Treadwell v Treadwell[2021] QDC 44

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondents apply pursuant to UCPR s 658 for dismissal of an originating application made by each of the first and second applicants (claimants) for proper provision to be made from the estate of the late Maxwell David Treadwell, pursuant to Part 4 Succession Act 1981.

Background

2. [2]
   The claimants are grandchildren of the deceased.  The deceased was born on 27 December 1929 and died on 11 July 2019 aged 89 years.  He left a will dated 11 July 2008.  The will appointed the executors as joint executors and trustees of his will.  In essence, the will provided for his estate to be shared as tenants in common between each of his five children.  The claimants are children of the deceased’s son, Michael Treadwell.  They are aged 12 and 11 respectively.  The claimants are represented by their litigation guardian, June Avery^[1] (the Guardian). The Guardian is the mother of the claimants and the former spouse of Michael Treadwell. 
3. [3]
   Aside from Michael Treadwell’s siblings, Jillian Ruth Cars aged 58, Terry Malcom Treadwell aged 54 and Andrew John Treadwell aged 47, there are no other persons having a prima facie claim upon the estate of the deceased.
4. [4]
   Michael Treadwell and the Guardian separated in approximately April 2012.  The breakdown of their relationship appears to have been acrimonious.  In the 12 months between separation in April 2012 until orders were made in May 2013 Michael had no overnight access or visits with the claimants and they did not stay with him during that period. 
5. [5]
   A court order was made on 17 May 2013 providing that the claimants spend time with him in week one from 9.00am until 5.00pm Saturday and in week two from 9.00am Saturday until 5.00pm Sunday.  The effect of the order was that the claimants spent only one overnight stay with Michael Treadwell each fortnight.  The arrangements provided for in the order of 17 May 2013 continued until further order was made on 26 May 2017 when access was enlarged to provide for the claimants to spend every second weekend from 3.00pm Friday until 5.00pm Sunday with Michael Treadwell, together with parts of the school holidays. 
6. [6]
   Despite those orders, those arrangements were not given effect to.  The Guardian refused the claimant’s regular contact with Michael Treadwell and consequently contravention applications were made in respect of the orders that had been made in the Federal Circuit Court.  The practical effect was that the claimants spent less than three nights per fortnight with Michael Treadwell and ultimately, as a result of the contraventions of the court orders, Michael Treadwell had no contact with the claimants at all between approximately June 2018 and September 2018 and again between January 2019 and April 2019. As Michael resided at the same address as the deceased, the effect was that the claimants had no contact with the deceased during those periods.^[2]  As a result of matrimonial proceedings, a shared parental responsibility arrangement has now been entered into providing each with equal shared parental responsibility and 50 per cent care during school holidays. Otherwise, Michael has access to the claimants for four nights and six days a fortnight during school time. 
7. [7]
   Michael Treadwell and the deceased resided at a residence at 34 Lyndon Road, Capalaba.  That residence included a self-contained granny flat^[3] incorporating a living area, kitchen, bathroom, and two bedrooms.  This part of the house was separated from the rest of the house, which was occupied by the deceased. The deceased resided in the main residence.  There are a couple of steps and a door separating the two discrete living sections of the house. 
8. [8]
   For a number of years prior to his death the deceased was in poor health and had quite poor mobility.^[4]  For instance, he was unable to navigate the steps to move between the area of the house he occupied and the granny flat area that Michael occupied.  He required assistance to get up and down stairs.  The deceased had also been quite ill suffering prostate cancer.  This occasioned him significant difficulty with sleeping, resulting in late nights and late risings the following day.  The deceased required assistance from Michael in respect of many daily tasks.
9. [9]
   So far as financial arrangements between the deceased and Michael were concerned, Michael made financial contributions to the deceased after he moved to the property.  Initially after he first commenced living there he paid $100 per week rent.  Later that sum was reduced to $50 per week in recognition of other non-financial contributions made by Michael to the deceased and to the property, in particular by the provision of care and assistance to the deceased.  Additionally, between moving into the property in 2012 and the deceased’s death, they shared living expenses such as groceries and electricity on a 50/50 basis.  There was an ongoing adjustment of these matters as time progressed.  Additionally, Michael Treadwell did household cleaning and maintained the house and yard as well as undertaking grocery shopping for both.  He also provided transport services for the deceased and often paid 100 per cent of expenses such as rates and electricity.  By reason of that matter he commonly made an adjustment to rent to take into account the deceased’s share of those expenses that were otherwise paid for by him. 
10. [10]
    The need for additional care was exacerbated from December 2014 when the deceased had a serious fall requiring approximately one month’s hospitalisation.  Further falls were reported between 2015 and 2019.  Additionally, the deceased’s general health deteriorated over that time consistent with the deceased’s advancing years.
11. [11]
    In the months leading to his death the deceased was in hospital following falls between 31 May 2019 and 15 June 2019.  He was re-admitted to hospital on 25 June 2019 and remained there until his death on 11 July 2019.
12. [12]
    Against this background, it is apparent that there was only limited contact between the claimants and the deceased.  This matter is objectively corroborated by the child support assessments demonstrating that Michael Treadwell only had the children with him for limited time and that even up to the time of the deceased’s death that time stood at only 14 per cent.  That can be contrasted with the most recent assessment issued in September 2020 which shows the claimants now spend approximately 38 per cent of their time with Michael Treadwell.^[5]
13. [13]
    The claimants base their claim upon the fact that on the occasions they visited Michael Treadwell they resided “under the roof of the deceased” and the assertion that “they were provided for financially by the deceased”. As I will explain later those assertions don’t bear up under close examination.

The Evidence

14. [14]
    The material filed in the application fell into two parts. First was affidavit evidence from the Guardian supporting the claimants’ claim. As the claimants are children aged 11 and 12, understandably they did not swear affidavits in the application. Second was material for the respondent which compromised evidence from each of the deceased’s surviving children deposing to matters of direct observation by them concerning events related to the relationship of the claimants with the deceased.
15. [15]
    The Guardian and the claimants’ father have been the subject of protracted and bitter matrimonial proceedings extending over many years. The relationship between them was, and appears to continue to be, toxic. Understandably in the circumstances the claimants’ father and the Guardian had limited interaction. That extended to the limited interaction between the claimants and their father and in turn the deceased.
16. [16]
    Significantly, the Guardian did not depose to witnessing any direct interaction between the claimants and the deceased. Much of her evidence directed to the matter of maintenance and support was speculative and not founded in fact. It was largely contested by direct evidence of the father and in some instances by his siblings.
17. [17]
    Even if the claimants were to provide evidence it is unlikely anything these children could depose to would displace the sworn testimony of the respondent adults on important matters concerning housing and financial arrangements, holidays and the nature of the contact between the claimants and the deceased on the limited occasions there was contact.

Summary dismissal

18. [18]
    UCPR s 658 permits the court to make at any stage of a proceeding, on the application of a party, any order including judgment that the nature of the case requires.  Here the executors seek dismissal of the proceedings.
19. [19]
    In considering an application of this kind in the context of Part 4, Family Provision, Succession Act 1981, White J in Higgins v Higgins [2005] 2 Qd R 50 noted^[6]:

“[16] The often quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily.  After extracting some expressions from the authorities His Honour said at 129 – 130:

‘As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked in others in cases founded on statutory rules of court…the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.  Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. …But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’  Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.  On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim.  Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possible succeed.”

20. [20]
    Her Honour considered the application under Part 4 to be one considered upon the basis that the claimants “must be assumed to have put [their] best foot forward”.^[7]  Her Honour’s observation was premised upon the presence of the Practice Direction governing family provision applications which is materially identical in this proceeding.
21. [21]
    Additionally Her Honour acknowledged that when considering the question of whether the claimants have raised a prima facie case, that it is understood to mean “…that, in the absence of further evidence, there is evidence upon which a tribunal in fact can, but not must, find for the party raising the prima facie case.”^[8] Her Honour otherwise characterised the test as the case being “one which can be said to be futile so that it ought to be dismissed summarily”.^[9]
22. [22]
    It is in that context that three substantive issues arise here, namely:

1. whether the claimants are dependents as defined in s 40;

2. if dependents, then has adequate provision been made; and

3. if there is an absence of adequate provision, and provision ought be made, should the claimants’ time to make an application be enlarged?

Are the Claimants “Dependents”

23. [23]
    The definition of a dependent is provided for in s 40 of the Succession Act 1991.  For the purposes of Part 4 of the Act:

“dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being

1. (a)
   …

3. (c)
   a person under 18 years of age.”

24. [24]
    The jurisdiction to make an order under s 41 only arises in respect of a claimant who is, inter alia, a “dependent”.  The leading authority on the point is Lhose v Lewis & Anor [2004] 2 Qd R 648 where Mullins J identified that the critical time for determining whether a person was a dependent for the purpose of making an application under s 40 of the Act is at the date of death of the deceased.  Her Honour stated:

“In order to be a dependent the person must at the date of the deceased’s death be ‘wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person.”^[10]

Although as Her Honour observed the matter of maintenance or support has to be considered broadly and is not strictly confined to the time of death.^[11]

25. [25]
    The terms “maintain” and “support” were the subject of comment in Vigolo v Bostin^[12] where Callinan and Heydon JJ said of the words, “maintain, support and advancement”: “Maintenance may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. “Support” similarly may imply provision beyond bare need”.^[13]
26. [26]
    The principal issue here concerns what is meant by “substantially maintained or supported”. Here, as in Lhose, there is no contest that the claimants were not wholly maintained or supported by the deceased at his date of death.  For the most part the claimants resided with the Guardian as they are both her children.  Accordingly, the question here is whether the claimants were being “substantially maintained or supported by the deceased” at the time of his death. 
27. [27]
    The term “substantially” has been considered in this context.  On this point in  Lhose v Lewis Mullins J at [87] observed:

“The issue was considered in Re Cobb [1989] 1 Qd R 522.  The parties in that matter until Mr Cobb’s death had worked, earning substantially the same amounts of income and had come to an agreement as to the dispositions of their respective incomes with the applicant in that matter spending the whole of her income on groceries, electricity, the telephone and her personal expenses and Mr Cobb paying the rent for the maintenance of the premises in which they lived.  Mr Cobb lived very frugally and after the agreement payments out of his income he had balances which by agreement between the parties were banked in his name, but were intended in due course to be used for the establishment of a jointly owned home.  Kneipp J stated at 523:

‘However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like.  It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition.  In the present case, having regard to the agreement between the parties and to the dispositions of their respective incomes, it seems to me at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them.  In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions.”

[my emphasis]

28. [28]
    The observations of Kneipp J were made in the context of a family provision application concerning a de facto.  Nonetheless, given the ambit of Part 4 applications, I accept that approach would also inform the approach to any claimant, including as in this case, a grandchild, especially given the category of dependents provided for by s. 40 enlarges the class of potential claimants s. 41(1) permits.  So much is consistent with the view expressed by Judge Long QC in McElligott v McElligott [2014] QDC 178 at [26] with whom I agree.
29. [29]
    The term “substantially” was also considered in the context of the position under s 57 Succession Act 2006 (NSW) in the decision of Bowditch v NSW Trustee and Guardian.^[14] There that provision provided a grandchild must be “wholly or partly dependant on the deceased”. Concerning that provision Hallen AsJ stated,

“In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held the word “partly” in the phrase “partly dependant”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”’ or perhaps “significantly”. Meagher JA commented that “[C]ommon sense requires that certain trivial activities should be disregarded”.^[15]

30. [30]
    This decision was the subject of favourable comment in Chapple v Wilcox ^[16] where there were no adverse remarks made concerning the decision in Bowditch on this point.
31. [31]
    Accordingly it seems the NSW Court of  Appeal consider “partly” to be something less than “substantially” but “more than minimally” or perhaps “significantly”.
32. [32]
    It follows, in my view, that the question of being “substantially maintained” requires a consideration taking an overall or global view of the circumstances and must demonstrate something more than being “more than minimally” or “significantly” maintained.
33. [33]
    The term “maintained” provided for in s 40 does not cause difficulty. It is accorded its natural meaning. However in addition to an applicant being maintained s. 40 also provides for consideration of the applicant being “supported”. That matter was commented upon by Mullins J in Lhose v Lewis where Her Honour cited with approval on this point the New Zealand decision of William v Aucut.^[17] In particular Mullins J observed the joint judgment of the four members of the court in that case stated:

“The test is whether adequate provision has been made for the proper maintenance and support of claimants.  “Support” is an additional and wider term than “maintenance”.  In using the composite expression, and requiring “proper” maintenance support, the legislation recognises that a broader approach is required and the authorities referred to establish that the moral and ethical considerations are to be taken into account in determining the scope of the duties.  “Support” is used in its wider dictionary sense of “sustaining, providing comfort”.  A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased.  Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case.”^[18]

34. [34]
    Her Honour accepted that the word “support” is a wider concept than “maintenance” incorporating moral and ethical considerations such as having an important involvement in the overall life of the deceased. However consideration of the term “supported” also requires consideration of the qualification “substantially”. So although “support” might prima facie be evident in the context of a grandparent/grandchild relationship, that relationship alone is not sufficient without more to constitute a basis for finding “support” in terms of s.41. There must be substantial support, meaning the relationship between the claimants and the deceased had to be one constituting more than its mere existence. It had to possess qualities demonstrating an important involvement by the claimants in the life of the deceased. In context that might, for instance, be evidenced by the presence of evidence related to a shared activity or interests actively pursued by them, or perhaps photographs revealing memorable and cherished occasions of such special interests shared between them demonstrating something more than the common indicia of a grandparent/grandchild relationship.
35. [35]
    Section 40 provides for dependency that the claimant be “wholly or substantially maintained or supported”. As a matter of statutory interpretation it seems plain that the disjunctive “or” in the context of “wholly or substantially” is intended to be interpreted as alternative considerations. No other sensible interpretation is apparent. However concerning the use of the disjunctive “or” in the context of “maintained or supported” the interpretation of the disjunctive is not so clear cut. In that case the requirements could be interpreted to be either cumulative or alternative. A useful discussion concerning the approach to resolving conflicts of interpretation in this context appears in Statutory Interpretation in Australia^[19] at paragraphs 2.25 and 2.26. Adopting a purposeful approach to interpretation in the context of the Act, the disjunctive “or” should include reading it as “and” thereby imposing a requirement to consider “maintenance” and “support” cumulatively. That approach appears consistent with the approach taken by Mullins J in Lhose v Lewis.
36. [36]
    However here, as was the situation in McElligott v McElligott [2014] QDC 178, the issue of maintenance and support was further clouded by the prospect of concomitant benefit by the deceased to his son Michael who has a prima facie right to claim and the claimants whose entitlements, if any, arose by operation of facts supporting the extended definition of “dependant” provided for by s 40.  This clouding further limited the prospect of the deceased providing substantial maintenance or support to them.
37. [37]
    McElligott was a clear case of concomitant benefit.  That is similar to this case although here any concomitant interest is qualified because, unlike in McElligott, the claimants ordinarily were not members of their father’s household. In my view the prospect here of concomitant interest further diminishes the already tenuous relevant connection of dependency between the claimants and the deceased.  The general difficulty a concomitant benefit has upon this type of claim was amplified by His Honour’s observations in the context of the matter before him that:

“… it is quite impossible to separate the benefit of this [being in that case plans for the claimants, their mother and the deceased to relocate to a new home] to the children from the concomitant benefit to them or to their mother (she being) daughter of the deceased.”^[20]

38. [38]
    For reasons explained I do not think the evidence supports a conclusion of substantial maintenance or support. The relationship between the claimants and the deceased was extremely limited. The matter of concomitant benefit further diminishes the claimant’s assertion of dependency. It could be, at best, characterised as consistent with a grandfatherly/grandchildren-style relationship.
39. [39]
    As His Honour concluded at [55] in addressing the complication concomitant circumstances occasion:

“Notwithstanding that for s 40 of the Succession Act 1981 substantial rather than whole maintenance or support may suffice, as a matter of the application of this requirement in the context of prevailing community standards and in the context of the provision being a condition precedent to the application of a test which was described by Gleeson CJ in Vigola v Bostin,^[21] as requiring a value judgment based on considerations of moral claims and moral duty, a requirement of directness of such dependency should be recognised.  The indirectness of any maintenance or support, such as is evident here and implicit in an arrangement where the children remained in the care of their ordinary primary care-giver, their mother and who otherwise herself provided substantially for their maintenance or support, means that it should be concluded that any such maintenance or support, as was provided by the deceased for the care of the children, was provided as much to and for the benefit of their mother and is therefore most unlikely to satisfy the requirements of s 40.  It can also be noted such a conclusion is consistent with the approach taken in Lhose v Lewis & Anor, in that substantial maintenance or support requires something that may be described as being “in the main” or “as to the greater part”.^[22]

40. [40]
    It was upon that basis that Long SC DCJ determined that the claim before him was most unlikely to succeed, if not doomed to fail. Here in my view a similar result follows upon a consideration of the present facts when considered at their highest for the claimants.
41. [41]
    Here, as a matter of fact, the claimants on any version could not be said to have been substantially maintained or supported at the time of the deceased’s death, particularly when consideration is given to the evidence directed to the issue of substantial maintenance. For many years prior to and up to the time of the deceased’s death Michael had been residing in a residence which comprised a granny flat.^[23] The flat was part of the deceased’s house. The flat and main house constituted two separate and independent living spaces.  The claimants had only ever visited the granny flat in which their father Michael resided on the limited occasions as I have earlier identified. 
42. [42]
    The claimants’ father maintained his own household within the granny flat which included the provision of stores and necessities to sustain the claimants when they were permitted access to their father.  The flat itself appears to have had sufficient capacity to permit the father and the claimants to live independently of the residence in which the deceased resided.  The evidence does not support any basis to conclude that the deceased, in any way, contributed to the stores and life necessities required by the claimants when they were exercising visitation rights with their father.  In fact the only admissible evidence addressing these matters comes from Michael. It is contrary to the evidence of the Guardian who offered only speculative supposition. It is unsurprising that Michael would now be the only source of direct evidence on this matter. His evidence accords with common sense and human experience and ought not be rejected on these matters in the absence of any good reason.  None is apparent here. Further, the financial independence of the claimants’ father, Michael, from the deceased is amplified by the periodic absences of the deceased from his part of the residence, particularly towards the end of his life; the set off arrangements provided in respect of the payment for utility and other common property expenses; and, because the deceased only had a 50 per cent interest in the property.  The balance of the property was owned by the claimant’s father, Michael and his siblings who each held a 10% interest, as between themselves and the deceased. They each held their respective interests as tenants in common inter se. Again there is no reason why Michael’s direct evidence of these matters would be displaced by the guardian’s speculative supposition on these matters.
43. [43]
    But the matter is not determined by quantitative matters of maintenance alone. Qualitative matters must also be considered; these go to the issue of support. The evidence clearly demonstrates the claimants had very limited contact with the deceased on those occasions when they were with their father; that is, when they visited the father they stayed in his flat. Similarly, Michael’s evidence about the deceased’s contact over holiday periods and the one instance when the wider family enjoyed a holiday at the deceased’s timeshare is direct evidence on that point. His evidence is corroborated by the observations of his siblings who shared that occasion with their families. The Guardian’s contrary evidence on this matter is also speculative conjecture which provides no basis to displace the evidence of Michael or any of his siblings on this matter.
44. [44]
    There were occasional visits by the claimants to the deceased on occasions when they attended for access visits with their father.  It is clear that their visits were for the purposes of the father exercising access and any contact between the claimants and the deceased was purely co-incidental and certainly not the underlying purpose for the visitation by the claimants to the deceased.  That is so even in respect of the holiday visits.
45. [45]
    In this case Michael had care of the claimants for a very limited time. On the occasion the claimants had contact with the deceased the contact was co-incidental to the support provided by Michael. There was nothing concerning the inter action between the claimants and the deceased to elevate their relationship beyond that which would be expected between a grandchild and grandparent. It fell well short of constituting substantial support.
46. [46]
    Other factors relevant to an assessment of moral obligation include that the claimants seek to enjoy an advantage not available to the other grandchildren of the deceased,^[24] and further, that any order made in their favour would involve a diminution of the distribution not only to their father but also to his four siblings.^[25] They are each children of the deceased. In the natural order of things, they would have a superior moral claim to that of the claimants in these circumstances, particularly as they are only grandchildren of the deceased.
47. [47]
    It follows I do not think the evidence at its highest supports any basis for concluding the deceased wholly or substantially maintained or supported the claimants at the time of his death.

Family provision application

48. [48]
    Assuming the claimants were to be found dependents in accordance with s 40, the provision for entitlement in accordance with s 41 is determined by reference to the principles pronounced in Singer v Berghouse^[26] where Mason CJ, Deane and McHugh JJ said, “The Succession Act requires the court to carry out a two-stage process to determine whether an order for provision should be made.”^[27]

Their Honours continued:

“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 determination of the first stage in a 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.

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, 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.” ^[28]

49. [49]
    In addressing the first of the two stages concerning the adequacy of provision for the proper maintenance, education and advancement of life for the claimants, the situation of the claimants being grandchildren of the deceased is a seminal consideration.
50. [50]
    In the decision of Chapple v Wilcox^[29], the New South Wales Court of Appeal was considering an application concerning complaint of inadequate provision made for the applicant grandchildren against their deceased grandparent.  The Court of Appeal (Basten and Barrett JJA, with whom Gleeson JA agreed) quoted with approval the judgement of Hallen As J in Bowditch v NSW Trustee & Guardian where His Honour stated:^[30]

“In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:

1. (a)
   As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

2. (b)
   Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.

3. (c)
   The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

4. (d)
   Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

5. (e)
   The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

6. (f)
   It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her parents.”

[my emphasis]

51. [51]
    These remarks carry additional significance in this case because those remarks were made in the context of a legislative scheme which expressly recognised the right of a grandchild to claim for provision. In principle it is difficult to see why these guiding principles would not apply with equal or greater force in the context of a s 41 claim.
52. [52]
    In this case the claimants’ parents each remain alive and between them remain the primary care-givers, maintainers and supporters of the claimants and address their social, economic and emotional needs, even allowing for their apparently dysfunctional relationship.  At no point did the deceased ever become in loco parentis for them or either of them.  When the claimants spent time with their father the deceased only had peripheral involvement with them.  As I have earlier noted, they lived with their father in his flat.  There was some incidental contact between the deceased and the claimants but their engagement was consistent with the engagement that is customarily be expected in a grandparent/grandchild relationship.  In this case that included visits by the claimants upon the deceased in his residence and on some rare occasions, enjoying time with the deceased during their school holidays at a timeshare owned by him; but always in the company of their father.  That is to say, the circumstances of those shared occasions did not serve to displace their father’s role as parent on the occasions the claimants were with him and in turn, the father as their primary source of maintenance and support for the claimants on those occasions they were enjoying visitation rights with  him. 
53. [53]
    In summary, there is nothing in the evidence to show that the deceased at any time ever assumed in either claimant’s life, a position more akin to that of a parent with direct responsibility for the grandchild’s support and welfare than a grandparent, or that the deceased undertook a continuing and substantial responsibility to support either or any claimant financially or emotionally. 
54. [54]
    Nor does the evidence support a conclusion of any moral obligation arising by reason of a special relationship between either or any claimant and the deceased.  The claimants only visited their father on the limited occasions permitted by court orders and even then the time was further limited by breach of the orders for access.   At best, this offered limited opportunity for the claimants to engage with the deceased up until the time of his death on anything more than a superficial basis.  Nothing in the evidence, even at its highest, suggests that the engagement was of such a quality that some moral obligation was enlivened. Likewise, there is nothing in the evidence to suggest, for instance, the deceased demonstrated additional attention to these grandchildren beyond that which he may have afforded to his other grandchildren. Nothing in the evidence demonstrates for instance the deceased saw the need to address apparent inadequacies in the parenting of the claimants by either parent, which such conduct could be seen to lend support to a claim of moral entitlement by them exceeding that which exists in the context of the common grandparent/grandchild situation.
55. [55]
    Otherwise there is no evidence of any particular generosity by the deceased to the claimants available to support a conclusion of obligation by the deceased to either or any claimant.
56. [56]
    Similarly, in my view, there is nothing in the evidence that would enliven such an expectation, particularly given there is nothing indicating a responsibility existed or was created on the part of the deceased in favour of the claimants, and no basis for any expectation of benefaction by the deceased to the claimants can be found in the evidence. There is only evidence supporting a conclusion of the relationship of grandparent to grandchild in its ordinary sense.  As Barrett JA said in Chapple v Wilcox concerning this form of relationship:

“The ordinary characteristics of family relationships are not of themselves the source of any such expectation.” ^[31]

57. [57]
    Plainly in this case, there is no evidence of direct and immediate support by the deceased of the claimants prior to and at the time of his death. 
58. [58]
    But even to put the claimants’ submission at its best (which itself is a submission founded only on supposition, not evidence) the best case that can be advanced is one of indirect maintenance or support because of the incidental benefit to the claimants by such maintenance and support that the deceased provided to his son Michael at the time that they were in his care.  But even if that were the case, despite my view that it is contrary to the evidence, that indirect maintenance and support was quite limited.  It would not satisfy the test provided in Lhose v Lewis of being “something which is still significant”^[32] by being “in the main” or “as to the greater part”.^[33]
59. [59]
    In this case the observations in Vanvalan v Neaves [2005] 65 NSWLR 268 have equal force, namely:

“The authorities are equally clear that the grandchild’s dependence, whether whole or partial^[34], on the grandparent must be direct and immediate; it is not sufficient that the grandchild’s dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator’s grandchildren who are directly dependent on that child.”^[35]

[my emphasis]

60. [60]
    Ultimately, even if the claimant satisfied of the first limb of the test^[36] in Singer v Berghouse^[37] of demonstrating they have been left without adequate provision the claim would fail in addressing the second limb. That is, demonstrating the provision, was inadequate in particular having regard to the size of the deceased’s estate and the totality of the relationship between the claimants and the deceased and the relationship between the deceased and others who have a legitimate claim upon the estate. Although I have earlier determined the application is doomed to fail for other reasons, this matter reinforces my earlier conclusion concerning the futility of the application warranting its summary dismissal.

Extension of time

61. [61]
    Section 41(8) of the Succession Act 1981 provides an application under the section must be made within 9 months after the death of the deceased  but the court may in its discretion hear and determine an application although a grant has not been made.  The claimants’ application was made out of time. In Hills v Chalk [2008] 1 Qd R 409 the court identified the factors to be considered in such an application include the prospects of the application, the claimants’ explanation for the delay in bringing their application, whether there has been any unconscionable conduct on the part of the claimants and whether any prejudice would be suffered by the beneficiaries in allowing the claimants an extension.
62. [62]
    Concerning the overall merits Keane JA observed,

“[35] It is difficult to see that there is any good reason why a claim for provision out of an estate which is clearly unlikely to succeed should attract the grant of an extension of time when the delay has been, as it is here, very long indeed… There will usually be little money, and there will often be considerable harm in granting an extension to enable the making of a claim which should have been made, if at all, years before. When that claim will probably fail, there is “no substantial case for” granting an extension of time. To grant an extension of time in such a case is likely to serve only to waste resources and to cause, or increase, personal bitterness on all sides of the litigation.”^[38]

63. [63]
    But while this is a significant factor it is not the sole determinate. As Muir JA observed at [77];

“Section 41(8) lists the factors which must be “considered as a whole”. It may be that the finding of a strong case would influence the exercise of the discretion in the applicant’s favour more than would a finding that the case was marginal at best. In any such process there is a need to recognise the limitation of the material before the court on the application for leave.”^[39]

64. [64]
    I have earlier concluded the application is unlikely to succeed.  The respondents do not content any prejudice would be suffered by granting an extension. The estate has been partly administered but sufficient funds are available to meet any potential claim.^[40]
65. [65]
    The claimants’ explanation for the delay can be summarised as lack of funds; delay in notice of the death of the deceased; and an inability to find a legal practitioner willing to take the case on.
66. [66]
    If the Guardian’s evidence concerning the claimants being instructed not to inform her of the death of the deceased could be accepted, a question of unconscionability might arise on that matter. But even accepting that evidence it is not material in terms of the application for extension of time as, if such had occurred, the delay occasioned by that conduct was in the order of about 4 weeks. That delay did not adversely impact the Guardian’s capacity to properly investigate the prospect of a claim and prosecute it on the claimants’ behalf within the statutory time.
67. [67]
    Accepting she did not know of the deceased’s death until about 9 August 2019, that was still only about a month after the event.  She says she immediately contacted a solicitor and had them write. She swears they wrote on 23 September 2019 notifying of her intention to apply for provision for the claimants. Even accepting that her solicitors were tardy in taking 6 weeks to write a relatively straight forward letter, the evidence demonstrates the estate’s solicitors responded to that letter by letter of 30 October 2019;^[41] not that she received no response as she swears. It is difficult to accept that the Guardian lacked an appreciation of how she should act to protect the claimants’ interests. On her own evidence she has been engaged in longstanding, protracted and willing litigation in the family courts in respect of both custody and property matters against Michael. It beggars belief that she lacked an adequate appreciation of the process by which a lawyer might be engaged to advise in respect of this matter or that a lawyer appointed, as it appears Armstrong Legal apparently were, would not make suitable transfer arrangements if the file was not to be further handled – for whatever reason.
68. [68]
    In my view, despite the absence of prejudice this application is unlikely to succeed. Further I don’t accept the Guardians’ explanation for delay as satisfactory. I refuse the application for an extension of time to file the application.

Orders

1. (a)
   The application for leave to hear and determine the application for provision for Eden Hope Treadwell and Rory Beau Treadwell from the estate of the late Maxwell David Treadwell pursuant to Part 4 Succession Act 1981 is refused.
2. (b)
   The Litigation Guardian for the applicants pay the respondents’ costs of and incidental to the Originating Application either as agreed or in default of agreement as assessed on the standard basis.