Allan v Dobbins[2024] QDC 169

The estate

1. [6]
   The assets of the estate are almost entirely composed of real estate at Crystalbrook, a rural locality west of Proserpine in the Whitsunday region. Sugar cane production and grazing land are the dominant land uses in the locality. The real estate is situated at 2217 Crystalbrook Road and comprises Lot 54 (98.91 hectares) and Lot 55 (150.25 hectares) on SP220405, COT 50762878. The two adjoining freehold titles have a total land area of 249.16 hectares. A run down dwelling house is situated on Lot 55. Lots 54 and 55 have been valued respectively at $445,0000 and $765,000, totalling $1,225,050. Taking into account remaining assets and liabilities, the value of the estate is $1,131,966.01 before any legal fees payable from the estate.

The Will

1. [7]
   The testator’s will is dated 28 March 2019 (‘the Will’). Under the Will, Lot 54 is devised to David and Lot 55 is devised in equal shares to the respondents.
2. [8]
   There is a bequest of a tractor, dozer and hut on Lot 55 to David.

1. [9]
   There is a bequest of $50 each to the applicant and the testator’s other children, Rita, Heather and Beverly.
2. [10]
   The Will leaves the residue of the estate to be divided equally between David and Gayle.
3. [11]
   Clause 9 of the Will states:

I declare that I have not made a provision in my Will for my son NOEL CHARLES ALLAN to inherit any part of my property where my principal place of residence is located as adequate provision has been made for NOEL CHARLES ALLAN during my lifetime. Any further provision would see the beneficiaries named in paragraph 7(a) and (b) of my will to inherit my properties at 2217 Crystalbrook Road, Crystal Brook Queensland unfairly disadvantaged.

Statements of the testator regarding the applicant in previous wills

1. [12]
   The testator made no provision for the applicant in wills executed in 2001 and 2015. Both wills contained clauses in practically identical terms to the following effect:

I declare that I have not made a provision in this my Will for my son Noel Charles Allan because over a number of years, my late wife and I were in partnership with him and were involved in protracted legal proceedings with him to the extent that I believe he has received more than his fair share of my estate during my lifetime. Although my late wife and I were in partnership with my son for many years, it is my opinion that he did not contribute to the increase in value of my estate, but to the decrease in value.

The applicant’s financial position and needs

1. [13]
   The applicant is aged 68 and was aged 65 when the testator died. He has no dependants.

1. [14]
   In his affidavit sworn on 5 March 2021, the applicant deposed that:

1. (1)
   he was self-employed and operated an earthmoving business;
2. (2)
   “Ordinarily, the business profits somewhere in the vicinity of $80,000.00. However, because of COVID-19, the business ran at a loss last year. As such, I was forced to withdraw $10,000.00 from my superannuation to make ends meet, and I am still repaying the business’ debts now that things have picked up.”
3. (3)
   his sale of property to David for $351,000.00 in 2018 was necessitated by his need to meet obligations upon a property settlement with his ex-wife;
4. (4)
   he lives in a property owned by his stepson rent free in exchange for maintaining and caring for the property;
5. (5)
   he had net assets of $150,000.00 to $160,000.00 including $70,000.00 superannuation;
6. (6)
   he had monthly expenses of $1,170.00;
7. (7)
   he had recently been diagnosed with atrial fibrillation and accordingly receiving specialist treatment and medication with consequent expense;
8. (8)
   he has been diagnosed with sleep apnoea;
9. (9)
   he has possibly cancerous growths on his kidneys;
10. (10)
    he suffers from depression for which he is medicated.

1. [15]
   During evidence on 30 and 31 May 2023, the applicant testified:

1. (1)
   he has been receiving the aged pension since December 2022;
2. (2)
   he is able to live rent-free in the home he sold to his stepson indefinitely;
3. (3)
   his aged pension covers his living expenses;
4. (4)
   he could not produce any income tax returns, had not filed returns for the two prior financial years and did not recall the last time he filed one;
5. (5)
   he could not produce any invoices for work that he had done over the preceding 3 or 4 years;
6. (6)
   he had registered a new ABN on 14 December 2022;
7. (7)
   his business had not operated since 2022;
8. (8)
   he could not produce any family trust or company income tax returns;
9. (9)
   he had spent $25,000.00 from superannuation for medical expenses but could not produce any documentation re same;
10. (10)
    he had not included 7 head of cattle, a truck and a water allocation worth $14,000.00 in his list of assets;
11. (11)
    the whole of the net proceeds of the sale of property to David in 2018 went towards discharging his mortgage liability;
12. (12)
    the whole net proceeds of the sale of his home to his stepson went to his ex-wife;
13. (13)
    he did not provide documentation apart from the 2019 final property order providing for a 30/70 division of assets with his ex-wife to establish what he actually received from the property settlement with his ex-wife.

1. [16]
   In a report dated 26 May 2023, Dr Steven Lum detailed the applicant’s treatment for prostate cancer in November and December 2022 and stated:

It is common to experience tiredness, urinary urgency and dysuria in the months following this treatment. This could be quite problematic for Mr. Allan with his work as an excavator.

Mr Allan will require 6 monthly followup initially as part of a 10 year surveillance program. The outcome of his disease with this treatment is a likely 90 – 94% cure rate.

1. [17]
   I accept that the applicant was still suffering some residual effects from his treatment at the time of his evidence in late May 2023. I expect, based on the opinion of Dr Lun, that such effects would have since diminished such as to have no significant effect upon the applicant’s occupational abilities.

1. [18]
   Although there are aspects of the applicant’s evidence as to his asset position which are unsatisfactory, and he may have understated his assets to some extent, I do not conclude that militates in any significant way against his claim. I cannot conclude that the applicant has substantial assets over and above that disclosed by him, including in the course of cross-examination. I conclude that the applicant has modest assets only, valued in the vicinity of $150,000.00.
2. [19]
   The applicant’s evidence as to his past earnings and present and future earning capacity is more problematic.
3. [20]
   As noted above, the applicant failed to adduce any documentary evidence to confirm his income at the time of hearing or at any time before. The only documents the Court has touching on that matter are the cheque butts evidencing payments by the testator to the applicant for earthmoving and other services between 17 October 2008 and 1 February 2019. They do not assist in determining the applicant’s total business earnings in the years preceding and following the testator’s death so as to allow an assessment of the applicant’s earning capacity at the time of the testator’s death and subsequently.
4. [21]
   The applicant’s testimony on the subject was most unsatisfactory. When questioned as to his usual earnings in pre-COVID years, he vacillated during cross-examination and in re-examination between annual revenue of $100,000.00 producing a gross taxable income of $70,000.00 and annual revenue of $80,000.00 producing a gross taxable income of $45,000.00 to $50,000.00, all of which testimony is to be contrasted with his affidavit evidence of profits in the vicinity of $80,000.00.
5. [22]
   The respondents submit that these deficiencies in the applicant’s evidence are such as, for this reason alone, to require dismissal of the application. The respondents submit that the applicant did not “lead sufficient evidence of (his) financial situation”^[3], did not present “in at least broad outline, the whole picture” of his financial situation and did not “satisfactorily prove” the “crucial element of (his) financial situation (namely income and expenditure)”^[4]. To make an order without sufficient evidence of the applicant’s need would be to “do no more than act on speculation”^[5].

1. [23]
   I am not persuaded that, for such reason alone, the application should be dismissed. Given the applicant’s age, his limited assets, his diminishing capacity to undertake physical labour, the size of the estate and the comparatively better financial circumstances of the respondents, determination of the application turns not upon the deficiencies in the applicant’s evidence as to his financial need but on consideration of other factors.

The financial circumstances of the respondents

1. [24]
   I will not engage in any detailed consideration of the financial circumstances of the respondents. Despite some exploratory cross-examination of the respondents, the evidence as to their financial circumstances is largely uncontentious. I accept the submission of the applicant that each of the respondents is in a significantly superior financial position to that of the applicant, at least insofar as assets are concerned.

Relationship between the testator and the applicant

1. [25]
   As a child, the applicant, like his siblings, worked on the family farm. The applicant left school at 14 to work full-time on the farm. He did not receive a wage but was provided for. He entered into partnership with his parents in 1974 when he was aged 18.
2. [26]
   The applicant worked in partnership with his parents for 24 years until his parents dissolved the partnership in 1998. During that period of time, the applicant did not draw any significant wages but received the following from his parents:

1. (1)
   motor vehicles;
2. (2)
   holiday costs; and
3. (3)
   $185,000.00 from the sale of real estate by his parents in or about 1981, $85,000.00 of which was applied to the working capital of the partnership.

1. [27]
   The value of the receipt of $100,000.00 in or about 1981 can be illustrated by the real estate acquisitions the applicant was able to make as a consequence:

1. (1)
   a house in February 1983 for $16,000.00, sold in 2020 for $299,000.00 to his stepson;
2. (2)
   another house in March 1983 for $32,000.00, sold in 2009 for $265,000.00; and
3. (3)
   about 6 hectares of farmland in August 1983 for $8,500.00, sold in 2004 for $135,000.00.

1. [28]
   In 1998, the partnership was dissolved by the applicant’s parents. The applicant instituted Supreme Court litigation seeking an equal beneficial interest in the farm owned by his parents. The litigation was settled in 2000 with the applicant receiving a substantial part of the partnership’s plant and equipment and, in 2001, the testator transferring one-third of the farmland valued at $380,000.00 to the applicant. That land was sold to David for $351,000.00 in 2018.
2. [29]
   The nature of the relationship between the testator and the applicant upon the dissolution of the partnership can be discerned from the contents of the affidavit of the testator and Mrs Allan sworn on 17 December 1998 (the references to the “Defendant” are to the applicant):

1. 4.I, DAVID ALLAN say that on Monday 9 March, 1998 at about 9.30 a.m. I was on the land assisting 2 employees of Whitsunday Surveyors to carry out surveying work. We came across the Defendant standing near a post. A pump action shot gun was leaning against the post. I had a conversation with the Defendant and during the conversation the Defendant picked up the shot gun and said words to the effect “if you don’t get going I’ll shoot the three of you”. The employees of Whitsunday Surveyors and I immediately put the pegs and the equipment we were using into the utility in which we were driving and we let the area. I was frightened at the time about the Defendant’s threat. I reported the matter to my wife upon reaching our home and my wife and I now fear that if the Defendant is antagonised he may shoot us.

I reported the incident of the shot gun to the Police in Proserpine on 10 March, 1998 and I gave a statement to Constable J Carruthers of the Proserpine Police at that time.

1. 5.Since the shot gun incident we have locked the doors of our house at night and that is something that we have never done for the whole of our married lives and we do this as we fear that the Defendant may carry out his threat.
2. 6.The relationship between the Defendant and us has not been good for many years. On numerous occasions I, DAVID ALLAN have suggested to the Defendant how certain things should be done to manage the livestock however, when I have made any suggestions the Defendant has disagreed and we have not been able to have a rational discussion about how the livestock should be handled or about other matters concerning the conduct of the partnership business including what cattle should be kept and what cattle should be sold. On numerous occasions the Defendant has yelled at me and abused me whenever I have attempted to discuss livestock matters with him.
3. 7.The incident with the shot gun referred to in paragraph 4 hereof brought matters to a head between the partners.

…

1. 22.I DAVID ALLAN say that my health is not good. I suffer from high blood pressure and the medication I take for that is Coversyl and Tenormin and I also need to take a drug to help me to sleep at night. I AUDREY ALLAN say that my health is not good. I am an epileptic and the medication I take for that condition is Dilantin and I suffer from arthritis and take Naprosyn for the arthritis.
2. 23.The unhappy situation between us and the Defendant is causing us a lot of emotional stress and we need to have the matter resolved as quickly as possible in the interest of our health.

1. [30]
   I reject the submission by the applicant that I should not find that the shotgun incident occurred because of the rule in Jones v Dunkel^[6] and the failure of the respondents to call evidence from the surveyors who witnessed the events. I note the applicant’s partial admissions as to his presence with a shotgun on the relevant occasion. I consider it implausible, as contended by the applicant in his testimony, that he first became aware of such an allegation after the commencement of the family provision proceedings. I reject his denials. I am satisfied to the Briginshaw^[7] standard that the events were as deposed to by the testator.

1. [31]
   I am not satisfied that there is sufficient evidence to conclude to that standard that the applicant was responsible for acts of harassment of the testator and Mrs Allan from 1998 to 2000 involving blockages of the testator’s gates.
2. [32]
   The testator blamed the applicant and the partnership dispute for Mrs Allan’s death. The applicant was estranged from the testator from 1998 until 2007. Although living within one kilometre of each other on adjoining farms, they did not speak for about 10 years.
3. [33]
   The applicant deposes that by 2008 he and the testator “were on relatively good terms” and that he would drop in to see him most days and make sure he was OK. The applicant was the person who found the testator in distress following a stroke on 7 June 2019.
4. [34]
   The Court has no evidence other than that of the applicant as to the nature of his relationship with the testator between 2007 and the death of the testator in 2020. The Court does not have the testator’s side of the story in that regard.^[8] That said, there is some evidence that raises concerns as to one aspect of that relationship during such period.
5. [35]
   The applicant did not depose to providing any farming services to the testator during such period, either gratuitously or for reward. The topic only arose when the applicant was cross-examined on the contents of cheque butts evidencing payments by the testator to the applicant for farm work from 2008 to 2019. Those cheque butts show payments by the testator to the applicant for services including clearing regrowth in that period in an amount totalling more than $200,000.00. There are troubling aspects of the applicant’s testimony on this topic:

1. (1)
   The applicant charged the testator his usual commercial rates.
2. (2)
   The volume of work ostensibly carried out given the nature of the testator’s farming activities - the applicant gave evidence he acceded to the testator’s requests to carry out such work whether or not it may have been economical.
3. (3)
   The evasive and unconvincing evidence of the applicant as to which of the cheque butts contained his handwriting. I reject the applicant’s implicit submission that I should not reach my own conclusions as to disputed handwriting in the absence of expert evidence.^[9] I do not accept the evidence of the applicant denying writing on, or expressing doubt as to whether he wrote on, cheque butts numbered 404308, 606705, 404305, 404313, 589916, 589915, 988803, 958116, 875904, 958114, 809114, 875910, 958126, 288208, 875909, 288201, 875917, 106905, 106927, 288218, 000021, 000013, 172828, 172829, 000056, 000115, 000075, and 000119.
4. (4)
   The evidence suggests that two payments totalling $773.30 on 25 August 2016 by cheques 000118 and 000119 were for registration and repair of the applicant’s motorcycle and I reject the applicant’s evidence that cheque 000119 in the amount of $270 was, coincidentally as to date, rather for the repair of a piece of the testator’s farm equipment.

1. [36]
   The applicant’s false denials in his testimony on this topic suggest a consciousness of guilt of his financial exploitation of the testator. However, I am unable to reach such a conclusion to the Briginshaw standard on the evidence before me. The evidence at least suggests that the applicant may have benefitted, in carrying out his business, from the custom of the testator. At best for the applicant, the evidence is neutral. It certainly does not advance his claim. It serves to highlight that a court is not in as good a position as a competent testator to assess what provision is appropriate in light of all their dealings with a beneficiary. The testator would have been better placed than the Court to make judgments as to how any financial aspects of the relationship between the testator and the applicant during this period might affect a just assessment of the applicant’s claim upon the estate.

Evidence of discreditable conduct of the applicant towards the respondents and others

1. [37]
   The respondents contended that alleged discreditable conduct by the applicant towards Gayle and others following the testator’s hospitalisation on 7 June 2019 and his stroke on 11 June 2019 and the applicant’s alleged frustration of attempts by the respondents to sell estate property to service the testator’s nursing home debt should be taken into account in diminishing any claim of the applicant upon the estate. The applicant objected to the relevance of such evidence and I reserved my ruling on its admissibility. In the absence of evidence of knowledge of the testator of such alleged matters, I uphold the objection to the evidence.

Relationships between the testator and the respondents

1. [38]
   David rejected an assertion by the applicant that he had been estranged from the testator. There is no sufficient basis for finding to the contrary.
2. [39]
   All the respondents lived as children on the family farm and contributed by their labour, to varying degrees, to the farm work. Upon leaving home, their relationships with the testator and Mrs Allan continued in an unremarkable way. They each provided significant support to the testator during the trying period when the testator and Mrs Allan were involved in litigation with the applicant and following Mrs Allan’s death. Following Mrs Allan’s death, they would visit the testator and provide him with assistance as their own personal commitments permitted. Each continued to have a relationship with the testator upon his hospitalisation and facilitated his move to a nursing home.
3. [40]
   Gayle gave evidence she assisted the testator financially after the death of Mrs Allan. She acknowledged the benefit to her and her husband of a peppercorn lease and option to buy land from the testator between 1998 and 2003.
4. [41]
   David acknowledged the benefit to him of a peppercorn lease and option to buy land from the testator between 1998 and 2003.
5. [42]
   The respondents’ relationships with the testator were, in contrast to the relationship between the testator and the applicant, not marred by ill will or any period of estrangement.

Consideration

1. [43]
   I proceed on the basis the applicant, despite the deficiencies in his evidence, has established financial need. Financial need is only one aspect of the jurisdictional question of whether adequate provision has not been made for the applicant; it is not determinative.^[10] I proceed on the basis that the size of the estate and the competing needs of the respondents are not factors which militate against further provision for the applicant. Those circumstances, along with the demonstrable financial need of the applicant, are likewise not determinative of the jurisdictional question:

Section 41 does not give a court carte blanche to remake a will in a way that may appear to be more just. It is a power that should be exercised with the restraint dictated by the terms of the section. The predicament in which a court finds itself has been commented upon many times. In Pontifical Society for the Propagation of the Faith v Sales Dixon CJ observed that it was never intended by the legislation that “freedom of testamentary disposition should be so encroached upon that a testator’s decision expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court”. Consideration of these applications must always proceed with the understanding that the capacity of a court to make an assessment is necessarily limited, as the deceased cannot explain his or her reasons for the disposition of the estate or respond to the claims of an applicant.^[11]

(citations omitted)

1. [44]
   The limits of encroachment upon testamentary disposition in circumstances where a testator is often far better placed than the court to make a just assessment of all claims on their estate is well established by authority. I gratefully adopt the exposition of such authority by Horneman-Wren SC DCJ in T v R & Anor^[12].
2. [45]
   The decisive factor in the determination of this application is the nature of the totality of the relationship between the applicant and the testator, including:

1. (1)
   those contributions by the applicant towards the testator’s estate during his childhood and during the ensuing partnership until its dissolution;
2. (2)
   those benefits received by the applicant from the testator during the testator’s lifetime;
3. (3)
   the personal relationship between the applicant and the testator.

1. [46]
   The applicant submitted that the fact of his receipt of partnership assets in 2000 and farmland in 2001 should not be given any significant weight in the determination of the application:

The Applicant submits that these items do not constitute an inter vivos benefit of the nature to be taken into account by the Court because distributions following the resolution of the partnership dispute arose out of a partnership relationship, not a parent- child relationship. The parent - child relationship is a matter of correlation, not causation of the transfer of one-third of the partnership assets and 600 acres of land to him by the other partners (his parents).

1. [47]
   Such submissions do not sit comfortably with the following submissions also made by the applicant:

The Applicant contends that he was promised that he would inherit the farm and family business if he worked for his father… The Applicant submits that the Court should order provision for him on his Application because that would perfect the promise made by the testator that he would receive the farm and farm business if he worked for his father (and later the farming partnership).

1. [48]
   The applicant made detailed submissions in reply as to why the respondents’ reliance on Vigola v Bostin^[13] is misconceived.
2. [49]
   I do not accept the applicant’s submissions. The assets received by the applicant in 2000 and 2001 are clearly relevant to the determination of this application. Indeed, in all the circumstances of this case, the applicant’s receipt of such property is the decisive factor in the balance of all competing considerations.
3. [50]
   Considered objectively, the financial benefits gained by the applicant during his childhood and then partnership with his parents and upon settlement of litigation following the dissolution of the partnership were substantial. The applicant was, by the time of the transfer of real estate to him in 2001, at least adequately compensated for his contributions to the farming business. As compared to the respondents, the opportunities given to the applicant by his parents were to his significant financial advantage.^[14]

1. [51]
   The respondents do not rely upon Vigola v Bostin as an authority determinative of the application but by way of illustration of an application of settled principle in analogous circumstances. Its assistance in that way permits me to paraphrase Gleeson CJ^[15] in finding that the applicant was adequately compensated for his contribution to the family farming business and, indeed, advantaged by comparison to the respondents. Any earlier promise by the testator that the applicant would inherit the farm and family business was rendered of no consequence upon the applicant and his parents agreeing, at arm’s length, to dissolve their financial relationship.
2. [52]
   The Court is not, on the evidence, in a position to gainsay the view of the testator, expressed in his 2001 and 2015 wills, that the applicant had received “more than his fair share” of the estate during the testator’s lifetime and the view of the testator, as expressed in the Will, that adequate provision had been made for the applicant during the testator’s lifetime and that any further provision would unfairly disadvantage the respondents. I share those views upon my consideration of the evidence.
3. [53]
   As to whether the fact of monies paid by the testator to the applicant, ostensibly for services provided to the testator by the applicant, during 2008 to 2019 may have reinforced the testator’s views, only the testator could know.
4. [54]
   In considering a just disposition of his assets, the testator was not limited to a financial analysis of the competing claims of the applicant and the respondents upon his estate. Notwithstanding the subsequent rapprochement, the testator would have been entitled to regard the behaviour of the applicant following the dissolution of the partnership, in particular the shotgun incident of 9 March 1998 and the subsequent lengthy estrangement, as diminishing any moral claim the applicant had upon the estate. It is clear that the shotgun incident had a significant effect upon the testator and Mrs Allan. The testator believed that the applicant’s conduct, including his litigation against his parents, hastened Mrs Allan’s death.
5. [55]
   The application fails on the jurisdictional question. The applicant has failed to establish that the Will fails to make adequate provision for his proper maintenance and support.
6. [56]
   The application is dismissed.