Murray v Houston[2023] QDC 17

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application made by the respondent pursuant to section 41 of the Succession Act 1981 (Qld). It arises from the death of Helen Bianca Murray (the deceased) on 9 July 2022, at an aged care facility in Peregian Springs. She was 90 years old. The deceased’s estate is modest. It consists of just over $479,000, being mostly comprised of the refundable accommodation deposit from her aged care home with the balance held in two bank accounts. The deceased is survived by her two children, Trenton David Murray (the applicant) and his older sister, Kim Therese Houston (the respondent). The parties have agreed as to how the estate should be divided between themselves, but it is necessary for this court to be persuaded that such provision should be made from the estate.

2. [2]
   The deceased left a will appointing the respondent as executor of her estate. Probate was granted on 26 October 2022. Under the terms of the will, the deceased bequeathed 5% of the estate to the applicant. The residue was to go to the respondent. According to a clause in her will, the deceased decided to apportion her estate in this way because ‘more than adequate provision has been made for Trenton’ during her lifetime and ‘any further provision for him would see Kim unfairly disadvantages and Trenton unfairly advantaged’. There is no evidence about what provision the deceased made for the applicant during her life. In December 2022, the applicant made a claim for provision out of the estate. Since then, the parties have agreed to a distribution of the estate that would see both the applicant and respondent receive equal shares. The issue to be resolved by the present application, in accordance with section 41, is whether the deceased left adequate provision for the applicant under the will and whether the court should exercise its discretion to make further provision from the estate of the deceased.

Evidence

3. [3]
   The essential evidence in the application consists of the affidavit of the applicant, filed 7 December 2022 and the affidavit of the respondent, filed 19 December 2022.^[1] The affidavits of the applicant and respondent are sparse. They give the court little information about matters relevant to the exercise of the court’s discretion. For example, there is no evidence of the relationship between the parties and the deceased when she was alive. There is little evidence of the applicant’s financial position and what there is, including his apparently unencumbered ownership of land worth $750,000, does not suggest hardship. There is even less evidence concerning the position of the respondent.

4. [4]
   What evidence there is shows that the applicant is 63 years old. He has a small amount in a savings account and an outstanding personal loan of $5,400. The applicant’s sole source of income is a Disability Support pension of about $1,000 each fortnight. This leaves him with little spare income. The respondent also deposes that due to several health conditions, the details of which have not been provided, his ability to work is significantly and permanently impaired. The applicant also owns an unregistered quad bike worth $4,000.

Consideration

5. [5]
   The present application is intended to give effect to the agreement of the parties reached in December 2022. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two-stage process is employed.^[2] First, the court must determine a jurisdictional question of whether an applicant has been left without adequate provision for his or her proper maintenance and support. If an applicant has been left without adequate provision, the court will determine what provision ought to be made in the circumstances. In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.^[3] The question of whether an applicant has been left without adequate provision is to be answered having regard to their financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate. If an applicant has a legitimate claim on the estate, the second question is what amount they should properly receive. This requires consideration of what provision a ‘wise and just testator’ would have made.

6. [6]
   On the material before the court, it is hard to determine the true financial position of the applicant. While he receives a Disability Support pension, it is said to be barely sufficient to cover his expenses. He seems to own a substantial asset. No evidence has been filed as to the nature of the relationship between the deceased and either the applicant or the respondent, beyond her wishes expressed in clause 10 of the will. Nor is there any evidence about the provisions made for the applicant by the deceased during her lifetime. Without such evidence it is difficult to determine whether the support provided to the applicant over the deceased’s lifetime, along with the 5% of the estate gifted to him in the will, amounts to adequate provision. But weight should be given to the fact that the parties have reached a compromise of their own accord. And perhaps the most important consideration is that if the application were to be refused, and litigation followed, most of this modest estate would go to the lawyers.

7. [7]
   For these reasons, I will make an order in the terms of the draft that has been provided.