Groth v Buckton[2021] QDC 90

Introduction

12. [1]
    This is an application for final orders to sanction a compromise of family provision applications made under the Succession Act 1981 (Qld) in the estate of Kenneth James Buckton, deceased. By his last will dated 13 July 2018 he appointed his son Robert Buckton (first respondent) and daughter Toni Aaron (second respondent) as executors and trustees of his estate. Probate was granted on 6 May 2020.

12. [2]
    The first applicant, Terri Groth is the deceased’s daughter by his first marriage. Under the terms of the deceased’s will she was left a pecuniary legacy of $20,000.  On 28 October 2020 she filed an originating application pursuant to section 41 of the Act.

12. [3]
    She contends inadequate provision was made for her. After a directions hearing, her application led to additional applications by two siblings.

12. [4]
    The second applicant is the deceased’s stepson Christopher McCombie, the son of the deceased’s second wife who predeceased him. No provision at all was made for Mr McCombie.

12. [5]
    The third applicant, Michelle Buckton is the deceased’s daughter by his first marriage. Under the terms of the deceased’s will she was left a pecuniary legacy of $20,000. She also contends inadequate provision was made for her.

12. [6]
    Under the terms of his will, apart from the abovementioned legacies and specific bequests of jewellery, motor vehicles and farm machinery, the rest and residue of his estate was left equally to the two respondents and a step-daughter Marianne Broad. Although not a party, Ms Broad has been served, is represented by lawyers and is a consenting party to the compromise, indeed she is fully cognisant of the fact that her bequest will be reduced to accommodate the compromise.

12. [7]
    The deceased’s estate is a modest one with a net value of $691,760.86. Section 68(1)(b)(x) defines the jurisdiction of this Court by reference to the amount or value of the order, not the size of the estate. However, as it happens both would fall under the amount of $750,000.

12. [8]
    Section 41(1) of the Succession Act 1981 (Qld) provides:

3. “41 Estate of deceased person liable for maintenance

3. 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.”

12. [9]
    The principles relevant to determining family provision claims involve a two-stage approach as outlined in Singer v Berghouse (No 2) [1994] 181 CLR 201. Firstly, the Court must determine the so-called jurisdictional question: that is, whether by the terms of the will, adequate provision is not made for the proper maintenance and support of the eligible applicant.

12. [10]
    Regard may be had to a number of matters – 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 (including any distant or hostile relationship evidence) and the deceased’s relationship with others who have a legitimate claim and lastly an assessment of present and future needs. The jurisdictional issue is determined as at the date of death, in other words, the adequacy (or in the case of Mr McCombie, the inadequacy) is assessed at the time of the testators death.

12. [11]
    Secondly, if that jurisdictional question is determined in favour of the applicant, then the Court may exercise a discretion to order that such provision as the Court thinks fit be made out of the estate for one of all of the applicants.

The First applicant’s circumstances

12. [12]
    Ms Groth is in her mid 50’s. She has a very modest income from a cleaning business. Her only assets are a car and furniture with an estimated value of about $12,000, and limited savings just in excess of $10,000. Her very modest superannuation has been severely whittled away by need arising out of the COVID - 19 situation.

The Second applicant’s circumstances

12. [13]
    Mr McCombie is also in his mid 50’s. He is presently unemployed and in receipt of a Centrelink benefit. His only assets, a car and caravan are valued at about $30,000. He has savings of just over $10,000-. He shares the rent where he lives with his son. He has been diagnosed with Parkinson’s disease and so his prospects of working again are slim. An application for NDIS funding is underway.

The Third applicant’s circumstances

12. [14]
    Ms Buckton is also in her mid 50’s. She is in receipt of a Centrelink disability pension and has not worked since 2016. She has a myriad of health problems, some seriously debilitating. She lives in a Housing Commission home with her son who is her carer. Her meagre assets amount to little more than $3,500.

12. [15]
    I am satisfied that there is, in each case, a basis for making the application. No provision was made for the stepson, and only token amounts for the first and third applicants, leading to a conclusion that the deceased failed to adequately provide proper maintenance and support. I am comfortably satisfied each has a need and a moral claim. In those circumstances the requirements of the Act are made out and the jurisdiction of the Court is enlivened.

The exercise of the discretion to sanction the compromise

12. [16]
    The starting point of principle is that stated by Dalton J in Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408 at paragraph [24]:

“The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed.  The rule has its origins in the policy that a person cannot by contract exclude the jurisdiction of the Court to make a family provision order. When parties to a family provision application make an agreement as to the final orders they believe ought to be made in the proceeding, a court will have regard to that agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of its discretion…”

12. [17]
    In Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286, McMurdo P, Lyons and Boddice JJ said at paragraph [44]:

“Once the jurisdictional question had been satisfied, considerable weight must be given to the agreement, and ‘[t]he circumstances would be unusual indeed for the court to override the agreement of the parties who are of full age and where there is no evidence of undue influences at work in the reaching of the agreement.’”^[1]

12. [18]
    The parties, including Ms Broad, are all of full age and individually represented by lawyers acting in their best individual interests. The affidavit evidence establishes that each has expressly consented to the compromise. There is no evidence of any undue influences at work. That said, it seems plain enough that the compromise has its genesis in cold hard financial reality rather than being entirely the product of warm hearted sibling affection and unquestioning recognition of justifiable moral claims. A reading of the affidavits suggests that battle lines were already being drawn with the real prospect that history was being written and rewritten depending on the author’s standpoint.

12. [19]
    Litigating these matters at trial would unquestionably have entailed enormous risks and costs to the parties. It is not a matter of the Court comparing the compromise with the judgement the Court might make, but rather, it is a matter of recognising the risks and costs and recognising reasonable people could reasonably reach differing conclusions about the extent of provision to each of the applicants. Proper weight must be given to the fact that the parties have expressed a wish to settle and on terms where there is accord. Depletion of the estate by further legal costs is clearly a relevant circumstance.

12. [20]
    I am satisfied the proposed compromise falls within the bounds of a reasonable exercise of discretion. The residuary beneficiaries, who each stand to have their interests reduced have consented to the draft order.

Orders

12. [21]
    I make the following orders: -

3. 1.
   Adequate provision be made for the proper maintenance and support of the Applicants Terri Ann Groth, Christopher James McCombie and Michelle Louise Buckton.

3. 2.
   The Will of Kenneth James Buckston dated 13^th July 2018 be read and construed as if :-

3. (a)
   Clause 8(b), 8(c), 8(f) and 9 were deleted.

3. (b)
   It contained the following Clause 8(g):-

3. “8(g)  To give to CHRISTOPHER JAMES McCOMBIE the sum of Sixty Thousand Dollars ($60,000.00) provided he shall survive me and if not this gift shall form part of the rest and residue of my estate.”

3. (c)
   It contained the following Clauses 8(f) and 8(h):-

3. “8(f)  To give the rest and residue of my estate equally between such of

3. TERRI ANN GROTH, MICHELLE LOUISE BUCKTON, MARIANNE BROAD, TONI MAREE AARON and ROBERT LOUIS BUCKTON who survive me and attain the age of 25 years provided always that should any of them not survive me to take under this my will leaving children who survive me and attain the age of 25 years then such children shall take by substitution and if more than one equally the share in my estate which their parent would otherwise have taken.”

3. “8(h)  In calculating the quantum of the bequest to be received by both Toni Maree Aaron and Robert Louise Buckton the benefit they each receive from my Superannuation Fund by way of my Binding Death Nomination will be taken into account in assessing the quantum of their benefit received in accordance with Clause 8(f).”

3. 3.
   The costs of the Applicants be paid by them from their respective bequest.

3. 4.
   The costs of the Executors of administering the Deceased’s Estate and of these proceedings be paid on an indemnity basis.

12. [22]
    I will make these orders in terms of the draft order signed by me and placed with the papers.