Day v Peake[2023] QDC 178

DISTRICT COURT OF QUEENSLAND

1. [1]
   Desmond Guy (the deceased) was 95 years old when he died intestate on 25 July 2020. He had been receiving respite care in a nursing home since about 2013. His second wife had died on 26 January 2016, also intestate. Her estate had devolved to him (and his children) on her passing.
2. [2]
   The deceased had been married twice. He fathered his eldest child, Rosemary Peake (the respondent) from the first marriage. Six of the seven children from the second marriage including Lloyd Day (the applicant) survive. The deceased son named Neil had no children when he died.
3. [3]
   The respondent had communicated with her paternal half-siblings about taking steps to administer the estate following the death of their father. Scott Day is the youngest twin son of the second marriage. He had been granted letters of administration when his mother (the deceased’s second wife) died. Scott Day would not commit to the respondent’s repeated questioning about whether he was going to take on a similar role for their father, before ignoring her calls.
4. [4]
   When none of the others showed an interest (to the point of hostility by the applicant), and the Public Trustee indicated they might become involved on behalf of another sibling Brett Day, she decided to engage legal representatives.       
5. [5]
   The respondent was granted letters of administration on 2 August 2021 which appears to have precipitated the applications filed by Scott and Lloyd Day. I say that because of the timing of the applications and the fact that Scott and Lloyd Day actually have and continue to live at the adjoining properties at 51 and 55 Sutherland Street, Calliope (the properties) which really forms all of this modest estate.
6. [6]
   The total estimate of the estate is said to be about $440,000 (less liabilities and costs already incurred), based upon recently updated desktop valuations from an on-site valuation conducted in April 2022 of the ‘as is’ value of the properties. There are no other remaining cash or asset reserves.
7. [7]
   Scott Day made application on 19 October 2021 for adequate or further provision out of the estate. Scott Day’s legal representatives filed a Notice of Discontinuance on the day of the trial on 25 September 2023.
8. [8]
   Scott’s brother Lloyd Day joined in the application for adequate and further provision out of the estate on 30 March 2022. Accordingly, the application is out of time and leave is required to proceed.^[1]
9. [9]
   After having joined the proceeding in March 2022, the applicant’s legal representatives were granted leave to withdraw on 27 July 2023. He represented himself at trial, and ultimately did not challenge the evidence of the respondent. An order had been made on 21 June 2023 on the respondent’s application for a trial date to be set without the need for signature, in circumstances where the litigation had stalled, and the applicant refused to participate in the mandatory mediation process.
10. [10]
    There is good reason to assume there is considerable disharmony in the family, which is unsurprising in the circumstances of the proceedings. Even estranged adult siblings should have been prepared to engage in respectful discussions (if possible) to attempt agreement about what to do with the estate of the deceased.
11. [11]
    The remaining adult siblings of the applicant are Leanne Pearce; Narelle Phillips; Brett Day; Paul Day, and of course Paul’s twin Scott Day. They are the natural beneficiaries of the estate on intestacy.^[2]  Ms Pearce, Ms Phillips and Paul Day have not communicated at all about whether they require further provision out of the estate.
12. [12]
    No detailed information is known about the financial position of the sisters, other than at their age and stage in life, they most likely have equally competing needs as all the others, including the applicant and respondent.
13. [13]
    Brett Day’s financial affairs are administered by the Public Trustee. At 61, he is afflicted with serious ailments including schizophrenia, mild intellectual disability and an acquired brain injury secondary to trauma suffered in a vehicle accident when he was a child. He receives extensive ‘around the clock’ care in supported accommodation. I am prepared to accept that Brett Day has substantial ongoing needs and should receive provision out of the estate.
14. [14]
    Paul Day (Scott’s twin) was injured while serving in the Australian Army; he is consequently debilitated mentally and physically, lives in rental accommodation and is in receipt of a pension. It is safe to conclude that Paul Day has a need for provision out of his father’s estate.
15. [15]
    Scott Day did not proceed to trial with his application. In the usual course I should not be made aware of the terms of settlement (if any). After stating the resolution of that action did not materially impact the size of the potential estate pool, counsel for the respondent confirmed a sum of $45,000 withdrawn from the deceased’s bank account by Scott Day in the days following the death, no longer formed part of the pool. That withdrawal had left a balance of about $13,600 in the deceased’s account.
16. [16]
    Otherwise, now aged 53, Scott Day is unemployed and is paid Jobseeker payments. He left his job in the central west in 2014 when he returned home and was paid a carer’s pension to look after his mother. By that stage, his father was living in the nursing care home. He has continued to live rent free at the properties since he returned to the properties, and after his mother died in early 2016. He deposed to owning vehicles, shares, a shed and ‘household contents’ worth $6000, and 16 firearms.
17. [17]
    Having discontinued his application, I am satisfied Scott Day does not seek further provision out of the estate, nor is he entitled to it.
18. [18]
    The position of the applicant Lloyd Day is that he should receive the benefit of the properties (which now comprises the whole of the estate), to the exclusion of all other beneficiaries. The remaining cash has well and truly been expended by the costs run up by the need to appoint an administrator, in dealing with the unnecessary and churlish opposition to the administrator undertaking her duty, and the resultant need of the administrator to respond to this litigation.
19. [19]
    Lloyd Day suggested in messages sent to the respondent and to her legal representatives (apart from abusing and threatening her) that he doubted her paternity and mentioned her having a DNA test. I note that there was no evidence or cross-examination on this point at trial, and no declaration has been sought.^[3] There is ample evidence to confirm the deceased was the respondent’s father and she is entitled to provision out of the estate.
20. [20]
    The respondent who is now 71 years of age works part time as a tax agent. She experiences considerable ill-health, as does her husband. Her position is that the surviving beneficiaries (including herself) should all receive an equal share, in accordance with the usual rule on intestacy.
21. [21]
    Dealing generally with the relevant legal principles before I turn to the findings of fact, the applicant, not having instituted the proceedings within 9 months of the death of the deceased, requires the discretion of the court to grant leave to proceed.
22. [22]
    Counsel for the respondent was content for the court to hear the case and then make the determination about the grant of leave, rather than strike it out, out of fairness to the self-represented litigant.^[4] That was appropriate, even though the issue could have been dealt with on application, as in Enoch v Public Trustee of Qld [2005] QSC 194 where Wilson J said this at [6]:

“The court has an unfettered discretion whether to extend the time for making such an application. As Sir Robert Megarry VC observed of similar legislation in England in In re Salmond decd [1981] 1 Ch 167, the onus lies on the applicant to establish sufficient grounds for taking the case outside what is not merely a procedural time limit but a substantive one imposed by the Act. Four factors which can be relevant to the exercise of the discretion are –              

1. whether there is an adequate explanation for the delay;

2. whether there would be any prejudice to the beneficiaries;

3. whether there has been any unconscionable conduct by the applicant; and

4. the strength of the applicant’s case.

See Warren v McKnight (1996) 40 NSWLR 390 at 394 and Bird v Bird [2002] QSC 202.”

23. [23]
    It is uncontroversial that if leave is granted, the applicant has the onus of satisfying the court, on the balance of probabilities, of the justification to claim further provision out of the estate. As a mature male adult, the applicant is expected to be able to provide for himself, unless there is some special need shown.^[5]
24. [24]
    It follows that in the circumstances of this case, the deceased’s surviving (adult) children are each entitled to equal provision out of the estate, unless the applicant can establish a need for further provision.
25. [25]
    It is also well-settled the court is required to assess the two-step process of:

    1. Determining the jurisdictional question – whether on intestacy, adequate provision has not been made for the proper maintenance and support of the applicant; and
    2. Upon determining the jurisdictional question in favour of the applicant, what order for provision may be made in the exercise of discretion.^[6]
26. [26]
    In making that assessment, as Ryan J said in Niebour-Pott & Anor v Pott [2020] QSC 7 at [130] inter alia: “A court is to consider the provision a wise and just testator would have thought it his or her moral duty to make for an applicant, having regard to community standards.”
27. [27]
    The common law is that the court should consider the ‘fictional will’ the deceased would have made to distribute the estate as on intestacy and then consider the needs and moral claims of the beneficiaries.^[7]
28. [28]
    The court may have regard to the ‘moral claim’ of an applicant, taking into account the ‘totality of the relationship’ in the provision of care, financial or other contribution, or sacrifice, made or given to the deceased, in considering the discretionary issue.^[8] The court may also consider the expectation of inheritance an applicant has from statements made prior to death.
29. [29]
    To succeed the applicant must be able to show some ‘need’ for further provision, although that cannot be regarded as the primary or dominant feature for consideration.^[9]
30. [30]
    Returning to the evidence, the applicant Lloyd Day is a 58-year-old single man with no dependants who deposes to have worked sporadically in plant operation on civil contracts. He owns an excavator and failed in starting his own business in 2020. He claimed to have a medical ailment to do with his heart that he is taking medication for.
31. [31]
    He has lived at his parent’s properties for a long time, since about 1999, rent free. He claims to have a moral claim to inheritance on assurances given, claims to have contributed substantially in the provision of care, as well as providing substantial financial contributions and performing extensive labour on the properties. In particular, he gave evidence he contributed towards the payment of rates, insurance and utilities and maintained the properties.
32. [32]
    He deposed to not having received any income at all for the 2019, 2020 and 2021 financial years, but contradicted himself directly on that point, confirming he had been contracted to work throughout those years. He could not say what income he had received. He claimed his accountant had all that information “for the last three years.” He said he hadn’t worked and was receiving Jobseeker or unemployment benefits, before saying he had again worked up until 24 May 2023 when he left work to prepare for the trial.
33. [33]
    There was no evidence tendered which supported the applicant’s vague assertions about what he did for his parents, when he expended his financial contribution and when he performed the work, including earthmoving. There was no independent evidence about his income, other than being able to consult a notebook about who he had worked for and when.
34. [34]
    The applicant confirmed he had $150,000 to $200,000 “locked up” in a superannuation fund. He had not disclosed that asset.
35. [35]
    The applicant has half shares in a block of land he conjointly owns with his brother Paul. At trial, the applicant confirmed he has had an interest in that land for over 20 years and has intentions to build a shed on it to live in, although he also said he has lived at the properties at Calliope “since he was born” and he won’t “allow” them to be sold and divided into seven.
36. [36]
    Due to the diligence of the respondent’s solicitors it has been independently established that what the applicant says about financial contributions could not possibly be true: the rates have continued to be paid out of the deceased’s bank account while he resided in a nursing home and even after he died. Similarly, insurance premiums which provided coverage for contents worth $215,500 were paid out of the deceased’s bank account over the same time frame. The applicant said his mother had done that, before saying he hadn’t renewed the policies when it was pointed out his mother had died years earlier.
37. [37]
    The applicant’s affidavit confirms his father’s pension paid for his care at the nursing home from about 2013 until he died, which contradicted another claim of contribution.
38. [38]
    The applicant deposed that he financially supported his brother Scott, paying for his food and car costs. However, the bank records confirm the deceased’s bank account was also accessed, after his second wife died, and while he was in the nursing home, and then after his death, to pay for many things that only Scott and Lloyd Day could have benefitted from. The total amount withdrawn from the deceased’s account was in excess of $85,500 and includes expenditure for groceries, alcohol, car registration, fuel and vehicle expenses, electricity, entertainment (including at the Calliope Country Club), and other cash withdrawals.^[10] 
39. [39]
    An on-site independent valuation was eventually performed in April 2022. The reports confirm the state of the properties. In particular, the house was in a very poor condition; indeed, it was not considered to be legally habitable. There was heavy mould throughout the house, all internal doors had been removed, the paintwork was poor, the floor coverings had been ripped up and removed, and there were numerous holes in the internal fibro walls. There were no cooking facilities installed. There was rubbish strewn throughout the house and more rubbish, car bodies and car parts in both of the over-grown and unkempt yards. The photographs correlate with the valuer’s description the properties bear the appearance of being inhabited by hoarders. The house guttering was noted to be missing, which contradicts the applicant’s evidence he spent $50,000 on maintenance including to the roof.
40. [40]
    When he gave evidence, the applicant confirmed he still lived in the house, said the house was still “wrecked” and claimed his brother Paul had done that damage some years earlier, when he came out of the Army.
41. [41]
    Lloyd Day gave evidence of providing financial and physical effort to the maintenance of the shed and house on each of the properties. The applicant sought to considerably inflate the value of the shed and the house has clearly not been maintained at all. 
42. [42]
    Overall, I found the applicant to be an unreliable, evasive and non-responsive witness. Allowing for the unusual environment of the courtroom, I observed that he would hedge, pause, and pretend to not be able to find documents he was being referred to, as if to cast about for an answer. He became sullen and gave mumbled answers meandering away from the topic when challenged about obvious untruths. There was ample independently obtained evidence that demonstrated what he was saying was patently false. Without more, I am not prepared to accept his evidence about any moral claim, or contribution, or need. I reject the applicant’s evidence.  
43. [43]
    Returning to the question of whether to grant leave, I am not persuaded there is an adequate or reasonable explanation for the delay. In my view, the applicant has likely joined in the proceedings simply to further his own interests.
44. [44]
    I am satisfied there has been considerable prejudice caused to the other beneficiaries. The opposition to the administration of the estate and consequent litigation has caused liabilities and costs which should not have been incurred. Appropriate provision could have been much earlier and to more deserving siblings, particularly his disabled brother Brett.
45. [45]
    I am prepared to find the applicant has engaged in unconscionable conduct. He has obstructed the respondent’s duty to administer the estate. I am prepared to find that the applicant thwarted attempts by the respondent to enter the properties to conduct an inventory of estate chattels, even with police assistance. There was also denial of access of the properties to the valuer. He has not disclosed the extent of the full assets of the estate, or their whereabouts. There is a missing Lexus motor vehicle, for example.
46. [46]
    The applicant has also abused and threatened the respondent, including by sending a message which reads “1 shot 1 kill. I was a cadet. Paul x 3rar” (presumably referring to his brother’s military experience and the applicant’s access to firearms).
47. [47]
    Lastly, the applicant’s prospects of succeeding were very poor, to the point of being futile.
48. [48]
    The applicant has failed to establish the jurisdictional issue. A wise and just testator would have likely made equal provision to all surviving issue, and being the default position, that should be the form of order of the court. Need has not been shown. The applicant is probably in a better financial position than most of the other beneficiaries.
49. [49]
    I am not satisfied that leave ought to be granted. The application is dismissed.
50. [50]
    The properties must be sold to allow for provision to the beneficiaries, on the failed application. The property has vested in the respondent as administrator of the estate for some time now. In my view, the evidence demonstrates the respondent has acted in good faith, to achieve a fair and equitable distribution of the estate among the beneficiaries. In my view, this is commendable, given she was excluded from provision made when the deceased’s second wife died in 2016.
51. [51]
    The respondent has been hampered in complying with her duty to administer the estate. This situation must not continue. The applicant and his brother Scott must offer up vacant possession of the properties, removing all personally owned belongings, without further delay. They should only return to the properties after successfully purchasing and upon having the title pass to them.
52. [52]
    Wide powers are conferred by the relevant provision to make any order, (including whether there should be the appointment of a trustee) for the more convenient administration of an estate.^[11]
53. [53]
    I will receive written submissions within 14 days of the delivery of these reasons as to the form of orders how the following is best achieved (and any other necessary ancillary orders):

1. The timeline and method by which Scott Day and the applicant Lloyd Day are to vacate or be evicted and/or forcibly removed from the properties;

2. Whether and how an inspection of the properties is to be performed to ascertain a true inventory of the estate;

3. The timeline and method by which the properties are to be cleaned up, repaired and readied for sale, if not to be marketed ‘as is’;

4. How the sale of the properties is to occur;

5. How the proceeds of sale are to be distributed to the beneficiaries;

6. Whether any amount is to be subtracted from Scott Day’s one-seventh provision following any compromise of his application; 

7. Whether priority should be given to payment of the outgoings, liabilities and costs incurred in the administration and litigation from:

1. the whole of the one-seventh provision made to Lloyd Day; and

2. to what proportion against the provision made to Scott Day;

8. As it is obvious the outgoings, liabilities and costs of the administration and litigation will exceed the one-seventh provision to Lloyd Day (and Scott Day), how the balance is to be claimed against the estate; and

9. Whether there should be a taxation of the costs of administration and litigation.