Danckert v Holmes[2021] QDC 6

DISTRICT COURT OF QUEENSLAND

1. [1]
   These are applications made pursuant to section 41 of the Succession Act 1981 (Qld). They arise from the death of Reginald Holmes (the deceased) on 7 December 2019 at Nambour. He was 91 years old. His estate is substantial. It consists of an unencumbered property at Bli Bli valued at $1.7 million, farm machinery valued at $65,000, cash at bank exceeding $420,000 and a caravan valued at $25,000. The deceased was survived by four known children.^[1] In birth order they are Diane Macrae (the second applicant who was born in 1952^[2]), Patricia Danckert (the first applicant who was born in 1961), David Holmes (the respondent who was born in 1962) and Michael Holmes (the applicant by election who was born in 1965). I will refer to the parties by their first names for the sake of clarity.
2. [2]
   The deceased left a will which was granted probate on 17 June 2020. Under this will David was appointed executor. The deceased bequeathed $100,000 to Michael and a gold chain to his niece. The residue of the estate was to go to David. The deceased executed a statutory declaration at the same time as his final will explaining why he had decided to leave nothing to his daughters and the bulk of his estate to David. In May 2020 Patricia and Diane made a claim for provision out of the estate. In August 2020 Michael entered an appearance in the proceedings and gave notice that he too claimed provision out of the estate. In November 2020 the interested parties attended mediation and compromised the various claims. Subsequently the respondent applied for final orders and proposed the application be dealt with without an oral hearing. None of the exceptions in r 489 of the Uniform Civil Procedure Rules 1999 apply. I must therefore determine the matter without an oral hearing and, as I propose to make an order, give written reasons for my decision.^[3]

Jurisdiction

3. [3]
   The estate is worth close to $2.3 million. It is proposed that Michael be paid, in total, $480,000 from the estate, Patricia be paid $275,000 and Diane be paid $175,000. Each applicant is to bear their own costs of the proceedings, but the respondent’s costs will be paid from the estate on an indemnity basis. The total amount to be paid to the three applicants is $930,000. The jurisdiction of the District Court to hear and determine applications of this kind is limited. The monetary limit of the District Court is $750,000.^[4] The jurisdiction to hear and determine applications of the present kind is found in section 68 of the District Court of Queensland Act 1967 (Qld). Relevantly, this provides:

The District Court has jurisdiction to hear and determine … the following actions and matters –

10. (x)
    for family provision pursuant to the Succession Act 1981, sections 40 to 43, but so that any provision resulting from an order made by the court shall not exceed in amount or value the monetary limit.^[5]

4. [4]
   If the section is read as applying to the total value of any orders made for provision it would in this case exceed the jurisdictional limit. If, however, the section is read to refer to the amount provided to each applicant individually no jurisdictional issue arises. In Remote Data Systems P/L & Ors v Hoover & Ors [2000] QCA 116, the Court of Appeal considered the jurisdictional limit in section 118 of the District Court of Queensland Act. Pursuant to that provision an appeal lay as of right in the case of a claim or final judgment that equalled or exceed the money limit of the Magistrates Court. Otherwise it was necessary to obtain leave to appeal. Remote Data Systems concerned five separate plaintiffs (respondents to the appeal) who had recovered varying amounts. In the case of two plaintiffs the judgments each secured exceed the money limit of the Magistrates Court. In respect of the other three plaintiffs their judgments were for less than money limit. The Court adopted the approach that the proceedings encompassed five separate claims and five separate judgments. It was necessary to separately identify each judgment and apply section 118 to that judgment to decide if an appeal lay as of right or by leave. It is not appropriate to add the together the amounts to ascertain the total.^[6]
5. [5]
   There is no reason the same approach should not apply to the present matter. While there is a single proceeding, it is a proceeding for the determination of three separate claims. The application as filed does not, as it should, expressly confine the orders sought to those within the money limit of the court; no amount is identified at all.^[7] But this is an irregularity that is capable of correction and should be seen in the context that each applicant deposes they seek amount less than the money limit of the District Court. Notwithstanding this irregularity, the parties all agree that orders should made for provision from the estate such that each applicant receives an amount which is within the jurisdiction of the District Court. In the circumstances I am satisfied the District Court has the jurisdiction to make the orders sought and any deficiency in the application is no bar.

Evidence

6. [6]
   Diane deposes that her biological parents separated when she was two years old. After some years in the care of her grandparents, Diane came to live with her mother and the deceased in Sydney when she was about five years old.  She was known from that point by the deceased’s surname, Holmes. Diane married in 1971 and describes regular contact with her mother and the deceased, including after moving to the Sunshine Coast. The deceased came to move to the Sunshine Coast as well. In the 1980s Diane established contact with her biological father. She deposes that in late 1994 the deceased and Diane’s mother expressed disappointment that Diane had established a relationship with her biological father. Soon after they ceased contact. Diane did not see her mother or the deceased again.
7. [7]
   Diane says she has high blood pressure and cholesterol issues as well as anxiety. She is 68 years old and married. With her husband she owns a house at Peregian Beach valued at $750,000. They owe about $127,000. They also share a managed investment fund worth $230,000. She appears to be healthy and in a good financial position.
8. [8]
   Patricia describes a series of events involving her marriage, separation and subsequent reconciliation with her husband as resulting in long period of estrangement from her parents. She was not told when her mother died. Patricia acknowledged that at times before the estrangement she and her husband lived with her parents but said they contributed to the running of the household. In 2019 she reconciled with the deceased, visiting him at the Sunshine Coast. There is clearly animus between Patricia and David. Patricia and her husband face health issues common to persons in their late 60s. The financial position of Patricia and her husband is modest. The do not own a home. Their largest assets are superannuation worth $435,000 and a boat valued at $80,000. While they have only a modest income, they have practically no liabilities.
9. [9]
   Michael is the youngest of the sibship. He was raised by his parents in Sydney and worked for the deceased at various times as a young man and adult. After an argument in 2005 or 2006 David and the deceased lost contact for about ten years. They reconciled in 2015 around the time of David’s mother’s passing.  David deposes that he did some unpaid maintenance work at the Bli Bli property around this time. When the health of the deceased deteriorated it was David who took the role of carer, but Michael’s wife assisted with physiotherapy and occupational therapy. Michael has limited assets, the most substantial of which is a boat valued at $14,000. He does not own a house. He works as a roofer with a taxable income averaging around $60,000 per year. His wife has a similar income. Their superannuation savings are not substantial.
10. [10]
    David, the executor and main beneficiary under the will, is married. He appears to have been the child closest to his parents. He worked in the marine industry as did the deceased. At times David lived with his parents and helped them financially. David addresses the affidavit of each of three applicants. There is obvious dispute between the parties about historical events and their significance. In light of the position of the parties it is unnecessary for me to resolve these conflicts in the evidence. David and his wife have about $150,000 in the bank, the proceeds of the sale of a block of land. They have about $90,000 in superannuation and other assets worth about $24,000. Their combined fortnightly income of $1,760 is just sufficient to meet their needs.

Consideration

11. [11]
    The present application is intended to give effect to the agreement of the parties reached in November 2020. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed. First, the court must determine a jurisdictional question of whether an applicant has been left without adequate provision for his or her proper maintenance and support. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.^[8] In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.^[9]
12. [12]
    The question of whether an applicant has been left without adequate provision is to be answered having regard to the their financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate.^[10] If an applicant has a legitimate claim on the estate, the second question is what amount they should properly receive. This requires consideration of what provision a ‘wise and just testator’ would have made.
13. [13]
    On the material presently before the court, it may be questioned whether Diane’s financial position is such that she has been left without adequate provision. Patricia and Michael are in a different position and it is easier to conclude that they have been left without adequate provision. The evidence of the relationship each applicant enjoyed with the deceased is, to an extent, in dispute. The deceased, for whatever reason, had sufficiently strong views to declare why he did not wish to leave any of his estate to Diane and Patricia. In these circumstances it is not possible for me to come to a concluded view about the real merits of the three applications. In my view, the most important consideration is not the financial position of the applicants and their relationship with the deceased but the agreement reached by the parties and the effect further litigation would have upon the estate. While the estate is not modest, a full hearing to decide the disputed issues would be undoubtedly expensive. It would deplete the estate and amount available for distribution to whomever were the successful parties. Where the parties have agreed to a distribution it is appropriate that this court gives effect to their agreement.
14. [14]
    The matter is also not an inappropriate one for disposition on the papers. The proposal for a decision without oral hearing should be accepted. Again, an important consideration is that this will avoid the expenditure of additional legal costs from the estate.
15. [15]
    For these reasons I will make an order in the terms of the draft that has been provided.