Speechley v Willemyns[2023] QDC 154

Introduction

1. [1]
   This matter relates to applications brought by two of the biological children of the deceased, John William Speechley.  It is necessary to outline some of the procedural history of these applications at the outset.
2. [2]
   The first applicant filed an application on 11 October 2019 in the Maroochydore registry of the District Court and the second applicant filed an application on 10 October 2019 in the Brisbane registry of the District Court. Notwithstanding some variation in phraseology, each of the applications seek the same orders from this Court, that:

   1. pursuant to section 41(1) of the Succession Act 1981 (Qld), adequate provision be made for the proper maintenance and support of the applicant out of the Estate of John William Speechley, deceased; and
   2. costs of and incidental to the application be assessed on an indemnity basis and paid out of the Estate of the deceased.
3. [3]
   The sole respondent to these proceedings, another child of the deceased, is the executor of the deceased’s estate (“Estate”) , who has opposed the applications.
4. [4]
   A mediator’s certificate filed 9 September 2020 indicates that on 1 September 2020 the first and second applicant and the respondent attended a mediation in respect of the applications, which did not result in the resolution of the dispute as ultimately litigated in this Court.
5. [5]
   A further application filed 5 February 2021 was brought by the second applicant seeking to have her originating application transferred to the Maroochydore registry of the District Court and consolidated with the first applicant’s application.  Orders to that effect were made on 25 February 2021.
6. [6]
   The first applicant, on 9 June 2021, filed a notice of discontinuance of the whole of his claim against the respondent.  It is said that the first applicant “settled his claim upon the Estate regarding his family provision application”,^[1] and there is evidence that an amount of $25,800.00 has been paid from the Estate to the first applicant after allowing for his share of the mediation costs.^[2]

The Will

7. [7]
   The deceased died at 87 years of age on 25 January 2019 and is survived by his three remaining adult children:

   1. Anthony Jonathon Speechley (formerly the first applicant), aged 50 years at the time of the deceased’s death;
   2. Jennifer Anne Speechley (the second applicant) aged 65 years at the time of the deceased’s death; and
   3. Amanda Jo-Anne Willemyns (the respondent) aged 56 years at the time of the deceased’s death.

The deceased’s wife passed away in 2001. His son, Peter Speechley, passed away in 2012, and his daughter, Theresa Humphries, passed away in 2007.^[3]

8. [8]
   The deceased’s last Will and Testament dated 5 July 2016 (“Will”) appoints the respondent as the Executor and Trustee of the Estate.^[4] All real and personal estate of the deceased was provided to the Executor and Trustee upon trust in order to:

“pay all and any ‘debts funeral and administration expenses, all legacies (if any) given by this Will or any Codicil, all duties payable on any part of my estate unless specifically charged on a gift, and all payments directed to be made out of residue, and to hold the balance then remaining (“my residuary estate”) upon the following trusts, namely:-

If my daughter AMANDA JO-ANNE WILLEMYNS shall survive me for thirty days then UPON TRUST for her absolutely.”^[5]

The Will otherwise made provision for the residuary estate to be held upon trust for the deceased’s grandchildren on certain conditions in circumstances where the respondent executor did not survive the deceased, or otherwise failed to attain a vested interest in the residuary estate.^[6] No other legacy was provided by the Will and no other person was identified as having an interest under the Will or any potential claim pursuant to s 41 of the Succession Act 1981. 

9. [9]
   In a statutory declaration dated 16 July 2016, the deceased set out reasons as to why no provision had been made in his Will for either of the first or second applicant.^[7]  The greater part of that declaration is in explanation as to why no provision was made for the first applicant, including in respect of the extent of past financial support from the deceased.  In respect of the second applicant, it was stated:

“3. In making my Will I have given due consideration to any claim which may be made upon my bounty by my daughter JENNIFER ANNE SPEECHLEY (“Jennifer”) and in making no provision for her, I have been influenced by the following reasons:-

1. Jennifer is an adult child.
2. I am not certain that Jennifer is still going by the surname “Speechley”.
3. Jennifer and I do not confide in one another.
4. I am unaware of Jennifer’s financial situation, however, she sent me letters care of my predeceased daughter’s address requesting I send her $350,000.00 to purchase her a house. I did not send her money as I do not even know Jennifer anymore.
5. I have not spoken to Jennifer for over twenty (20) years.
6. Jennifer has not been dependant on me since she attained the age of eighteen (18) years and moved out of home.
7. There is no father/daughter relationship between myself and Jennifer.”

That statutory declaration was admitted pursuant to s 92 of the Evidence Act 1977 and accordingly as to proof of the truth of the contents, as far as there is any statement tending to establish any fact as to which “direct oral evidence of [that] fact would be admissible”.^[8] Those contents will need to be considered along with other relevant evidence, with an assessment as to the appropriate weight to be given to any of the statements made.^[9]

The liability of the Estate for maintenance and support

10. [10]
    Section 41 of the Succession Act 1981 relevantly provides:

1. 41
   Estate of deceased person liable for maintenance
2. (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.
3. (1A)
   However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.
4. (2)
   The court may—
5. (a)
   attach such conditions to the order as it thinks fit; or
6. (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
7. (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.
8. (3)
   The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.”

11. [11]
    This Court has jurisdiction to so order, pursuant to s 68(1)(b)(x) of the District Court Act 1967 (Qld), providing that such provision as may be ordered does not exceed the monetary limit of $750,000.00 on civil proceedings before this Court.^[10]
12. [12]
    A ‘two-stage process’ is involved for the determination of an application for family provision.^[11] In Singer v Berghouse, following observations doubting the usefulness of references to touchstones in terms of “moral duty” or “moral obligation” of a just and wise testator, as potentially “amounting to a gloss on the statutory language”, the following was stated as to the respective stages:

“The first question is, was the provision (if any) made for the applicant “inadequate for [his or her] proper maintenance, education and advancement in life”? The difference between “adequate” and “proper” and the interrelationship which exists between “adequate provision” and “proper maintenance” etc. were explained in Bosch v Perpetual Trustee Co. Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.^[12]

13. [13]
    In Hughes v National Trustees, Executors and Agency Company of Australasia Ltd,^[13] the High Court of Australia confirmed that “the onus lies with the applicant to establish that adequate provision for her or his proper maintenance, education, or advancement was not made by the will of the deceased person”. Issues arising under s 41(2)(c) may be seen as particularly relating to the second stage,^[14] but it is also recognised that issues such as estrangement or absence of a close relationship between a testator and applicant, may be a limiting factor in respect of an appropriate award.^[15] As was noted in Hartley v Hartley:^[16]

“The observations by Mullins J (as her Honour then was) in Pizzino v Pizzino & Anor [2010] QSC 35 at [49]-[55] are a sufficient summary for present purposes of the approach to be taken in relation to such applications:

“There was no issue between the parties about the application of the two stage process that s 41(1) of the Act requires the court to undertake, as explained in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201, 208-209 (Singer), as approved by Gleeson CJ and Gummow and Hayne JJ in Vigolo v Bostin (2005) 221 CLR 191 at [37], [74] and [82]-[83] (Vigolo).

The first stage of the process or the jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance and support, as at the date of the deceased’s death: Singer at 209-211. The factors that will be considered on the jurisdictional question include the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims on her bounty: Singer at 210. The nature of the inquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk [2008] QCA 159 at [39]-[41] (per Keane JA), [128]-[139] (per Muir JA) and [212] (per Fraser JA).

…

If it is necessary to proceed to the second stage of the process, it involves similar considerations to the jurisdictional question (Singer at 210) and s 41(1A) of the Act is applicable. In addition to the matters specified in s 41(1A) of the Act, the respondents and the applicant’s sons also rely on the application of s 41(2)(c) of the Act. In determining the second stage, the court exercises its discretion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order: White v Barron (1980) 144 CLR 431, 444. The jurisdiction under provisions such as s 41(1) of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146.”

14. [14]
    The issue as to estrangement, which particularly arises here, was extensively discussed in Kemperman v Antonenas:^[17]

“Estrangement

[105] I set out the principles relevant to family provision claims in the case of estrangement in Underwood v Gaudron [2014] NSWSC 1055 at [230]-[233]. An appeal from that decision was dismissed by the Court of Appeal in Underwood v Gaudron (2015) 324 ALR 641; [2015] NSWCA 269.

[106] As I observed in Rogers v Rogers [2018] NSWSC 1982 at [150], the summary I provided in Underwood v Gaudron has been referred to, without disapproval, and in some cases with approval, in a number of subsequent authorities.

[107] I next repeat part of what I wrote in Underwood v Gaudron, at [231]-[233]:

“Because, in this case, there is a factor raised by the deceased (and by Mary and Kathryn) that bears on the quality of the relationship, being that Helen was estranged from the deceased for about 20 years before death, it is necessary to set out some other general principles which should be remembered:

1. The word ‘estrangement’ does not, in fact, describe the conduct of either party. It is merely the condition that results from the attitudes, or conduct, of one, or both, of the parties to the relationship. Whether the claim of the applicant on the deceased is totally extinguished, or merely reduced, and the extent of any reduction, depends on all the circumstances of the case: Gwenythe Muriel Lathwell, as Executrix of the Estate of Gilbert Thorley Lathwell (Deceased) v Lathwell [2008] WASCA 256, at [33].
2. The nature of the estrangement and the underlying reason for it is relevant to an application under the Act: Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, at [88] - [94]; Foley v Ellis. In Palmer v Dolman, Ipp JA, after a review of the cases, observed, at [110], that:

‘ … the mere fact of estrangement between parent and child should not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.

3. There is no rule that, irrespective of a Plaintiff's need, the size of the estate, and the existence or absence of other claims on the estate, the Plaintiff is not entitled to ‘ample’ provision if he, or she, has been estranged from the deceased. The very general directions in the Act require close attention to the facts of individual cases.
4. The court should accept that the deceased, in certain circumstances, is entitled to make no provision for a child, particularly in the case of one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’: Ford v Simes [2009] NSWCA 351, at [71], per Bergin CJ in Eq, with whom Tobias JA and Handley AJA agreed.
5. As was recognised by the New South Wales Court of Appeal in Hunter v Hunter (1987) 8 NSWLR 573, at 574 - 575, per Kirby P (with whom Hope and Priestley JJA agreed):

‘If cases of this kind were determined by the yardstick of prudent and intelligent conduct on the part of family members, the appeal would have to be dismissed. If they were determined by the criterion of the admiration, affection and love of the testator for members of his family, it would also have to be dismissed. Such are not the criteria of the Act. The statute represents a limited disturbance of the right of testamentary disposition. It establishes a privilege for a small class of the immediate family of a testator (the spouse or children) to seek the exercise of a discretionary judgment by the Court for provision to be made out of the estate different from that provided by the testator's will.

6. Even if the applicant bears no responsibility for the estrangement, its occurrence is nevertheless relevant to the exercise of the court's discretion under s 59(2) of the Act to make a family provision order where the jurisdictional requirements of s 59(1) are met. That the applicant had no relationship with the deceased for some years, and that there did not, therefore, exist between them the love, companionship and support present in normal parent/child relationships, during those years, is a relevant consideration: Keep v Bourke [2012] NSWCA 64, per Macfarlan JA, at [3].
7. The poor state of the relationship between the applicant and the deceased, illustrated by the absence of contact for many years, if it does not terminate the obligation of the deceased to provide for the applicant, may operate to restrain amplitude in the provision to be made: Keep v Bourke, per Barrett JA, at [50].
8. Where the applicant has been estranged from the deceased, the application of the Act requires that the estrangement be appraised and its causes considered. In addition, s 60(2)(m) permits the court to consider the character and conduct of the applicant at the second stage of the process. Care should be taken not to oversimplify the complex and nuanced relationships within a family by yielding to the temptation to condemn categorically the behaviour of one party or the other. Events viewed years later through the cold prism of a courtroom may give a different impression than when the events are set in the context of raw emotions experienced at the time: Foley v Ellis, at [102].

In Andrew v Andrew, Basten JA endorsed what I had said about estrangement, much of which is set out above, as follows:

‘As explained by the primary judge, the term “estrangement”, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the “natural” process of separation of child from parent, which often peaks in adolescence, but may well continue into adult life, sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator's conscience.

“His Honour added:

‘The cases referred to above support the proposition that in the case of estrangement between an applicant and a testator, attention may need to be paid, so far as the evidence permits, to the apparent causes of the estrangement. Thus, if the immediate cause is overt hostility on one side, it may be necessary to apportion blame (or at least responsibility) for that situation.

…

Without rejecting the analysis as inappropriate, there are at least limits on how far a court should go in seeking justification for the absence of “love and support” from a child for his or her parent. It goes without saying that some children feel greater love and affection for their parents than do others and that some children provide higher levels of support for their parents in their aging than do others. These are all considerations relevant to an assessment of the adequacy of the provision made by the testator for the proper maintenance, education and advancement of a child. However, whether in a particular case it would warrant the exclusion, or virtual exclusion, of the child from benefit under the mother's will, is another question. The appellant did not seek, in her evidence, to blame her mother for the breakdown in their relationship. Although the causes thus remained obscure, reticence, which may limit damage to her relationships with her siblings, is not to be discouraged. Although estrangement was no doubt painful to the mother, such conduct was surely less reprehensible than open hostility.

…

Although the mother's reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter's share in the estate from that which might otherwise have been expected to a largely nominal sum. In these circumstances, the appeal should be allowed, and provision made for the appellant.

[108] In Rogers v Rogers at [152]-[154], I added:

“Acrimony or estrangement does not necessarily destroy the bonds of parental ties: Diver v Neal [2009] NSWCA 54 at [27].

…

As Allsop P (as his Honour then was) wrote in Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308, at [7]:

‘Inevitably in such a case, the rhetorical question is asked: Why should a mother leave anything to an adult daughter who has drifted away over a long period and become estranged? The word “should” in the question embodies various suppressed [premises] based on parental, filial and moral duties. If no articulation can be made as to why any parental duty recognised by society has been breached, why should the court intercede and interfere with the expressed testamentary wish?

[109] I also note the concise observations of Doyle J (Vanstone and Parker JJ agreeing) in Tiburzi v Butler (2017) 17 ASTLR 1; [2017] SASCFC 89 at [106]:

“ … how a period of estrangement affects a claim will depend upon the circumstances of the particular case. Depending upon the nature and extent of the estrangement, and in some cases the reasons for it, it may in some cases be of little moment, or operate merely to restrain the level of provision to be made. In other cases it may go as far as defeating the moral claim of a plaintiff, or terminating the moral duty of the testator towards the plaintiff.”

[110]  Ultimately, although the relationship of parent and child is important and carries with it a moral obligation reflected in the Act, nevertheless, it is an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.”

Standing

15. [15]
    The respondent contends that the second applicant (who will, hereafter, be referred to simply as the applicant) had no standing to make an application for provision under her father’s Will, in the circumstances where she was an undischarged bankrupt at the time of making the application.^[18] Further, the respondent contends that the applicant has an ongoing statutory obligation to repay creditors and that creditors should have no entitlement to the funds of the Estate.^[19]
16. [16]
    The applicant’s bankruptcy, at the time of filing her application, is not in dispute. The applicant entered bankruptcy on 1 August 2018 and was discharged on 2 August 2021, with the Official Trustee in Bankruptcy becoming the trustee of the bankrupt estate.^[20]  However, the applicant’s contention is that this position and the bankruptcy does not affect her entitlement, particularly to now have the application determined in her favour because she was discharged from bankruptcy as from 2 August 2021.^[21]
17. [17]
    In correspondence dated 16 April 2019, the Official Trustee noted an annulment amount of $35,667.86 (including interest and charges and debts totalling $19,298).^[22] The respondent points particularly to correspondence sent to the applicant, dated 17 December 2021, from a person described as “Senior Case Manager/Insolvency and Trustee Services/Australian Financial Security Authority”, which notes an estimated annulment figure of $16,130.75 (including charges and outstanding debts in the sum of $6,668.00), upon expression of views that:

    1. The applicant’s “actual or potential interest in the deceased estate vested, pursuant to s 58(1)(b) and s 116(1)(a) of the Bankruptcy Act 1966, in the Official Trustee in Bankruptcy, as “after-acquired property”, upon the death of her father on 25 January 2019 and therefore during the period of bankruptcy;
    2. Subject to any extension notice and pursuant to s 129AA, that interest remains vested in the Official Trustee for 6 years from the date of discharge; and
    3. In the event of the applicant’s success in her application for provision out of the estate she would “first need to annul [her] bankruptcy pursuant to section 135A of the Act, before [she] can access any distribution made out of the estate in [her] favour”.
18. [18]
    By s 58(6), the reference to “after-acquired property”, in s 58(1)(b) of the Bankruptcy Act, is defined to mean:

“property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt”.

By s 5, “property” is defined to mean:

“real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property”.

Further and subject to any other provision of the Bankruptcy Act, s 116(1)(a) operates to define “property that is divisible amongst the creditors of the bankrupt”, as:

“all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge”.

Accordingly, and because there was no acquirement or devolvement of any award of provision from the Estate upon the applicant prior to 2 August 2021, the implicit assumption in the assertion as to the vesting of after-acquired property in the applicant, upon the death of her father and in the Official Trustee pursuant to s 58(3), must necessarily be as to her acquiring a chose in action in the nature of a cause of action for such provision, which has and remains vested in the Trustee.^[23]

19. [19]
    The respondent seeks to support such a conclusion by particular reference to the decision of a Master of the Supreme Court of South Australia, in Pergoletto v Chandler & Ors.^[24] In that decision reference was made to the decision in Collicoat & Ors v McMillan & Anor,^[25] in description of a generally accepted approach to two general effects. First, that the right to make an application for family provision is a personal one and not one that passes to the Official Trustee. And secondly, that having regard to that personal nature of the claim, an order might not be made if it would not be to the benefit of the claimant to do so, for instance, if the benefit would inevitably go to creditors of a claimant.^[26]
20. [20]
    The immediate focus in Pergoletto was upon the first approach and an observation that it was to be traced back to the case of Coffey v Bennett,^[27] with further observation that this decision “was made at a time when the Bankruptcy Act 1924 was applicable” and “turned on the proposition that the common law of bankruptcy excluded certain property from vesting in the trustee” and that one such type of property was a claim of the present type;^[28] with further observation that the provisions of the Bankruptcy Act 1966 “are perhaps more prescriptive” and do not exclude such a chose in action, with particular reference to the provisions in s 116(2)(g).^[29]
21. [21]
    Apart from noting that, as pressed for the applicant,^[30] these observations were obiter dictum, in circumstances where the determination of that case did not depend on any such conclusion and which remained undecided.^[31] In any event, the applicant there, who was refused an extension of time to bring his application, was and would remain for many years an undischarged bankrupt.
22. [22]
    Those observations are not consistent with other decisions, to which the respondent refers, being authorities decided in respect of the application of the Bankruptcy Act 1966, albeit with reference to the decision in Coffee v Bennett.  In McLeod v Johns,^[32] it was stated:

“It is accepted that the right to make an application under the Testator’s Family Maintenance and Guardianship of Infants Act (the TFM Act) does not constitute any species of property, it being a merely personal right which does not vest in the official receiver of a bankrupt’s estate: Coffee v Bennett [1961] VR 264.”

In Muir v Angeles^[33] the position was summarised as follows:

“[57] Section 58(3) of the Bankruptcy Act vests the property of the bankrupt upon the trustee in bankruptcy forthwith upon the debtor becoming a bankrupt. There is long‐standing authority that holds that a bankrupt’s claim for family provision is not a chose in action that vests in a trustee in bankruptcy by the operation of s 58 of the Bankruptcy Act. A family provision claim is a personal, or bare, right and, therefore, falls outside the ambit of s 58: see, for example, Coffey v Bennett [1961] VR 264 at 265 –267 (Sholl J); McLeod v Johns [1981] 1 NSWLR 347 at 349 (Kearney J); Collicoat v McMillan [1999] 3 VR 803 at 822 [51] (Ormiston J).

[58]  However if, whilst the applicant for a family provision order remains an undischarged bankrupt, he, or she, receives a lump sum, or other property through such proceedings, by way of a family provision order, such lump sum, or other property, will be available to the trustee for distribution to creditors.”

23. [23]
    The point was succinctly made in Thompson v Cyati:^[34]

“[6] The right to claim provision is not a chose in action or other species of property that vests in the trustee in bankruptcy. Rather, it is a personal or bare right of action that falls outside the scope of s 58 of the Bankruptcy Act.”

24. [24]
    The essence of this reasoning lies in the understanding that upon the death of her father, no enforceable right of action accrued to the applicant, as opposed to an opportunity to apply for what is ultimately an exercise of discretion pursuant to s 41 of the Succession Act 1981.^[35] It would be a different proposition, as noted in Muir v Angeles and was the effective situation in Pergoletto, if the applicant remained an undischarged bankrupt when any such order was made and her entitlement to such provision then vested in or devolved to her.^[36]
25. [25]
    As may be observed, in the first instance, as a matter noted in Pergoletto, a claim of the type made is not within the meaning of the exclusion in s 116(2)(g) of the Bankruptcy Act in respect of property divisible amongst the creditors.  However, s 116(2)(g) applies in respect of “any right of the bankrupt to recover damages or compensation”.  Accordingly, this sub-section is directed at what might be regarded as a right which is property in the sense of being a chose in action.  The essential distinction, as has been noted, is that the applicant’s ability to make application here is not to be so regarded and therefore is not property which has vested in the Trustee as part of the bankrupt estate. 
26. [26]
    Accordingly, it is to be seen that there is neither support to be found in authority nor the legislation for the implicit assumption underpinning the views expressed in the correspondence dated 17 December 2021. However, the present purpose is not to determine any dispute between the Trustee and the applicant. Rather, it is to determine whether there is any impediment to the determination of this application in the applicant’s favour.  There is no assertion in the evidenced correspondence with representatives of the Trustee of any impediment to the pursuit of this application by the applicant. More importantly, because there has not been any vesting of property in the Trustee in bankruptcy, as far as the applicant’s right to make this application is concerned, none of the difficulties addressed in Stone v ACE-IRM Insurance Broking Pty Ltd^[37] arise.
27. [27]
    Further, there is no such impediment identified at law. This includes the provisions of s 60 of the Bankruptcy Act 1966 in respect of the staying of actions commenced by a person who subsequently becomes a bankrupt, as follows:

1. “(2)
   An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

3. If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

4. Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

1. any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

2. the death of his or her spouse or de facto partner or of a member of his or her family.

Note: See also subsection 5(6).”

By s 5(6)(b), the exception in s 60(4)(b) might appear to apply to an action (defined in s 60(5) to mean “any civil proceeding, whether at law or in equity”) such as the present, being in respect of the death of the applicant’s father. However and as examined in detail in Thompson v Cyati,^[38] there is authority and reasoning to different effect. As further explained in that decision, there is some conflicting authority as to whether an application of the present kind is within the definition of “action” for the application of s 60,^[39] but even if s 60(2) or (3) is engaged this is only as against the Trustee and does not prevent the subsequent pursuit of an action by a claimant, even if deemed to be abandoned by the Trustee, and particularly after discharge from bankruptcy.^[40]

28. [28]
    In any event, those provisions can have no application here because the applicant was already a bankrupt when she made this application. Neither are such circumstances expressly caught by rule 72 of the Uniform Civil Procedure Rules 1999. Nor has there been any order made staying, or in any other way preventing, the applicant’s pursuit of this application, nor any contest in respect of the applicant’s assertion as to absence of any delay requiring any leave to proceed.^[41]
29. [29]
    Prima facie, pursuant to s 41(8) of the Succession Act, the applicant was required to make her application within nine months of the death of her father and it is to be noted that an effect of s 41(6) is that upon the earlier made application of her brother, that limitation requirement was met and the prospect of the Court being concerned to also determine any exercise of discretion as to provision for the applicant, so that the distribution of the deceased’s Estate could be finally determined.
30. [30]
    This reasoning also leads to the conclusion that the respondent’s reliance upon the observations made in Beames v State of Queensland,^[42] are of no relevant assistance. They were not concerned with an application of the present kind and the applicant there remained an undischarged bankrupt in circumstances where s 60(2) of the Bankruptcy Act 1966 was applicable.
31. [31]
    In conclusion, there is no identification of any impediment to the commencement, nor the pursuit, by the applicant of this application. As has been noted, there is also an apparent lack of support for the claim of the Trustee’s interest in any award which might be made in the applicant’s favour. It suffices to simply note that the stated extent of any such claimed interest is in recovery of the amount of $16,130.75 and the authority relied upon by the respondent,^[43] is an instance of a determination made during the currency of the applicant’s bankruptcy and the relevant consideration in refusal of the application was that no order was to be made where there would be no benefit to the applicant because the entirety of any award would pass to his creditors. Accordingly, and particularly to the extent to which the applicant might be benefitted by any award exceeding the amount of $16,130.75, there would be no basis for refusal to grant it.
32. [32]
    Therefore, it is necessary to consider and determine this application.

The Application

33. [33]
    It is to be noted, subject to dealing with some particular matters put in dispute, that the applicant’s circumstances are presented as that she:

    1. left the family home at the age of 17 to work as a nurse at the Royal Brisbane Hospital and live in the nursing quarters. From 1967 to 2010, the applicant worked in various roles in the healthcare industry, mainly in her capacity as a nurse. From 1996 to 2006, the applicant owned a business named Salon Estique in her capacity as a beauty therapist;^[44]
    2. moved from Darwin to Brisbane in about 1974 to be closer to her parents and to assist her parents following a workplace accident that affected the deceased’s ability to work and drive;
    3. moved into her parents’ family home in about 1977 to care for her younger siblings, aged 8 and 14 years at the time, while her parents travelled for 3 months. The applicant’s parents provided money for fuel and food for the children while they travelled. The deceased is said to have promised the applicant, by way of some compensation for her time, provision in his Will, by saying words to the effect “I will repay you one day and make sure you are remembered in my will”;^[45]
    4. had failed relationships due to domestic violence. One of those relationships involved a marriage, the wedding for which was paid for by the deceased in 1974;^[46]
    5. had complicated relationships with various members of her family, including her mother;
    6. had a complicated relationship with her father, having been estranged from him for significant periods of time over the course of his life. The applicant attested to multiple attempts to reconcile her relationship with him, with the deceased not sharing her desire to reconnect;^[47]
    7. expended all her savings to assist her son following a house fire in 2006. She deposes to providing clothes, a computer, a watch, a shaver, a washing machine, furniture, holidays, and accommodation to her son following the house fire. She describes having to care for her son which caused her business to close down, and she went bankrupt in 2008;^[48]
    8. has suffered from medical conditions over the course of her life including irritable bowel syndrome, myocardial infarction (heart attack), lumbar disc prolapse, bleeding disorder, asthma, basal cell carcinoma requiring excision, supraspinatus tendinosis, post-traumatic stress disorder, angina pectoris, left ovarian cancer, left breast carcinoma requiring dissection and radiotherapy, hiatus hernia, osteoarthritis, and breast cancer requiring chemotherapy and mastectomy,^[49] with such medical conditions having affected her ability to earn an income;^[50]
    9. is now a divorced, single woman with an adult son;
    10. is now a discharged bankrupt, has minimal assets, limited savings, no superannuation, and owns no real property;^[51] 
    11. is currently unemployed/retired and receives a disability support pension from Centrelink;^[52]
    12. intends to use the provision to move out of shared accommodation, live alone in rented accommodation, assist with day-to-day living expenses, assist her son, and obtain health services including podiatry, physiotherapy, and remedial massage.^[53]
34. [34]
    For the respondent, it is that she:

    1. has three degrees in psychology, being a Bachelor of Arts (Honours), a Master of Arts, and a PhD;
    2. worked casually and part-time in various roles throughout her time as a student at university. She later worked in various roles in her capacity as a psychologist;^[54]
    3. married in 1982, with her parents attending the wedding and paying for the reception.^[55] This marriage ultimately failed, resulting in divorce;
    4. purchased a home in Shelley Beach in 1984 which was later sold so that the respondent could move to Brisbane to seek out further study. It is noted that the respondent’s parents loaned the respondent $7,000.00 to purchase the home in Shelley Beach, which was repaid upon it being sold in 1987.^[56] The respondent did not and has not purchased another home and has simply rented accommodation;^[57]
    5. had a son in 1991;
    6. moved to Townsville in 1998 which is where her parents and sister, Theresa, were residing at that time;^[58]
    7. has suffered from medical conditions over the course of her life including severe endometriosis and systemic lupus erythematosus;^[59]
    8. now has a partner who suffers from prostate cancer resulting in various hospital admissions and emergency surgery;^[60]
    9. does not own real property and has no significant assets, and nor does her partner.^[61]
35. [35]
    This application was strenuously and steadfastly opposed by the respondent. Indeed, a basis of criticism of the applicant’s evidence is her statement that “based on the history of my sister, I practically do not believe anything that comes out of her mouth”.^[62] There is an obviously self-serving aspect to this assertion and as far as it is reflective of the many aspects of the evidence of the applicant which were put in issue, it will only be necessary to deal with those which are important to the issues to be determined and the credit of the applicant more generally.
36. [36]
    Otherwise and in respect of some criticisms raised in respect of the respondent’s evidence,^[63] it is unnecessary to dwell generally upon these or the respondent’s rejoinders,^[64] except to note that:

    1. the respondent is correct to contend that the applicant bears the onus of satisfying the court of her entitlement to an appropriate award of provision from the Estate;
    2. there is an indicia, including in respect of the respondent’s obtaining and reliance upon an accountant’s assessment of the applicant’s disclosed financial records and the respondent’s stated view of her sister, of seeking to resist her application at every turn and otherwise taking any point thought to be available; and
    3. a further tendency of seeking to present her own position as favourably as possible, as particularly demonstrated by the lack of clear articulation in her affidavits of the benefit that she and her husband had enjoyed of residence in the deceased’s unit since 1 August 2019.^[65]

It will otherwise be necessary to deal with more particular conflicts of evidence and credibility issues as they arise in respect of significant aspects of the evidence.

37. [37]
    The ultimate submission on behalf of the applicant is for an award in an amount in a range of $100,000 - $150,000, being in the order of approximately 21% - 31% of the gross value of the estate as effectively represented by the value to be ascribed to the unit, of $480,000.^[66]
38. [38]
    The respondent’s submission is that the application ought to be dismissed,^[67] with the more particular assertions as to the inappropriateness of the applicant’s contention, lying in:

“ … the small estate; her insufficient evidence of her financial and personal situation despite bearing the onus of proof; the totality of her relationship with the Deceased which is more of a lack of a relationship despite her good start to life with parents that provided her with love and care; reports of her physical and emotional abuse of her mother, which impacted her father; her neglect and disregard of her father over decades and her lack of contact with him for around 25 years; her failure to take action to reconcile with the deceased despite offer of Mr Commins to help make this happen; and her apparent lack of a sustained and significant input into her father’s life.”^[68]

39. [39]
    As has been noted, the starting point, as a foundational issue, is whether the applicant has established that adequate provision has not been made for her “proper maintenance and support” from the Estate, which particularly devolves to consideration as to her established need for such provision. The contextual relevance of the small nature of the Estate arises at this first and in the next stage and more particularly in the ultimate conclusion as to what, if any, provision the Court finds should be made for such support, from the Estate. In Hartley v Hartley,^[69] it was determined that it was an error in the application of legal principle for considerations as to disentitling conduct, pursuant to s 41(2)(c), to be considered at the first rather than later stage. Further, the observation in Hughes v National Trustees, Executors & Agency Company of Australasia Limited, was:

“The question whether conduct is sufficient to disentitle an applicant to relief must depend not only on the nature of the conduct itself, but also, to some extent, on the strength of his need or claim to provision from the estate of the testatrix. The stronger the applicant's case for relief, the more reprehensible must have been his conduct to disentitle him to the benefit of any provision.”^[70]

The Estate

40. [40]
    It is convenient to first consider the evidence as to the Estate, before considering the issue as to adequacy of provision for the applicant and then considering the remaining issues as they arise in respect determining what, if any, provision should be made from the Estate, including as to whether there has been disentitling conduct such as to warrant refusal to make an order.
41. [41]
    As noted, the applicant proceeds upon the basis of ascribing a value of $480,000 to the Estate at the time of hearing. That is based upon an understanding that all liabilities of the Estate have been realised and the only remaining asset is the unit at Buderim. The further basis is that in September 2021, Ray White Mooloolaba provided an informal valuation to the applicant by email, stating, “based on the current market movements and comparable properties I see the above property sitting $440,000 - $480,000.”^[71]
42. [42]
    However and in her initial affidavit, the respondent set out the value of the Estate at approximately $475,656.00, consisting of the unit in Buderim (said to be valued at $425,000 by Ray White, Buderim on 8 August 2019), bank funds on 20 January 2020 of $58,548.66, and liabilities of $7,892.00.^[72]
43. [43]
    In February 2022, the closing balance of the deceased’s bank account was $128.37,^[73] having been depleted by some or all of the costs of the deceased funeral, the payment made to Anthony Jonathan Speechley, mediation costs, council rates, insurance, termite and pest control, forensic accounting, property repairs, MM memorials, and legal fees.^[74] The respondent who, with her husband, has resided in this property since at least 1 August 2019,^[75] attests to having arranged for maintenance, costing approximately $17,000 between April and June 2019, to be performed on the property that was showing signs of wear and age.^[76] The applicant also points to the acknowledgement of the benefit of residence in that unit over the period involved, as opposed to paying $1,000 per week in rent elsewhere.^[77] But that is a benefit flowing pragmatically from the bequest of that property to the respondent, subject only to the determination of this application, and apart from noting this benefit to the respondent’s resources, there is no developed contention as to what particular relevance this consideration has to the issues to be determined.
44. [44]
    As earlier noted,^[78] the payment to Anthony Jonathan Speechley has been acknowledged as paid in satisfaction of his now discontinued claim against the Estate. However there has been no order made pursuant to s 41 authorising the executor to make such a distribution from the Estate and the issue has not been the subject of any particular attention in hearing this application. Presumedly, this may be because the respondent executrix is the sole beneficiary under the Will and all payments out of the Estate including any provision made to a sibling will effectively come from her share of the Estate.
45. [45]
    Accordingly, and as far as the evidence permits, it is to be accepted, as the applicant contends, that a figure of approaching $480,000, is an appropriate estimate of the value of the Estate which remains as the share to the respondent under the Will and potentially subject to the application.

Adequacy of provision for the applicant

46. [46]
    For the applicant, her position in terms of need of support from the Estate, is summarised in terms that she:

    1. was born in July 1953 and was at the time of trial aged 68 years;
    2. is a discharged bankrupt, which she sought to explain as a consequence of her support, including financially, of her son after his hospitalisation after a house fire and the incidental loss of a beauty therapy business she had operated over prior years;^[79]
    3. lives in rented and shared accommodation, with only the following identified assets:
       1. (i)
          $12,009.41 in savings;^[80]
       2. (ii)
          a car valued at $5,000;
       3. (iii)
          household contents valued at $10,000; and
       4. (iii)
          art valued at $2,000;
    4. attests to having been unable to work since she was 57 years old,^[81] although she also describes attempting unsuccessfully to return to nursing in 2013, some maintenance of beauty therapy work and receipt of a total permanent disability payment of $43,000 in 2015;^[82]
    5. has no remaining superannuation entitlements, with her income being derived by way of disability support pension and rent assistance, the net result being the receipt of $21,921 per annum, in 2019, and $25,155 per annum in 2021.

Her position is that her income is entirely spent on living expenses.^[83]  Further, that position is in the context of diagnoses of a number of physical and mental health conditions in the nature of complex PTSD, prinzmetal angina, hiatus hernia, gastric reflux, supraspinatus tendinitis of the left shoulder, prolapsed disc in lumbar spine, lymphedema and osteoarthritis of the spine, knees and feet.  In particular she has suffered from breast cancer and underwent a mastectomy on her right breast in February 2022 and has also had an ovarian tumour removed.^[84]

47. [47]
    The respondent’s position in respect of the applicant’s financial situation is substantially premised upon some issues arising out of a review of the disclosed financial records of the applicant by an accountant engaged by the respondent, over three years ending 30 September, respectively in 2019, 2020 and 2021.^[85]  Ultimately, the respondent’s contention, made in reference to a number of authorities recognising a finding of failure to make full and frank disclosure by an applicant being a fundamental impediment to making an award,^[86] is that there is in this instance such a failure and impediment to an award.^[87]
48. [48]
    The applicant’s submissions are critical of the respondent’s commissioning of the accountant’s report.  This includes notation that despite contended lack of compliance with rules relating to the evidence, there was no objection taken to it being introduced in evidence.  For the applicant, the contention is that this report was “unnecessary, costly and assists in confirming the second applicant’s poor financial position.^[88] Particular reliance is placed on some conclusory views expressed by the accountant, albeit in the context of some expression of the limitations of the exercise undertaken to the available materials including only descriptions appearing on the face of the records for the purpose of allocating the entries, as follows:

“Schedule 1 indicates the primary source of Ms Speechley’s income is Centrelink Benefits. This aligns with the information in the Affidavits provided. Additional funds are received from subletting rooms at her residence (which are offset against rent paid in Schedule 1).

…

Having regard for the limitations discussed in the preceding paragraphs in relation to the ability to accurately allocate withdrawals to the various expense types, it does appear that, overall, the majority of living costs detailed in Ms Speechley’s affidavit affirmed on 24 September 2021 broadly align with the banking records provided. It is, however, possible that there are items of discretionary expenditure which are not able to be identified from the description of the banking records.

…

As noted previously, overall, the majority of living expenses appear to broadly align with the estimated expenditure disclosed in the affidavits. I note that actual rental expenditure is lower than estimated in the affidavits, however this may be due to amounts received from tenants being offset against rent paid, rather than property expenses. From the available information it is not possible to separate receipts from tenants in any more detail.”

49. [49]
    Notwithstanding the general effect of such observations, the respondent pursued a number of suggestions in cross-examination of the applicant as to indicia of other sources of income, including aspects of expenditure suggesting the same.  In the main, these suggestions, as repeated in the respondent’s submissions, remained no more than that and it is not necessary to dwell on them.  An ultimate submission of the respondent is that:

“It is conceded that her bank records do not indicate a life of luxury, but this objective data indicates that perhaps she lives far more comfortably than she has deposed.”^[89]

50. [50]
    Particular attention is paid to what may be regarded as some lack of meaningful explanation for what was pointed out to be some missing pages from the bank records disclosed by the applicant and the absence of disclosure by her of some additional Suncorp accounts, which the applicant ultimately described as “E-Options” accounts.^[90]
51. [51]
    However, and particularly in the light of the observations of the accountant and the absence of any development by the respondent of any particular indicia of any substantial financial resource or other source of income for the applicant, it is unnecessary to dwell on these contentions.
52. [52]
    However there are some more relevant considerations that do emerge from the evidence:

    1. Whilst not disclosed in the applicant’s original affidavit,^[91] nor in her later affidavit filed to update her circumstances,^[92] six deposits totalling $19,600, between 20 March 2020 and 29 March 2021, were identified in the bank records as direct credits from ‘DJ Williams’, who the applicant identified as David Williams, a close friend and former lover,^[93] who she had known since 1992.^[94]  Apart from a credit of $6,000, on 29 March 2021, the applicant’s explanation is as to support for the benefit of her son Chad and ultimately also reflected in some items of expenditure otherwise identified by the respondent.  There is however some apparent merit in criticism raised by the respondent as to lack of disclosure by the applicant of this source of support and the absence of any more detailed evidence as to this relationship and past source of financial support; and
    2. A more particular feature of Mr Williams’ support is identified in the $6,000 credit being in respect of the applicant’s pursuit of an ambition to self-publish her autobiography and the identification of total expenditure of $9,748.15 with a self-publishing service: XLIBRIS, expenditure which the applicant conceded was a “luxury” supported by Mr Williams.^[95]
53. [53]
    It may also be accepted that a number of discrepancies are identified in respect of the evidence relating to the applicant’s conduct of a home-based beauty therapy business,^[96] including the applicant’s contention that she lied in a text message sent to Mrs Laura Commins, on 17 May 2017, in stating that she was “still keeping up” such a business.  However, and apart from noting any particular identification of any income earned from seeing any clients in 2019,^[97] in the context of the accountant’s observations, it is not apparent that there is any undermining of the applicant’s position as to the absence of any ongoing earning capacity from such activities.
54. [54]
    The issue as to the applicant’s state of health is also relevant to that asserted absence of earning capacity.  Various contentions are also raised in this regard.  Although, it is ultimately submitted by the respondent that:

“It is conceded that Jennifer has a history of significant cancer which has just recurred for the third time.  It is also conceded her reports of trauma reactions are given some weight by two health professionals with whom she has a long-standing professional relationship.  Yet a more independent appraisal of her mental health has not been provided to the court.  Also their source of information for her mental health is ultimately their patient, and elsewhere she has declared a full, successful career as a registered nurse and beautician.  Given Jennifer’s long work history online, and the evidence of her working in recent times, the extent to which she has been incapacitated appears not without complication.”

55. [55]
    Unsurprisingly, having regard to her occupation as a psychologist, the respondent’s attention is drawn to the applicant’s mental health issues.  In particular, she identifies that the applicant’s diagnosis of PTSD is described as resulting, in the first instance, from a “home invasion” occurring in January 1969 and when the applicant was 15 years old.^[98]
56. [56]
    The respondent denies that any such event occurred, on the basis that the event is said to have occurred on the night their younger brother Anthony was born and when the respondent was also at the house.  At that time, the respondent would have been about six years of age.  The respondent seeks to support her position and in seeking a finding that the applicant has been deliberately untruthful in her assertion as to such an event, by reference to the following considerations:

    1. Despite the applicant’s contention that a named perpetrator was captured and convicted of offences, the respondent refers to an unproduced email from the “State Archives of Queensland” advising “that no records are held for … the alleged perpetrator” and that a search of local newspapers for Brisbane/Ipswich found nothing reported at the time;^[99]
    2. The absence of any corroboration or, as the respondent contends, even in pointing to any familial knowledge about such an incident; and
    3. That it was unlikely that the respondent had, as the applicant contended, slept through such an event and more particularly, afterwards remained unaware of it and where it remained effectively unexplained by the applicant, that she had never previously mentioned it;^[100]  and
57. [57]
    Whilst in the context of other findings made below as to the applicant’s credibility and reliability as a witness, there may be reason to be circumspect about this aspect of the applicant’s evidence, there is no basis for finding that the applicant has deliberately lied about such an incident.  Nor, more particularly, and in the context of some acknowledged further contributions to her mental health conditions, would any such finding necessarily tend to undermine the evidence as to her contemporary diagnoses or the relationship of such conditions to the applicant’s contemporary earning capacity.

The respondent’s circumstances

58. [58]
    Other relevant considerations, in this context, are the circumstances of the respondent’s claim to entitlement out of the Estate. The respondent’s position is summarised from the evidence, as follows:

    1. Although she continued, at age 59 at the hearing, to practice as a psychologist, she points to her financial situation having been affected, and limited to mostly part-time work, by chronic health conditions of endometriosis since 1984, as well as systemic lupus erythematosus since 2003;^[101]
    2. Her 79 year old partner has been a pensioner since 2009 and he has prostate cancer and has been subjected to surgical procedures for this and a “suspicious lymph node”.^[102] After retiring from work as a fleet manager selling new vehicles, he was declared bankrupt in 2009 and his sole income is the aged pension. He has no superannuation or separate savings;^[103]
    3. The respondent deposed to her taxable income averaging $40,000 over the 2017 to 2019 financial years. Although, a notice of assessment for the 2018 year was in the amount of $45,402.^[104] In evidence, the respondent acknowledged something in the order of $50,000 for the 2020 financial year;^[105]
    4. It was also deposed that:
       1. (i)
          They have four bank accounts and the “average monthly balance is between $1,000 to $4,000”;^[106]
       2. (ii)
          The respondent had assets totalling $25,753 (consisting of a car valued at $15,500, bank accounts totalling $10,253 including $800 of collected GST to be remitted to the ATO);^[107]
       3. (iii)
          The respondent’s superannuation balance was approximately $18,000.^[108]
59. [59]
    For the applicant, there were some criticisms raised as to some aspects of the respondent’s evidence, including that she had not provided even basic documents to prove her position but the difficulty is in discerning that, in any material respect, her stated position was put in issue. An exception is the unsatisfactory way in which she sought to deal with their occupation of the deceased’s unit from August 2019. In her affidavit filed in February 2020, the respondent was, it must be said, disingenuous in asserting:

“211.  John and I are currently without secure accommodation, and are housesitting.”^[109]

This does provide a basis for being circumspect as to at least ready acceptance of the respondent’s evidence.

60. [60]
    Importantly, there was no challenge to the propositions arising from the respondent’s evidence that she maintained a life-long close and supportive relationship with her father, including in respect of his care in respect of his ill-health in the later years of his life.^[110] This aspect, as it serves to support the strength of the respondent’s claim upon the Estate, is also supported by the evidence of Mr Commins.^[111]

The applicant’s relationship with the deceased

61. [61]
    The applicant herself describes complicated relationships with her father and particularly her mother. In part, she ascribes such difficulties as occurring in the context that she was told at age 16 that she was her parents only unplanned pregnancy and she then attests that:

“Throughout my life, I continuously told my father that I felt unwanted because my mother did not hug or kiss me or tell me that that she loved me. However, my father reassured me that he wanted and loved me. The relationship I had with my mother impacted on my ability to have a relationship with my father.”^[112]

However, the respondent deposes to seeing her mother hug and kiss the applicant.^[113]

62. [62]
    There is much evidence in the proceeding which seeks to address the applicant’s relationship with her father, in the wider context of other familial relationships and particularly that between the applicant and her mother. As has been noted, dealing with considerations as to any sense of estrangement between a testator and an applicant for provision out of an estate, potentially requires regard being had to detailed familial interactions and the nuance relating to them, including from individual perspectives.
63. [63]
    It may be seen that the admission of the statutory declaration of the deceased is particularly in relevance to this issue of his relationship with the applicant. It is not a matter of simple adjudication upon the sufficiency or quality of the reasons provided by the testator for not making any provision from the Estate for the applicant, because the statute allows for such provision to be made despite any such testamentary intent and entirely upon the considerations identified in s 41 of the Succession Act. However, and as further discussed below, the expression of testamentary intent, whether enlarged upon, as in the statutory declaration here, or not, remains relevant and particularly to the ultimate question as whether it is proper to make some particular provision from the Estate.
64. [64]
    What may be immediately noted is that there is no particular significance in the bare fact that the applicant is an adult child or that she had not been dependent on the deceased since the age of 18. Neither can the statement that the deceased was unaware of her financial situation assist in respect of the weight to be afforded to the statement of testamentary intent, but in any event that is now a matter for consideration by the Court. Further, there is evidence before the Court that the uncertainty of the deceased as to whether the applicant “is still going by the surname ‘Speechley’”, was misplaced,^[114] apart from being an irrelevant consideration. Accordingly, the statements which remain particularly relevant and to be considered with other relevant evidence, as to their relationship and the issue of estrangement, are:

    1. …
    2. …
    3. Jennifer and I do not confide in one another.
    4. …  she sent me letters care of my predeceased daughter’s address requesting I send her $350,000.00 to purchase her a house. I did not send her money as I do not even know Jennifer anymore.
    5. I have not spoken to Jennifer for over twenty (20) years.
    6. …
    7. There is no father/daughter relationship between myself and Jennifer.”
65. [65]
    The applicant describes a loving, supportive, and caring relationship with her father during her childhood, who was affectionate and spent time with her.^[115] She notes that combing her father’s hair, cutting his nails, and massaging his face led her to becoming a beauty therapist.^[116] The respondent describes a “privileged childhood” with “two loving parents” that provided “everything I needed”.^[117]
66. [66]
    The applicant refers to her marriage in 1974, with her father paying for the wedding and “giving the bride away”.^[118] She says that her choice to subsequently separate from her husband in 1980 was not well-received by her catholic parents and, in particular that it was her mother’s angry and demeaning reactions that led to “a permanent and longstanding rift” between them.^[119]  Despite the applicant’s contentions, the respondent recalls her father being supportive throughout her own divorce.^[120] The applicant describes that her attempt to reconcile her relationship with her husband was to appease her parents, but she ultimately separated from him in 1981.^[121] The applicant describes her father visiting her in secret from time to time during this period without her family knowing.^[122]
67. [67]
    Prior to these events, the applicant attests to returning to Brisbane for over 10 months in 1974 to assist in caring for her father and to support her parents (as her mother could not drive) due to a workplace injury suffered by her father.^[123] The respondent contends that it was actually a “2-3 week visit” as the applicant was newly married and her husband remained in their marital home in Darwin. She further deposed to her father not requiring the applicant’s assistance as he remained in hospital for 3 months, and later received transport assistance from a colleague before recovering enough to drive his automatic car himself.^[124] The applicant states that she also cared for her youngest siblings, including the respondent, in the family home for 3 months in 1977 whilst her parents travelled, with her father saying words to the effect: “I will repay you one day and make sure you are remembered in my will”, with her response to the effect: “I do it because I love my family.”^[125] The respondent deposes to the length of their parents’ overseas holiday being 6 weeks in duration, and her awareness of the arrangements for paying the applicant an equivalent to her wages and providing “housekeeping” in addition .^[126]
68. [68]
    From 1981 to 1986 and 1989 to 1996, the applicant describes visiting her parents “about 4 times a year” and calling home on some Sunday nights.^[127] The applicant further deposes to a period of 9 months, in 1983, that the deceased partially resided with the applicant to avoid commuting from the Sunshine Coast to Brisbane for work.^[128] During that time, and before he secured his own accommodation, he would stay for 4 nights a week, and after purchasing a unit of his own, would stay for “2 to 4 nights a week”. It is described that the applicant would cook for her father, do his washing, and generally keep the house in order and there was repetition of his promise to repay and remember her in his Will.^[129]  The respondent deposes to the deceased staying with Jennifer two nights a week while living in Caloundra and commuting to Brisbane for work, but that in March 1983 the deceased and his wife purchased a unit in St Lucia, Brisbane which necessarily meant the deceased no longer needed to stay with the applicant. In particular, the respondent relies on a 1983 diary entry of their mother confirming the purchase of the property and their living arrangements changing.^[130]
69. [69]
    The applicant noted that the court proceedings surrounding her domestically violent relationship with a partner in 1990 had been “detrimental” to her relationship with her father.^[131] Despite this, she describes having a “good relationship” with her father up until 1996 when she was 43 years old.^[132] In 1996, the applicant had a disagreement with her sister, Theresa, which she describes as ultimately leading to “an upset” between she and her mother and the deterioration of her relationship with both of her parents.^[133] She says she told her father that she could not keep seeing him in secret and that she was told that her parents did not wish to speak with her when she telephoned.
70. [70]
    The applicant fell ill on various occasions throughout 1997 to 2000, with conditions such as breast cancer, an ovarian tumour and pneumonia. She says her parents were not present or contactable during this time as they had moved to Townsville and her only knowledge of them was by updates from Theresa. Father’s Day and birthday cards were returned to the applicant via mail.^[134]
71. [71]
    The applicant notes that her mother died on 27 May 2001 and that the reason she did not attend the funeral or visit her mother in hospital was because, as she had told her father, that her sister Theresa did not notify her of her mother’s death until 8 days after she had died.^[135] The respondent deposes that the actual date of her mother’s death was 26 May 2001 and that she was present on that same day when Theresa notified the applicant of their mother’s death and the funeral arrangements.^[136] 
72. [72]
    The applicant describes the last time she saw her father was November 2005,^[137] some 13 years before his death. She said that this was around the time of a financial dispute between her father and brother, Anthony, and in discussions he accused her of taking Anthony’s side.^[138] She also acknowledges that in August 2006 she sent her father the letter to which he refers in the statutory declaration requesting a loan for the purpose of securing accommodation for her son Chad after the fire.^[139] It is on this basis that she denies the accusation in the statutory declaration that she had not spoken with her father for 20 years rather than “close to 13 years”.^[140] The respondent contends that her mother and father had irregular contact with the applicant prior to December 1995, which was described as “1-2 visits a year” and “the odd phone call”, and that she had heard both her mother and father describe the last time they saw or spoke to the applicant as Christmas in 1995.^[141]
73. [73]
    As is evident from this review of the evidence, almost the entirety of the contentions of the applicant, in seeking to outline and explain, in a favourable light to her position, the circumstances of her relationship with and estrangement from her father, are put in issue by the respondent.  For present purposes, it unnecessary to attempt to examine further such contrary assertions of the respondent as to aspects of timing or chronology in respect of events, as differences in reference points and also criticism which is based on the respondent’s perceptions and opinions of the character of each of her parents and how each of them was likely to have acted towards or in respect of the applicant.  Particular aspects of the respondent’s contradiction of the evidence of the applicant which are based upon her own asserted knowledge of relevant matters have been noted.
74. [74]
    A particular aspect of the issue as to the applicant’s relationship with her father is the influence of her relationship with her mother, until her mother’s death in 2001.  As has been noted, the applicant describes a rift in her relationship with her mother, which she says thereafter affected and influenced her father’s relationship to her.  The applicant attributes fault to her mother in terms of her reaction to the breakdown of the applicant’s marriage, against the background of what she describes as her mother’s lack of love and affection for her.  This is particularly put in issue by the respondent, who particularly recounts her own recollection of the applicant’s difficult relationship with her mother and the applicant speaking disparagingly to others about their mother before the applicant’s marriage.^[142]
75. [75]
    The respondent also deposes to the applicant’s verbal and physical abuse of her mother. She deposes to an incident in 1979, in the context of the applicant being at their home and the applicant being told by their mother of a telephone call from the applicant’s husband, only to then witness the applicant “stomping” down the hallway to grab the telephone from their mother and to yell obscenities before slamming it down and to then turn to abuse their mother, physically as a larger person standing over her and jabbing her fingers into their mother’s shoulder and verbally abusing her, which verbal abuse continued “for hours”, before their mother left the house and their father came home from work to ask the applicant to leave the house.  The respondent says that she went in the car when her father then drove the applicant to her friend’s place in Brisbane.  She describes them returning home to witness her father attempting to console her tearful mother and that on the following day she saw bruising on her mother’s shoulder.^[143]
76. [76]
    The respondent relies upon her deceased mother’s diarised account of this event, to similar effect, in her 1983 diary, including the notation: “Mandy knows about it all”, as acknowledgment of the respondent’s presence as a witness.^[144] 
77. [77]
    Some other parts of that diary are referred to in evidence, but they do not appear to establish any significant contradiction of the applicant’s evidence or provide any greater insight into the applicant’s relationship with her parents.  This includes the page tendered by the applicant, marked Exhibit 4, which appears to be in continuation of the entry which has been noted as relied upon by the respondent.  In the first instance this serves to further confirm their mother’s assertion that the respondent was present at the incident.  Secondly, there is an assertion of a position acknowledged on both sides, that in terms of the difficulties between the applicant and her mother during her life, that their father “sat on the fence”.  Finally, in the context in which it appears, and the broader context of the circumstances addressed in this application, there appears to be little evidential value in the applicant’s reliance upon their mother’s further notation: “I disown Jennifer”.
78. [78]
    The applicant denies inflicting physical abuse, and in particular the allegation that she was “jabbing her [mother’s] shoulder with [her] finger” causing bruising.^[145] The applicant referred to the event as occurring on 30 March 1980 but contended that she suffered abuse from her mother and that the respondent was not present to witness such events taking place. While being cross-examined by the respondent, the applicant contended:

“I didn’t think that you were home March 30^th 1980. I don’t recall you being there. I – I accept that you say you were there and mum’s diary says you were there but I don’t recall you being there March 30th 1980, certainly not when mum was abusing me.”^[146]

In this context the applicant accepted that there was a dispute with her mother, which she described as:

“a defining point in my life where the relationship with my mother was ended; forever and ever, it was ended. And the relationship with my father had to be in secret from that day onwards. It was a defining point in my life that I will never ever, ever forget.”^[147]

There is some apparent difficulty in reconciling these assertions of the applicant with her other assertions that it was some event in 1996, involving her sister Theresa, which “caused an upset” between she and her mother such that afterwards her relationships with her parents were not the same.^[148]

79. [79]
    Further and in terms of other sources of evidence the respondent relies upon in contradiction of the applicant’s evidence there is, in addition to what has been noted as arising from her mother’s diary and the statutory declaration of the deceased, the evidence of Mr Commins. He described a position, as a nephew of the deceased and cousin of both the applicant and respondent, of maintaining a close association with his uncle, particularly after he lived in Buderim, which relationship commenced earlier in 2011 and when the deceased lived at their house for three months. He described a shared connection through until 2018, involving trips together back to the deceased’s hometown of Charleville and weekly family meals at his residence also involving his mother, the deceased’s older sister.^[149] Mr Commins, through that closeness of association with the deceased was also able to describe the closeness of relationship between the deceased and the respondent and her particular support of her father and care for him, particularly after his health declined from January 2018.^[150]
80. [80]
    Mr Commins’ evidence does not reflect as favourably on the applicant. He describes he and his wife reaching out to have contact with the applicant and in the context of awareness of the estrangement from his uncle, seeking to make arrangements to bring the two of them together. This included contact with the applicant when her father was hospitalised and in advising her as to his terminal diagnosis. Despite the applicant seeking to place emphasis upon his acknowledgement in cross-examination that the applicant had expressed a desire to meet with her father and the acknowledgement that his uncle remained opposed to contact and particularly when he was hospitalised, the clear effect is that there was a lack of any action on the applicant’s part in taking up any suggestion made in contact through he and his wife, including by coming to “neutral ground” at their place.^[151] The effect of this evidence is to undermine the effect of the applicant’s assertion that “despite my attempts to reconcile with my father, he refused to speak with me”, even if any of the actions she refers to could be described as any such attempts.^[152]
81. [81]
    Accordingly, an essential problem for the applicant in respect of her relationship with her father, is that she is not just in conflict with the respondent’s position but also in conflict the recorded assertions of both her parents in respect of relevant aspects of their relationship and her position is further undermined by the evidence of Mr Commins. There was nothing in the presentation of her evidence to the Court which served to mitigate the effect of these conflicts, or allowed for any confidence in acceptance of her evidence despite them.

Conclusions

82. [82]
    The conclusion as to it not being appropriate to rely upon the evidence of the applicant has decisive consequences, even if it were able to be concluded that she has established circumstances indicative of some need for support from the Estate. As has been noted as recognised in Hartley, in reference to the earlier observations in Pizzino,^[153] financial need is but one aspect of the foundational question as to whether it is established that adequate provision has not been made for an applicant from an estate. The distinction was the subject of the observation in Chan v Chan,^[154] of the need to bear in mind that:

‘A significant set of factors in many cases is that identified as “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…”.  However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs required determination of the size of the estate and the claims of others on the beneficence of the testator.”

83. [83]
    Further, the evidence is as to a relatively small estate which was and remains substantially represented by the real property at Buderim, with the respondent’s claim to the most substantial share of the Estate, as recognised by the testator, also evident on any view of the evidence.
84. [84]
    The disentitling effect of an estrangement between applicant and testator is not to be limited to cases involving egregious behaviour on the part of an applicant or any callous or hostile behaviour to the testator. As discussed in Burke v Burke,^[155] such circumstances necessarily engage some recognition of the testator’s freedom of testamentary disposition, subject to the effect of provisions such as s 41 of the Succession Act, which have been recognised as embodying a sense of community expectation or values. Relevantly, it was observed:

85. [85]
    Subsequently, in Sgro v Thompson^[156] it was observed:

86. [86]
    Upon critical issues engaged in this matter, there is, in addition to the acknowledged shortcomings of the applicant’s evidence as to her own circumstances, an impediment to acceptance of her evidence as to providing any foundation for a favourable determination, particularly in reflection of any considerations which might point to any community expectation that her father should have left some provision for her in his Will and that it is proper for this Court to make such provision. In these circumstances and notwithstanding that there may be indication that she has some need for support from the Estate, where so much of the applicant’s claims are put in issue and where there is, for the reasons given, an inability to accept and act upon her evidence as to critical aspects of the broad evaluative judgement which is involved in the determination and the competing claim of the respondent from this relatively small estate is clear and strong, including in the sense of need notwithstanding any indication that her means may exceed that of the applicant, it is not appropriate to determine that inadequate provision has been made from the Estate for the proper maintenance and support of the applicant, let alone that it would be proper to made any award for her.
87. [87]
    Out of an abundance of caution, it may be indicated that in the event that this conclusion was not correct and having regard to the evidence and the most favourable view of it to the applicant, there would remain an undoubted limiting effect of the extent and duration of the estrangement between testator and applicant, such that it would not have been regarded as proper to allow an award of more than $50,000 in provision for the applicant from the estate.
88. [88]
    Accordingly, the application is dismissed.