Grady v Taylor[2023] QDC 75

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application made by the first respondent pursuant to s 41 of the Succession Act 1981 (Qld). It arises from the death of Janeta Wendy Grady (the deceased) on 31 October 2020, at a palliative care facility in Caloundra. She was 78 years old. The deceased’s estate is sizeable and is valued at over $1,500,000. It is mostly comprised of real property located at 7 Pacific View, Buderim (the Buderim property), two bank accounts and a mortgage fund. The Buderim property is unencumbered and was inherited by the deceased from her own father. The deceased had no biological children but is survived by her husband (applicant), two step-children, a niece and nephew (second respondents) and two step-granddaughters.

2. [2]
   The deceased left a will appointing the first respondent as executor of her estate. Probate was granted on 10 February 2021. Under this will, the deceased provides a conditional right to the applicant to reside in the Buderim property. According to a clause in the will, the applicant and deceased agreed that no further provision was to be made for him. The applicant denies knowing the content of the deceased’s will prior to her death and states that no agreement was made. The deceased’s intention, as expressed in the will, was to provide for her niece and nephew whose father (the deceased’s brother) did not receive an inheritance. The remainder of the estate was to be apportioned as follows: 40% to be given equally to the deceased’s nephew and niece, 48% to be given as charitable donations to specified organisation and 12% to be given equally to the deceased’s step-children. In April 2021, 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 the applicant receive a sum of $330,000 in replacement of his right to reside in the Buderim property. 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 13 April 2021 and the affidavit of Anne Reagan (one of the second respondents) filed 6 December 2021. Other persons or entities with an interest under the will have been advised of this application but filed no material.

The applicant

4. [4]
   The applicant is 85 years old. He has two children from his first marriage and two granddaughters. He married the deceased in 1987 and they remained married for 33 years until her death. In the four years prior to her death, the deceased was diagnosed with cancer. During this period, the applicant was her primary carer.

5. [5]
   The applicant was previously employed by Kyneton Shire Council in Victoria, before he retired in the late 1990’s. In the early years of their marriage, the applicant and the deceased resided in a property owned by the applicant in Kyneton. In 1998, the deceased’s father died, and the Buderim property was inherited by her. For the following ten years, the applicant and the deceased spent equal time residing between the Kyneton property and the Buderim property. The travel and maintenance costs during this period were paid for by the applicant. From 2008 the applicant and deceased resided in the Buderim property on a permanent basis. The Kyneton property was sold in 2013. Upon the sale of property, an investment was set up by the applicant from which a monthly amount of $3,500 was withdrawn to cover the couple’s expenses. Over time, approximately $290,000 was withdrawn from the applicant’s investment.

6. [6]
   The applicant’s assets amount to approximately $835,000. This largely consists of investments and a bank account. His weekly expenses are approximately $550 which accounts for essential items such as food, rates, and a small spending allowance. He does not receive a pension or government payments. Instead, the applicant relies on the interest generated from his investments and withdraws a monthly amount of $2,200. This interest revenue is insufficient in covering the applicant’s costs. Therefore, he must withdraw from the investment principals each month.

The second respondents

7. [7]
   The second respondents, Anne and Philip, are the niece and nephew of the deceased. Their father John is Janeta’s half-brother. John moved to the United States of America when he was 19 and worked as a university professor. His family, including the second respondents, have remained there ever since. John did not receive an inheritance. Throughout her lifetime, the deceased is said to have told John she would, ‘leave the [Buderim] property to your surviving children since half the property belongs to you’.

8. [8]
   The second respondents are both married with children. Anne is a librarian and Philip is an instructor at a community college. Anne did not wish to disclose particulars relating to her income, outgoings and liabilities and said Philip did not intend to file any material.

9. [9]
   They are represented by a solicitor and consent to this matter being decided on the papers.

Consideration

10. [10]
    The present application is intended to give effect to the agreement of the parties reached in February 2023 by way of a Deed of Settlement. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two-stage process is employed.^[1] First, the courts 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.^[2] 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.

11. [11]
    All parties with an interest under the will have been served with the proceedings. Only the second respondents elected to participate, and they have not filed any material in relation to the present application. While initial mediation was unsuccessful, in the end the parties agreed, as evidenced in a Deed of Settlement. The effect of the draft orders proposed would be that $330,000 is to be given to the applicant in replacement of his right to reside in the Buderim property. The costs of the first and second respondents are to be paid from the estate on an indemnity basis and the applicant will pay his own costs. Other bequests are to be undisturbed.

12. [12]
    The agreement of the parties represents a just resolution of the matter. In effect, the applicant is giving up his life interest in return for $330,000. On present estimates this represent about a fifth of the estate. The executor/respondent acknowledges this is a reasonable and fair compromise.

13. [13]
    For these reasons, I will make an order in the terms of the draft that has been provided.