Pearson v Denman[2023] QDC 221

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for family provision by the applicant stepdaughter of the deceased, under section 41(1) of the Succession Act 1981 (Qld).  The matter was to proceed to trial this morning but was settled on the eve of trial.  Orders under section 41(1) can only be made by the Court, but the approach to making orders where there is a settlement between parties with legal capacity is different from when a matter proceeds to trial.  In short, if, on the review of the material, the Court is satisfied the settlement falls within reasonable bounds as to the jurisdictional question and the exercise of discretion to make further provision, then the Court may make the orders to give effect to the settlement.^[1]    The parties seek orders today consistent with the terms of the settlement reached.  Ordinarily it is sufficient to give only brief reasons on such an application.  In my view, where there are adequate and proper submissions before the Court to sustain the settlement, then it is sufficient to refer to and rely on those submissions.  However, in this case, I wish to comment on some issues which arise, albeit I am content to make the orders sought by the parties.
2. [2]
   It is first necessary to give a brief outline of the circumstances of the applicant’s claim.  The deceased died in 2019, aged 98.  He was born in England, in 1920.  He left a will made March 2011.  The will appointed the respondent, his grandson, as executor and trustee.  Common form probate was obtained on 21 August 2019.  There has never been any challenge to that grant. 
3. [3]
   The deceased had two biological children with his first wife.  Only one concerns the Court in this application, which is his daughter, Yvonne, who is currently 75, and is the mother of the executor.  She is, it seems, the only living natural child of the deceased.  Her mother died of leukemia in 1979, at the age of 56.  It seems the deceased married again, and sadly lost his second wife.  He subsequently married Doris Enid Colborne on 13 October 1993.  
4. [4]
   Doris had four children:  Diane (the applicant), Faye, Danny, and Margaret.  Doris’ first husband had died in 1990.  On the marriage of the deceased and Doris, Doris’ children became the deceased’ s stepchildren. The deceased and Doris remained happily married until Doris’ death in September 2010.  It seems fair to say both sides of the blended family were involved in and attended the wedding and participated in the joint lives of Doris and the deceased. 
5. [5]
   A will was prepared by the deceased’s solicitor, dated March 2011.  In the applicant’s material, she gives evidence of investigations into the history of the wills and makes comments about the circumstances of the making of the current will.  That evidence is given in a way that, while willing to wound but afraid to strike, suggests impropriety by the executor.  Further, an implied allegation of impropriety is also made against the solicitor who prepared the will.  The basis for that suggestion was that there is something improper, arising from the common scenario of a longstanding family solicitor being made an executor of a will, with an express provision of a right to charge for services.  That suggestion was misconceived. 
6. [6]
   There was never any challenge to the validity of the will and nor was any step taken in that regard.  There was no point including the evidence referred to in the previous paragraph in material filed on a family provision application.  It should not have been included.   
7. [7]
   The estate at the date of the death was not a particularly large one in modern terms.  It was about $800,000.  The estate now, at the date of trial, is about $500,000. 
8. [8]
   There were two other applicants, Faye and Danny.  They were also stepchildren of the deceased, and natural children of Doris.  The issue of whether they remained stepchildren, even though Doris died before the deceased, was not raised by either party.  I think the issue was rightly not raised, given the judgment of Judge Byrne KC of this Court in McKew v Vivian [2023] QDC 146 that in circumstances where someone is a stepchild of a deceased, and their natural parent dies while the relationship is extant, they remain a stepchild applicant under the Act.  Consistent with what I said in Vukolic v Browning [2022] QDC 179, I should follow the approach of his Honour to construction of the Succession Act provisions unless I consider it plainly wrong.  In my respective view, his Honour’s analysis is correct. 
9. [9]
   Faye’s and Danny’s claims were settled at a mediation in May 2020.  Both settlements were subject to formal orders.  Sheridan DCJ of this Court made those orders in 2020.  Faye received $125,000, and Danny $100,000. 
10. [10]
    The tenor of the applicant’s evidence about Faye and Danny, and the settlement of their claims, seemed to be that the present applicant was more deserving than those applicants, despite them being in a worse position financially than her (though that might be debated) and seemingly, on moral claim grounds, arising out of her role in her stepfather’s life.  The suggestion was that if they received $125,000 and $100,000, then someone more deserving should receive $160,000 in comparison.  That approach was confirmed by the written opening of the applicant, at paragraphs 13 and 14. 
11. [11]
    What is suggested in the applicant’s submissions and the evidence, is that there is a principle in family provision, analogous to the parity principle known in the law of sentencing.^[2]  It is trite, of course, that it is necessary to weigh up competing claims at both stages in the determination of a family provision application.  However, where other claims are settled before the trial of the remaining claim, it is not correct, in my respectful view, that the sums for which the other claims are settled, should be treated as creating some kind of yardstick^[3] against which the claims of a claimant, in an analogous situation, should be measured at a later date, or that a remaining applicant’s claim should be approached by reference to the idea that there should be parity with the claims that were settled, taking into account the relevant merits of settled and contested claims.  That is so even where the settled claims are the subject of earlier Court orders, as is the case here. 
12. [12]
    There are at least three reasons for that. 
13. [13]
    First, where a claim is settled, a respondent, and indeed, an applicant, can settle based on provision which is more or less than might have been awarded by a Court on full consideration of the evidence.  One obvious reason for that is that parties cannot know, prior to trial, what findings the Court might make on contested issues, going to credibility and reliability, or how the Court might rule on legal issues, or what inferences the Court might draw, quite different from those which seem likely to the parties in mediation. 
14. [14]
    Second, the parties might be motivated to settle by factors other than those strictly relevant to the applicant’s claim for provision, including a wish just to be rid of the litigation.   Such considerations can properly inform mediations and settlements but will be irrelevant to a Court hearing an application on the merits of an applicant who, for whatever reason, has not settled. 
15. [15]
    Third, it is irrelevant that an earlier settlement is given effect by an order of a Court.  An order to give effect to a settlement is approached quite differently from the approach where a Court hears and determines a contested application, as I have already outlined. 
16. [16]
    In my view, the amount or value of earlier settlements with analogous applicants do not give rise to any particular implication as to the amount of provision to be made in favour of an applicant at trial.  The Court should reach its own conclusions as to the issues raised by s 41, even where an applicant is in a similar position in the contested application to that of the applicants who have settled the case and had the settlement confirmed by the Court. 
17. [17]
    What relevance do those settlements have for the trial of the claim of an applicant in the position of this applicant? 
18. [18]
    It can be accepted that at both the jurisdictional stage and the assessment of provision, the Court must consider competing claimants to the beneficiaries.  However, that does not mean that amount or value of settlements with competing claimants define the value of the claims of such competing claimants.  The only plain relevance of earlier settlements will be that they diminish the value of the estate from which an order may be made. 
19. [19]
    I now wish to turn to some observations about the evidence filed by the applicant in this case.  I, and other Judges of this Court and other Courts have expressed concern about inadmissible, irrelevant, and provocative evidence being led in family provision applications.  I have tried to articulate the problems, writing extra judicially.^[4]  The material filed by the applicant in this case did contain some evidence of each kind:  that is inadmissible, irrelevant, and provocative.  Some parts of the affidavits, filed by the applicant, managed to contain evidence which was all three at the same time. 
20. [20]
    The evidence suggesting that the will was not valid, or effected by some kind of misconduct, is but one example.  Another example is the hearsay allegation of $70,000 in cash, being held by the deceased at the time of death, which again implied misconduct on the part of a person or persons unknown (with the finger impliedly pointed at the executor or the principal beneficiary).  Not only was that evidence hearsay, it was also speculative, and glaringly inconsistent with the bank statements of the deceased.^[5]  The evidence should not have been led (at least in that form) and reliance on it should have been abandoned as soon as the bank statements came in.  This kind of evidence is inadmissible and unpersuasive, but perhaps more relevant for family provision applications, it can be a barrier to settlement.  It also contributes to the costs incurred in the application.  Parties receiving such allegations feel compelled to respond to them, as happened in this case.  The restrained response by the respondent is to be commended, but it still had to be dealt with.  It is the responsibility of legal practitioners to ensure relevant, admissible and persuasive evidence is put before the Court. 
21. [21]
    Many Judges of this and other Courts have expressed concern about the costs incurred in family provision litigation, particularly in smaller estates.  Legislative changes are in the wind for costs for smaller estates.  One cannot help but wonder if some of this unnecessary, irrelevant and provocative evidence (and there is more examples than the two that I gave) affected settlement of the applicant’s claim.  
22. [22]
    In my view, the settlement reached is more than fair to the applicant.  Indeed, having read all the material, it could be categorised as generous.  In any event, I make orders in terms of the draft.