 
  2. [80]
    The other beneficiaries’ circumstances are also strained, with relatively limited capacity to improve their situation into the future.  Of course, the beneficiaries do not have to justify their receipt of benefits under the will, nor is it an exercise in parity, rather it is for the applicant to demonstrate that he requires further provision for his proper maintenance and support.  I am not prepared to treated the car intended for Shane under clause 7(e) of the will, as adeemed.
  3. [81]
    In these circumstances, I think a capital provision awarded to the applicant is the fairest means of securing his proper maintenance as expected of a ‘wise and just testator’.  A sum should be awarded which recognises the personal and medical difficulties facing the applicant which ensures that he will be in a position to enjoy access to quality health care, sustained rehabilitation, proper maintenance, and secure appropriate accommodation. Taking into all that I have discussed above, and cognisant of the other beneficiaries, I conclude that adequate provision for the proper maintenance and support of the applicant requires a legacy $150,000. 
  4. [82]
    In the result I do not see a basis for making a greater provision in terms of one quarter of the estates as to treat the four sons equally.  Whilst I ought only interfere with the will to the extent necessary to give effect to the legislation, interference of a significant kind might be necessary to at least one of the properties to ensure that proper provision is made for the applicant.  The specific legacy to the applicant will need to be paid from the disposition of one of the properties whether by sale in whole or part.  Given the evidentiary uncertainty as to the current market values of the properties, I am unable to deal further with this aspect other than to observe that it appears that the Lake Eacham property is worth about $200,000 more than the others.  This may be an appropriate resource to fund the specific legacy without unduly interfering with the dispositions in the will beyond the extent necessary to make proper provision for the applicant and recognising the financial position of the other beneficiaries and their respective entitlements under the will. 
  5. [83]
    For these reasons, I conclude that the will of the testator be read and construed as though it contained a provision for the specific legacy of $150,000.00 to the applicant, such legacy to be paid from the proceeds of sale of other property and before disposition of other legacies in the form of real properties.

Orders

  1. [84]
    I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.

Judge DP Morzone QC

Footnotes

[1] J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.

[2] Singer v. Berghouse (1994) 181 CLR 201 at 209-10; Vigolo v. Bostin (2005) 221 CLR 191 at [4]; Green v. Holtom [2006] WASC at [20]; Family Provision in Australia, 3 ed, de Groot & Nickel, para [2.26].

[3]Bosch v. Perpetual Trustee Co Ltd (1938) AC 463 at 478-479.

[4] Singer v Berghouse (1994) 181 CLR 201 at 209-210 per Mason CJ, Deane and McHugh JJ;  See also Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 at 19.

[5] Freeman & Ors v Jacques [2006] 1 Qd R 318 at [29].

[6] Hills v Chalk & Ors [2008] QCA 159 at [40].

[7] Re Sinnott [1948] VLR 279 at 280

[8]       Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 13 at 147-148.

[9] Admitted under s 92 of the Evidence Act 1977 (Qld).  Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134 at 149-150. 

[10] Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134 at 156 per Gibbs J; Re Gilbert (1946) 46 SR (NSW) 318 at 321 per Jordon JCJ, Re Sinnott [1948] VLR 279 at 280 per Fullagar J; Collett & Anor v Knox & Anor [2010] QSC 132 at [145] per McMeekin J.

[11] Re Hatte [1943] St R Qd 1 at 26 per Philp J; approved in Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 134 at 148 – 149 per Gibbs J; Alquist v ANZ Executors & Trustee Company Limited [2004] NSWSC 1116.

[12] Re Hallahan (1918) 18 SR (NSW), Re Hardgraves [1955] St R Qd 601, Re Duncan [1939] VLR 355.

[13] Howarth v Reed (SC (NSW) Eq Div, Powell J, Nos 4431/88 and 4432/88, 21 March 1991 and 15 April 1991, unreported). 

[14] Cf. Pizzino v Pizzino & Anor [2010] QSC 35 at [64] per Mullins J (as she then was); Christie v Edward [2012] WASC 265 at [22] per McKechnie J, and Killiner v Freeman [2000] NSWSC 263 at [50] – [51] per Master McLaughlin of the Supreme Court of New South Wales; See also contra.  Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288, Grey v Harrison (1997) 2 VR 359 and Re Fletcher [1921] NZLR 649

[15]Family Provision After Death, Dickey, p. 102.

[16]Singer v Berghouse (1994) 181 CLR 201; White v. Barron (1980) 144 CLR 431 at 440.

[17] White v Barron (1980) 144 CLR 431 at 444 per Mason J.

[18] Stewart v Stewart [2015] QSC 238 at [13].

[19] Perpetual Trustee Queensland Ltd v. Mayne [1992] QCA 417; Hobbs v. Russo [2005] QSC 201 at [72]; Gray v Mather [2016] NSWSC 699 at [76]; Sung v Malaxos [2015] NSWSC 186 at [5].             

[20] Blore v Lang (1960) 104 CLR 124 at pp. 134-5.

Close

Editorial Notes

  • Published Case Name:

    Hartley v Hartley

  • Shortened Case Name:

    Hartley v Hartley

  • MNC:

    [2021] QDC 323

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    14 Dec 2021

Appeal Status

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

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