Thompson v Cyati[2024] QDC 205

DISTRICT COURT OF QUEENSLAND

Table of Contents

Introduction and statement of issues

1. [1]
   Francis Thompson died on 8 July 2016. He was survived by his wife and his two daughters, the applicant and Ms Cyati. At the time of his death, real property in which he held an interest was variously held by himself alone, as a joint tenant with his wife and through a family trust. His wife also held real property solely in her name.
2. [2]
   He left a Will, which had been executed on 4 June 2013.^[1] Probate was granted on 28 February 2018. By that Will, Ms Cyati was appointed as the executor of the estate or alternatively his wife, if Ms Cyati should predecease him or decline to act. In these reasons, when I refer to Ms Cyati in her personal capacity, including as a beneficiary, I will refer to her by name. She will otherwise be referred to as “the respondent”.
3. [3]
   The deceased bequeathed the real property held as a joint tenant with his wife to her. He left the whole of his residuary estate to Ms Cyati and, if she failed to survive him for 30 days, to a family trust. The applicant was expressly excluded as benefitting under the Will or sharing any of the estate. Further, by its express terms the executor was directed to reclaim $196,700 from the applicant as monies previously loaned. No such direction was made in respect of monies previously loaned to Ms Cyati.
4. [4]
   On 5 April 2017, the applicant filed an application pursuant to s. 41 of the Succession Act 1981 (“the Act”) for provision from the estate. The application is contested. Evidence was received both orally and by way of affidavits.
5. [5]
   The two-stage test to be applied is well-known: whether the provision for the applicant was inadequate for his or her proper maintenance, education and advancement in life. Then, and only if that question is answered favourably to the applicant, what is the proper provision?^[2]
6. [6]
   In the context of that test, there are a number of issues to be determined in the circumstances of this matter. Under the first stage test, first, what is the nature of the test to be applied? Second, what is the appropriate date for that consideration?
7. [7]
   Thirdly, what was the size of the estate at the relevant time? The answer to that question requires consideration of the construction of a trust deed, an understanding of the status of the ownership of various real property and a consideration of how loans separately provided by the deceased to the applicant and the respondent are to be treated for the purposes of this determination.
8. [8]
   Fourthly, what was the applicant’s financial position at the time of the death? Fifthly, what was the nature of the relationship between the applicant and the deceased? Sixthly, what was Ms Cyati’s financial position at the time of death?
9. [9]
   If the applicant succeeds on the first stage test, there are also a number of issues to be determined. First, what is the current size of the estate? Second, what is the applicant’s current financial position, including her current and ongoing needs? Third, what is Ms Cyati’s current financial position, including her current and ongoing needs?

Chronology

10. [10]
    The factual allegations are convoluted. A brief chronology will assist in understanding some of the relevant facts and the history of these proceedings.

Index to affidavit material read on the hearing.

11. [11]
    Given the long history of this matter, and accordingly the large number of affidavits that were read on the hearing and which constituted the respective witnesses’ evidence-in-chief, it is helpful to provide an index of them to facilitate ease of reference in these reasons.

General Credit Findings

12. [12]
    Much turns on the assessment of the credibility and reliability of the applicant’s and the respondent’s evidence. For the reasons that follow, I accept that particular caution must be exercised before accepting the applicant’s evidence where it is in dispute and is not supported by independent evidence or compelling logic. On the other hand, there are also reasons to consider the respondent’s testimony with some circumspection, but that need is not so acutely raised in her case.
13. [13]
    It is clear that whatever relationship exists between these two sisters is not a healthy one. Indeed, but for these proceedings, and the broader conduct of associated litigation, I doubt there would be any real communication between them at all, and certainly none of any civility. There are two related examples from the hearing transcript that evidence the point.
14. [14]
    First, at the commencement of day two of the trial, I offered the respondent the opportunity to sit away from the Bar table given the at times obvious discomfort she felt sitting near her sister when the latter testified.^[8] Second, at the commencement of the respondent’s cross-examination, the applicant specifically requested that a lectern not be moved which was hindering the line of sight of the witness, and vice versa.^[9] While it is apparent from the transcript that the respondent agreed to the line of sight being obstructed, what is not apparent is the extent of her willingness.
15. [15]
    The obvious level of dislike by each of the other is itself a reason to approach the testimony of each with some circumspection, although the need is more acute in the case of the applicant.
16. [16]
    The applicant presented as a pugnacious witness who was prone to exaggeration. She self-reports as suffering physical and mental health ailments. Her presentation is consistent with both, and there is medical evidence that tends to support it in a general sense. She seemingly attributes the cause of the mental health related ailments to the conduct of her mother and the respondent towards her at various times, but particularly in 2006 and 2011,^[10] the conduct of the respondent in this litigation, as well as dealings with others, including her former husband, various lawyers, a body corporate with which she was in dispute, people whom she perceives have taken money from her and some apparently adverse experiences during periods of employment. She also suggested at times that she was overwhelmed by the whole process of the litigation. At one stage, she attributed her pugnacious responses to her ailments, and being “triggered” by some things said.^[11]
17. [17]
    In short, the applicant portrays herself as having been wronged, without fault on her part, in most, if not all, of her dealings. Experience shows that she could be right, but it is unlikely.
18. [18]
    On the other hand, there is a concrete example in the evidence of why, at least on this occasion, the applicant had a logical reason to believe her sister had wronged her. In cross-examination, Ms Cyati agreed she had provided a statement in which she stated, in relation to the failure of the applicant to achieve the loan in 2006, “… with my assistance the loans were pulled at the final stage.”^[12] Ms Cyati sought to explain that statement, but the point is that there is a basis for the applicant to rationally hold a belief of her sister’s involvement in something that was distressing to her.
19. [19]
    Nonetheless, there are many matters that give rise to a need for close consideration of the applicant’s evidence. For example, there are numerous instances where the applicant has not been transparent with disclosure of relevant material. In particular, I am satisfied that the applicant had not fully disclosed evidence of her financial position, at various times, in terms of the number and size of her superannuation accounts, her bank saving accounts, her income and the extent of her ownership of real property. Two examples will suffice.
20. [20]
    On 9 August 2019 the applicant filed an affidavit in these proceedings that, amongst other things, purported to set out her financial position at the date of her father’s death as required by an earlier order of the Court. It listed three bank accounts; a loan account, a credit card and a savings account. The savings account statement attached to the affidavit^[13] purportedly showed that the account was her own. That is not the case, as shown by another copy of the same statement.^[14] It is obvious that the copy attached to the affidavit had been altered to remove the fact it was a trustee account held in the applicant’s name for the benefit of her son. The applicant denied responsibility for altering the copy attached to the affidavit, essentially suggesting someone else must have altered it, that if she did it she did not recall doing so because she could not remember much of what happened in 2019 due to the stress she was under or that she just didn’t know how it came to be altered.^[15]
21. [21]
    While it should be acknowledged that the applicant elsewhere stated in evidence that there were other bank accounts she operated, which she said had little funds in them and which were not in various affidavits disclosing her financial position, her explanations why they were not disclosed were not convincing.
22. [22]
    However, I need not reach a concluded view about whether this was a deliberate attempt to mislead the Court as, on any view, she affirmed and caused to be filed an affidavit in curial proceedings that contained a material irregularity, and that alone detracts significantly from her credibility and reliability and means that care must be taken before accepting her evidence.
23. [23]
    That bank account, but not its details, had been disclosed in the applicant’s first affidavit, which was not filed until almost 14 months after the originating application was filed. A much more substantial asset had not. On or about 27 March 2014 the applicant purchased a unit in Toowong for $690,000. Even by the time of the hearing, the transfer of the title into her name had not been effected, for reasons that she asserted were not her fault. Be that as it may, the unit was not disclosed in the initial affidavit. The applicant blames her then solicitor for the oversight. Again, that explanation was not convincing, but I need not determine that issue either. The fact remains that she affirmed and caused to be filed an affidavit that was materially deficient about an obvious asset of substantial value.
24. [24]
    The applicant went to lengths to ensure that the Court was aware that she was, and had been for many years, suffering emotionally and psychologically. It was often proffered as an explanation for why there were difficulties with her memory of events, or deficiencies in filed material and disclosure. Although the only medical evidence placed before me to prove these assertions was in the form of general reports and other documents, usually produced for purposes other than these proceedings,^[16] it was not challenged and I am inclined to accept that she has been suffering as she asserts to some degree. However, most, if not all, of those reports were based on self-reporting. In the absence of cogent medical material attesting to the extent of the disability, I am hesitant to accept that it was to the degree she asserts. That emotional and psychological injury or incapacity may explain some of the discrepancies in and difficulties with the applicant’s evidence, but it does not excuse it. It actually provides a reason to be wary of any unsupported assertions she makes; that is, that in itself provides a need for scrutiny of her evidence.
25. [25]
    On the other hand, I found Ms Cyati to generally be internally consistent in her account.  A substantial attack was made on her credibility based on the accepted fact that she had drawn down on the estate funds while, it was said, this litigation was on foot. Given the history of the litigation and the timing of the drawdowns, I accept her evidence that, in effect, she had been advised that the litigation had come to an end by virtue of the guillotine-style order made by Koppenol DCJ.^[17] The undertaking to make any repayment required by this Court is the sort of response that would be expected if there had been an innocent error.
26. [26]
    That is not to say that I found her evidence to be completely without cause for some scrutiny. I earlier noted the obvious reciprocal dislike between these sisters. By way of another example, the respondent was cross-examined as to why she still used the applicant’s birth name of Narelle, rather than the name taken by deed poll prior to 1994 of Emma.^[18] In particular, she was cross-examined about the use of the name Narelle in a statement given to police concerning the incident on 8 April 2011.^[19] In it she referred to “my sister who I call Narelle”. I was left with the distinct impression that the use of the name Narelle was more than a mere difficulty in adjusting, as Ms Cyati testified. There had been more than enough time to adjust, and in terms of the statement to police, it was concerned with an incident of hostility between the two and the use of the name was likely to be an extension of that hostility knowing it would annoy the applicant. It is that mutual and obvious hostility that is the reason why the account of Ms Cyati (and indeed the applicant also) requires consideration before being accepted.

Was the provision for the applicant’s proper maintenance and support from the estate inadequate?

The test to be applied.

27. [27]
    The test to be applied is found in the words of s. 41 of the Act itself. However, there is considerable case law to assist in understanding the task those words impose. Whether the provision is adequate for proper maintenance requires a consideration of all circumstances, including “the applicant's financial position, the size and nature of the deceased's 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 his or her bounty.” ^[20] It is not merely a matter of looking to see if an applicant has enough resources to survive, whether comfortably or otherwise, all relevant considerations must be taken into account.^[21] Those circumstances necessarily include the freedom of the testator to dispose of the estate as they see fit. The Court will only intervene when the circumstances authorise it, in terms of the Act, and it is a proper occasion to do so.
28. [28]
    A mature applicant is not disqualified from seeking provision simply because they were not dependent on the testator at the time of his or her death, but it is a relevant consideration. The observation by Fullagar J in In re Sinnott,^[22] which was approved by Gibbs J, with whom Mason and Aickin JJ agreed, in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd^[23] is apposite:

“No special principle is to be applied in the case of an adult son. But the approach of the Court must be different. In the case of a widow or an infant child, the Court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act.”^[24]

What is the date at which the first stage question should be determined?

29. [29]
    The majority in Singer v Berghouse,^[25] stated that the jurisdictional question is one of “objective fact to be determined by the judge at the date of hearing”. In most cases the hearing will be reasonably proximate to the date of death, and the opportunity for the applicant’s circumstances or the estate’s position to have significantly changed will be limited. This is not such a case, and the identification of the point in time at which the assessment is to be considered assumes importance.
30. [30]
    For the reasons that follow, I accept the respondent’s submission that the issue is to be considered as at the date of death.
31. [31]
    First, the very next paragraph in Singer v Berghouse suggests that the emphasis in the quoted passage was on the objectivity of the assessment and not on the timing of it. Notably, delay was not an issue of any significance in those proceedings.
32. [32]
    Second, a majority in Coates v National Trustees Executors and Agency Co Ltd^[26] considered that the appropriate point in time was the death of the testator, although regard needed to be had to reasonably foreseeable events.
33. [33]
    Thirdly, in Coates Dixon CJ observed that the then long held position in this State was that it was calculated as at the date of death.^[27]
34. [34]
    Fourthly, in a later clear statement of principle, Dixon CJ in Blore v Lang^[28] observed that the assessment is when the testator died. While Dixon CJ was in the minority and the other members of the Court did not expressly join in that part of his judgment, it is clear that was the basis of their reasoning. That statement and another more recent one to the same effect from the Victorian Supreme Court were recently adopted by Ryan J in Niebour-Pott & Anor v Pott.^[29]
35. [35]
    Fifthly, this is the position taken in some interstate decisions where delay in making the application has been significant.^[30]

What was the size of the estate at the time of the deceased’s death?

36. [36]
    The respondent’s affidavit filed 28 August 2023 attests to the value of the estate at the time of death as being $1,129,178.85. This calculation excludes three pieces of real estate but includes, as assets, the value of the loans to the applicant including interest to the date of the Will, and to Ms Cyati. The applicant takes issue with the calculation of the value of the estate. In essence she argues that all real estate should be included as part of the estate and the loans should be excluded.

What real estate should be included in the deceased’s estate?

37. [37]
    There are three pieces of real estate the subject of dispute, all in the same street in Kelvin Grove. I will refer to them by their street numbers only.
38. [38]
    Number 9 was held under a joint tenancy between the deceased and his wife. Under the rule of survivorship, the whole of the title is held by the wife on the passing of the deceased. The gift under the Will was unnecessary, as the rule operates regardless of such a gift. This property does not form part of the deceased’s estate, and in any event the applicant originally sought to have that exonerated from the burden of any order from these proceedings.^[31]
39. [39]
    The title to the property numbered 14-16 was solely in the name of the deceased’s wife. It therefore does not form part of the estate.
40. [40]
    Further, the applicant has affirmed that she was seeking provision based on the value of the property at number 18 and the residuary of the estate.^[32] Her later submissions cannot be maintained.
41. [41]
    The title to the property at number 18 was in the name of the family trust. The applicant relies on legal advice received, the terms of which were in evidence^[33] and the effect of which was that it may be that by the terms of the Trust Deed and by the operation of ss. 33E and 33J of the Act, this property formed part of the estate.
42. [42]
    I do not accept that is the case. Section 33E is concerned with property that is disposed of by the Will. There is no express provision in the Will concerning this property, although I accept that its applicability may depend on the operation of s. 33J and whether this property forms part of the residuary of the estate.
43. [43]
    More cogently, s. 33J applies where a testator disposes of property under the Will in respect of which he or she has “a general power of appointment exercisable by will”. It is argued that the property here is the real property at number 18. Presumably it would also apply to all property held by the Trust, although there is no evidence before me as to the extent and value of that other property, if any.
44. [44]
    In any event, the Trust Deed, in its original form, arguably provides a general power of appointment at clauses 9.2 and 9.3. However, the variation of the Trust Deed on 5 March 2015 has the effect of there being two trustees, the deceased and Ms Cyati. The varied deed also requires, at clause 9.3(iv), that the decisions of the trustees be made “jointly by majority decision”. Whatever that wording was intended to reflect where there are two trustees, the deceased could not, immediately prior to his death, make a unilateral decision. Hence, he did not have a general power of appointment. Any power he had to appoint had to be exercised together with Ms Cyati. It is, I think, telling that the advice does not recognise the variation of the Trust Deed. The absence of a general power of appointment results in the submission being rejected.
45. [45]
    As a general observation, it is significant that the advice referred to it being “arguable” that this property is included in the estate. It further acknowledges contrary arguments and suggests the involvement of Counsel experienced in estate law. It cannot be said to have been proffered confidently. That is not in itself a reason to not accept the submission in the reliance on the advice, but it does speak to its persuasiveness.
46. [46]
    The applicant also made an overarching submission to the effect that the deceased disliked paying taxes and other government fees and that the ownership structure of the various properties was just a means of reducing his exposure to those imposts. In other words, the properties were in reality owned by him and should be considered to be part of his estate. Whatever the reason for the ownership structure, it may have had the effect of reducing the deceased’s exposure to financial impost, but it was a legitimate, and common, means of doing so. It does not change the fact that none of the properties formed part of his estate.
47. [47]
    Given that conclusion, I need not consider the respondent’s other submissions on this topic.
48. [48]
    Accordingly, the respondent was correct to not include any of those properties in the assessment of the value of the estate.

How should the loans to both the applicant and Ms Cyati be treated?

49. [49]
    Ms Cyati, and her then husband, were the recipients of a $200,000 loan from the deceased in what must have been late 2002. It was interest free. Records have been produced showing $75,000 was repaid between 2003 and 2009. She acknowledges that $125,000 was unpaid at the time of the deceased’s death.^[34]
50. [50]
    The respondent has attested to the applicant receiving loans totalling $175,050 from the deceased in the 2008 calendar year. They were interest bearing and that has been calculated as amounting to $21,650, to the date of the execution of the Will. That amounts accords with the amount which is the subject of the specific direction in the Will.^[35]
51. [51]
    The applicant, in her affidavit, acknowledges borrowing a total of $140,000, exclusive of interest, for the purposes of engaging legal representation in her family law proceedings.^[36] Put shortly, she puts the amount borrowed, and therefore the amount of interest that accrued, in issue. She testified that those loans were paid directly to her solicitor.
52. [52]
    Part of exhibit 16 comprises a series of documents each entitled “Loan Agreement” that appear to record the making of the loans, as well as some receipts from the applicant’s then solicitor. Once allowance is made for some duplication in the documents, they record a total of $175,050 loaned, although one dated 27 March 2008 for an amount of $5,050 was signed by the deceased but not the applicant. Nonetheless it is in the same form as the other agreements and has been signed by the lender. The applicant testified that her father liked keeping records, and so it is unlikely that he would sign such a document if the loan had not been given.  I accept that the loans totalled $175,050. There has been no challenge to the interest calculation based on that quantum of monies loaned.
53. [53]
    Both parties contend that the limitation period has expired on both loans, and so the debts are unenforceable, and were unenforceable at the time of death. The applicant was very clear in her position.^[37] It is jointly submitted therefore that the debts do not amount to an asset of the estate.
54. [54]
    It is arguable that the affidavits referring to the loans have had the effect of recommencing the limitation period.^[38] However, in circumstances where substantial loans had been made to both sisters, where both parties have conducted the litigation on the basis that the debts are unenforceable, and particularly where one of them is not legally represented, I will proceed on the basis they each contend. Accordingly, the outstanding amounts owed should not be considered to be part of the estate for present purposes. Other submissions by the respondent as to why they should not be included in the assessment of the estate need not be considered.

Conclusion

55. [55]
    On the basis of the above conclusions, I find that the value of the estate at the time of death was about $807,500.

What was the applicant’s financial position at the time of the death?

The value of the applicant’s real properties at the date of death.

56. [56]
    There are two real properties that were owned by the applicant at the time of death, namely the former marital property at Hawthorne and the unit in Toowong. There is no evidence of any precise valuation of them at the time of death, and so some assumptions must be made to deduce the approximate value of each.
57. [57]
    The best evidence of the value of the Hawthorne property is the amended site valuation issued by Brisbane City Council, namely $2,800,000 as at 1 October 2016.^[39] It is not expressed whether that takes into account the value of any dwelling on the property, but would not usually do so. The applicant testified that the dwelling was unfinished and needed much work. However, while she described it as a “construction site”, she did live in it for periods of time and sometimes allowed others to live there. It was sold by the mortgagee in possession in December 2020 for $2,790,000. She considered that to be a low price, which she attributed to its state of disrepair.^[40]
58. [58]
    Allowing for the notorious fact that there was probably some appreciation in value between the date of death and the sale and that there was some work to be done which would have lowered the value of the property, I consider it reasonable to attribute a value of $2,800,000 for this property at the date of death. As at the date of death, the mortgage held against this property was $1,588,589.39,^[41] leaving the applicant with about $1,211,000 in equity. She had not made any repayments under the mortgage since March 2015.^[42]
59. [59]
    The Toowong property was purchased in March 2014 for $690,000. It was purchased by drawing down funds on the mortgage held over the Hawthorne property.^[43] Accordingly there was no mortgage held over it.
60. [60]
    The purchase was a little over two years prior to the date of death. There is no evidence of a more contemporaneous valuation. Although it might be that it had appreciated in value over that time, I cannot with any confidence assess by how much. It is reasonable to attribute a value of $690,000 to this property.

The value of the applicant’s superannuation accounts at the date of death.

61. [61]
    The state of the evidence as to the number of superannuation accounts held by the applicant, and the value of them, was very unsatisfactory. In the applicant’s first affidavit, she attests to having a single superannuation account with “Kinetic Super” which had a balance of $3,651.79 as at 30 June 2017.^[44] In an affidavit filed in the course of the hearing, she attached a printout from the Australian Taxation Office referring to a single account in her name with Virgin Money Super which had a balance of $77,571.32 as at 30 June 2023.^[45] The applicant is unable to account for the change of name of the account trustee and, in effect, testified that she assumed the ATO printout represented the totality of her superannuation holdings and suggested the account had either been taken over, or a number of accounts might have merged together. The difference in the balances deserves some consideration.
62. [62]
    The applicant testified that she had been effectively unemployed since 2013, apart from short periods of occasional and casual employment,^[46] and had been totally unemployed since February 2022.^[47] The details of that employment are imprecise. She was employed at Bunnings for, she thought, about 2 months in 2013 or 2014. Given that timeframe, it cannot affect the present consideration. Similarly, she testified to being employed in Western Australia in 2012.^[48] It too is irrelevant for present purposes.
63. [63]
    According to her oral testimony, in what may have been 2014 she was employed in the Queensland Education Department on a salary of about $95,000 per annum. That employment lasted about 18 months.^[49] Allowing for the usual rates of employer contribution for public service employees, the contribution to the superannuation account must have been somewhere in the order of $15,000. However, her affidavit evidence spoke of being employed by Education Queensland in 2009. Neither version accounted for the meagre amount held in the Kinetic Super account in June 2017, suggesting at least one other account was held. 
64. [64]
    In early 2017 she was employed in Townsville, but the position was terminated after about one month.^[50] She seems to have been paid something in the order of $6,400 to $8,000 per month,^[51] which would be consistent with her testimony that the job paid about $150,000 per annum.^[52] Given the short period of employment, there would have likely been relatively little superannuation contribution.
65. [65]
    The only other mention of employment is occasional engagement with the Electoral Commission. There is no satisfactory evidence quantifying the income, although it was clearly not substantial, and was only sporadic.
66. [66]
    There is no other paid employment and no other wages mentioned in the evidence, although there is mention of a Centrelink benefit of no more than $14,700 per annum. It would not result in superannuation contributions. There is no suggestion of any voluntary contributions. Based on the above observations, I do not accept that the state of affairs concerning the applicant’s superannuation was accurately stated in her first affidavit. Based on those calculations, assuming that the Virgin Money Super account is the result of a merging of accounts and working back from the last reported balance in that account while allowing for accumulation of value by way of interest, I consider that she must have had a superannuation balance of at least $55,000 at the time of her father’s death.

The applicant’s bank accounts at the date of death.

67. [67]
    The evidence of the applicant’s bank accounts is also unsatisfactory. There was only one savings account initially disclosed by the applicant.^[53] This is the same account as is discussed at paragraph 20 herein. At the date of her father’s death, it had a balance of $573.75.^[54] As an aside, it shows receipt of Newstart allowance at the rate of $566.50 per fortnight, resulting in the above observation of receipt of benefits of about $14,700 per annum, although later entries show that sum was sometimes decreased. These benefits were received into that account even though it was her son’s account that she held as trustee.
68. [68]
    The applicant was cross-examined about three other savings accounts, two of which were held by her as trustee for her daughter. Those two accounts had balances of $3,636.96 and $5.02 respectively at the date of death.^[55] The third account was in the applicant’s own name, and had a balance of $0.73 as at the date of death.^[56] A perusal of the respective statements shows that all three were being used by her as her own accounts.
69. [69]
    The applicant disclosed that she held two credit cards.^[57] There was no evidence as to when they were obtained nor, if they were obtained prior to the date of death, their respective balances at that time. Additionally, she was cross-examined about another credit card in her name. This had a balance owing of $1,961.73 as at 15 June 2016.^[58]
70. [70]
    Although I cannot be satisfied that there are no other savings accounts or other accounts holding assets for the benefit of the applicant, I will proceed on the basis that she held cash to the value of about $4,200 and had a credit card debt of about $2,000 as at the date of death; a nett value of about $2,200 in cash holdings.
71. [71]
    Further, the applicant’s testimony as to effectively being unemployed since 2013 has been noted above. It seems that shortly after she purchased the Toowong property she became involved in disputes with the body corporate. These disputes led to various instances of litigation,^[59] resulting in her paying about $35,000 in 2019 in respect of litigation concerning the body corporate.^[60] This was at a time when she said she was effectively unemployed, and was also prior to the sale of the Hawthorne property. Her access to this sum of money is unexplained on the evidence and, although she was not questioned about it, it adds to my sense that she had access to other funds that have not been disclosed, either before or after the deceased’s date of death.

The applicant’s miscellaneous assets and liabilities at the date of death.

72. [72]
    It is common ground that the applicant owned a car valued at about $5,000.
73. [73]
    There was some evidence of the applicant’s ownership of shares but it was vague and the impression was that they were of relatively little value.
74. [74]
    In 2005 or 2006 the applicant says that she gave $100,000 to a person for safekeeping, but that person used it for his own purposes. She commenced proceedings for recovery of that sum in 2012, and those proceedings were ongoing as at the date of death. The Magistrate “dismissed the proceeding” in November 2023.^[61] While it may be open to consider this an asset at the date of death, to do so would require a consequential amendment when considering the value of the applicant’s financial position at the date of hearing. I will not take it into account at either stage, and the respondent has not submitted that it should be precisely taken into account in a financial assessment of the applicant’s position. It remains relevant however that it was not disclosed pre-hearing and emerged in cross-examination.
75. [75]
    The applicant attested to owing a little under $2,500 in council rates as at May 2018,^[62] but there is no evidence of any debt at the date of death.
76. [76]
    There is evidence that the applicant had not prepared her 2017-2018 tax return, and owed the ATO a little over $13,000.^[63] This may suggest other income not otherwise accounted for. The applicant attributes that debt to the short period she was working in Townsville in early 2017.^[64] Regardless, there is no evidence produced to substantiate any tax debt as at the date of death and, according to the applicant, it was not then owing. I do not include it in this assessment.
77. [77]
    She also testified to owing money on a HELP loan study debt as at May 2018. As at the date of death, that debt was $22,950.^[65]

Conclusion

78. [78]
    Based on the above evidence, I am satisfied that the applicant had nett assets valued at a minimum of about $1,940,000 at the date of death. It should be noted that very little of that was liquid assets, and she received meagre benefits of no more than about $14,700 per annum.
79. [79]
    It would however be overly simplistic to simply consider that the applicant’s financial position at the date of death is represented by a calculation of her nett assets. In addition, she had the benefit of a loan of almost $200,000, plus interest, which was not repaid, and which funded her family law proceedings.
80. [80]
    While there is evidence that the applicant attempted unsuccessfully to tenant the Hawthorne property at one stage, there is also evidence that she allowed a friend to live there rent free while the friend looked after the applicant’s dog in 2012.^[66] There is no evidence of an organised effort to rent either of the properties she owned, and she moved between the two at different times. It was open to her to rent, or sell, one or both.
81. [81]
    The applicant testified that she did try to sell the Hawthorne property for about 10 years, at various times and through various agents.^[67] The highest offer received was for $2,525,000 in late 2017.^[68] She did not accept it. In my view, that she did not meet the market for the house speaks to her perception of her level of financial comfort, including as at the date of death, regardless of other reasons she gave in evidence.

What was the nature of the relationship between the applicant and the deceased?

82. [82]
    There is no absolute right to benefit from a parent’s estate, nor is there any absolute right to share in the estate on an equal footing with a sibling. The testator’s freedom of election must be recognised and given the weight appropriate in the circumstances.^[69] As observed earlier, the assessment of the adequacy of the provision will take into account, amongst other things, the nature of the relationship between the applicant and the deceased, and any beneficiary and the deceased. Evidence of any statement by the deceased concerning the nature of that relationship will bear upon this assessment of this issue, and may reveal the motivation for his testamentary intention.
83. [83]
    The strained relationship between the applicant and her family seems to have commenced well before the deceased’s death, but it further deteriorated when her mother did not obtain a loan for the purchase of the Norman Park unit in 2006. It is unnecessary for me to make any findings about the extent of any involvement Ms Cyati had in the failure of the bank to loan the sum sought. It is sufficient to note that her evidence, which I accept, was to the effect that their father wanted her to take their mother to the bank to “find out what was going on”.^[70] Other evidence, including that of the applicant, indicates that the deceased had no involvement in any agreement between the applicant and her mother to obtain a loan to complete the sale. Notably, the deceased did not loan the applicant any money to avoid her becoming involved in litigation, and seemingly maintained that position when the phone message was received in November 2012 (to be discussed later). Notably, Ms Cyati and her then husband had already been loaned a significant amount of money. I find that the mere fact that the mother did not obtain that loan caused the applicant further angst. The incident itself casts some light on the nature of the applicant’s relationship with her father, at that time.
84. [84]
    In my view, it is telling that the deceased then required the applicant to enter into written agreements concerning the various loans in 2008, and elected to charge her interest, but not her sister when a higher amount had been lent to her sister and her then husband. That in itself speaks, to some degree, of the nature of his relationship with the applicant when compared with Ms Cyati, at that time.
85. [85]
    On an unknown date in 2009, the Hawthorne property was transferred into the applicant’s sole name. While it is not precisely known if that occurred before the date of the Will in 2009, given the protracted nature of the family law proceedings it can be assumed that it had been mooted for some time.
86. [86]
    It is against that backdrop that the deceased executed the 2009 Will, which specifically excluded the applicant as a beneficiary of the estate, and which required the trustee of the estate to recoup the $196,700 lent to her, and interest thereon. This was after the loans were due for repayment, and no payments had been made.
87. [87]
    Then, in 2010, the deceased had a solicitor send what was in effect a letter of demand for the repayment of the loans. In oral testimony, the applicant sought to attribute the sending of the letter to Ms Cyati.^[71] I do not accept that is the case for the following reasons.
88. [88]
    The applicant attested, in an affidavit,^[72] to an amicable conversation with the deceased wherein an arrangement was made to repay the debt after the sale of the Hawthorne property. There is no suggestion in that affidavit that her father was not responsible for the solicitor’s letter being sent. In her oral testimony applicant’s account changed from a belief that Ms Cyati had caused the letter to be sent,^[73] to a clear, albeit implicit, acceptance that he had been responsible for it.^[74] The different amount mentioned in that letter is curious, but I am satisfied that the deceased caused it to be sent. There is no direct evidence it was not.
89. [89]
    While the applicant’s account of an amicable conversation with her father after receiving the letter was consistent with her affidavit, when delivered it smacked of a fabrication. Importantly, it is inconsistent with both the contents of a message left by the applicant on her parent’s telephone, which is clear evidence of an, at best, strained relationship between her and both her parents and her sister,^[75] and also with the terms of the Will signed in 2013 which, again, excluded her as a beneficiary and sought repayment of the debt with interest.
90. [90]
    I have also considered whether there is anything to be drawn from the fact that, although she in effect asserted that her father was happy to let things continue without payment until the sale of the Hawthorne property, no part of the debt was repaid to the estate on the sale of that property. I do however note that she testified that she did not receive any monies from the sale of that property.^[76] There is no evidence to contradict the assertion and, although it needs to be treated with caution, it is not necessarily implausible. As at 21 June 2019, the mortgage was about $1,926,000,^[77] with interest charging at in excess of $8,500 per month, and rising. When one takes into account the rising interest and the costs levied against the sale price of about $2,790,000 17 months later,^[78] it may be that she received no funds. In any event, any surplus from the sale would presumably have been paid to her bankruptcy trustee. As such, that circumstances does not factor in my conclsuions.
91. [91]
    Her account that her father was happy to let things continue as they had been is also inconsistent with the Statutory Declaration signed 30 May 2016, part of exhibit 16.
92. [92]
    The provenance of exhibit 16 was not fully explained, it merely being said that it came into Ms Cyati’s possession as the executor of the estate.^[79] There is no detail as to where and in what circumstances it was located and there are some curious features about the exhibit as a whole. The statutory declaration refers to a number of attachments which are not part of the exhibit, it refers at paragraph 29 to a loan amount which is inconsistent with all other evidence, it also refers to the applicant having been removed as a beneficiary of the Family Trust which is not, on the evidence before me, correct,^[80] and the applicant is predominantly called “Narelle” in the document. Included in the exhibit is what appears to be an affidavit exhibit coversheet bearing the marking “BJB1”. It is entirely unclear what that refers to. The remainder of the exhibit adds little, if anything, to the evidence otherwise before me.
93. [93]
    The applicant asserts that the statutory declaration was “absolutely 100 per cent” created by Ms Cyati, predominantly relying on the use of the name Narelle in it. She also asserted that the signature on it was “so different to my father’s signature, it’s a joke”.^[81]
94. [94]
    The applicant testified that her father called her “Emma”, while her sister testified in effect that he referred to her as Narelle when she was not there. There is no independent evidence on the topic. The predominant use of “Narelle” in the document does not point in one way or the other in terms of the authenticity of the document.
95. [95]
    I am entitled to undertake my own comparison of disputed handwriting, and act on my conclusion.^[82] I am satisfied that the declarant’s signature on the statutory declaration is that of the deceased, based on a comparison with other documents in evidence where authorship is not in dispute. While it may be accepted that there are some minor variations, human experience is that signatures are rarely identical each time and allowance should also be made for the testator’s obviously declining state of health likely affecting his fine motor skills to some degree.
96. [96]
    While I accept that the statutory declaration was signed by the deceased, the curious aspects of it referred to in paragraph 92 above means that some care needs to be taken in determining what reliance should be placed on it.
97. [97]
    I accept that it provides evidence of his intention as at the date of its execution. That is supported by, and consistent with, the clear statements in both the 2009 and the 2013 Wills, the reason for which can be gleaned from the factual analysis in these reasons. It is evidence of his intention at a time relatively close to his date of death.
98. [98]
    I however place less weight on the recitation of individual events in it, where they are not supported by other evidence, given the possibility of he deceased being confused about some matters given his apparently declining health. 

Conclusion

99. [99]
    The applicant had, at best, a strained relationship with the deceased, her mother and her sister for many years prior to the date of death. It is probably best described as having devolved to the point of her being effectively estranged from them after the incident involving her daughter in 2011, if not before. Her own phone message left on her parent’s phone is compelling evidence of this, as at November 2012.
100. [100]
     I do not discount the possibility that she had in fact made contact with her father, whether in early 2014 or some other time more proximate to his death, and continued contact with him to some degree without the knowledge of her sister. As much is consistent with paragraph 9 of the statutory declaration that refers to estrangement “until just recently”. However, whatever the nature of that contact, it did not alter the deceased’s intention concerning her ineligibility to share in his estate, expressed consistently since 1 October 2009.
101. [101]
     I find that the applicant had not re-established a good relationship with her father, as she in effect testified. Had she done so, it is likely that the deceased would have made a new Will, rather than reinforcing his intentions in the statutory declaration made as late as May 2016, or at least not been driven to make the statutory declaration at all.
102. [102]
     Notably, the applicant’s account had others placed to observe what she asserted was the later warm nature of the relationship between them. That she did not call any of those witnesses suggests that they could not have advanced her case.
103. [103]
     Consequently, I am satisfied that the terms of the Will expressed the deceased’s intention at the date of his death, which in turn reflected the nature of their relationship.
104. [104]
     In reaching this conclusion I have not lost sight of the fact that the amendment of the family Trust Deed in 2015 did not exclude the applicant as a secondary beneficiary of the trust. There may be many reasons for this, including a mistaken belief she had been excluded as mentioned in the statutory declaration, or an intention to leave the distribution to the discretion of Ms Cyati as trustee. I need not make any finding in that regard.
105. [105]
     I am not persuaded that keeping the applicant as a beneficiary under the family trust affects the findings I have already made. Further, the addition of Ms Cyati as a trustee, and not the applicant, is consistent with what I have found as to the comparative nature of the deceased’s relationships with his two daughters at that time, which was roughly 12 months after the applicant asserts she had mended the relationship with her father.
106. [106]
     In contrast to the, at best, strained relationship between the applicant and her father, it is clear on the whole of the evidence that Ms Cyati was a consistent and supportive presence to both her parents over a long period of time. It is, in my view, unsurprising that the deceased would be favourably disposed to Ms Cyati in his Will, and not to the applicant.

What was Ms Cyati’s financial position at the time of the death?

107. [107]
     At the time of her father’s passing, Ms Cyati had separated from her husband and was the sole care giver for their two children aged 19 and 11 years old. She was living in the former marital home, but she did not have regular employment. She had very little in the way of savings.^[83] While there was some cross-examination touching on her financial position at the time of their father’s death, it did not materially affect the affidavit evidence.
108. [108]
     Ms Cyati’s financial position was far more strained than the applicant’s position at the same time, and she had a much healthier and caring relationship with her father than the applicant did.

Conclusion

109. [109]
     At the time of her father’s death, the applicant was a mature woman who, although having obtained a substantial loan from him some eight years earlier for specific family law litigation, was not dependent on him for day-to-day living. There had been, at best, a strained relationship between the two for a number of years. Her father had consistently indicated an intention for a number of years that she should not benefit from the residuary of his estate.
110. [110]
     In circumstances where the financial position of the applicant was, in terms of overall assets, notably more than double that of the estate, where the applicant’s financial position was a little under $2 million and so was considerable in its own right, where the applicant at the time of death had a capacity to work notwithstanding she was at that time seemingly only working sporadically, where she had previously been loaned a little under $200,000 by the deceased of which no principal nor interest was repaid, and where there had been a long period of estrangement between her and the deceased which relationship had not been effectively repaired at the time of death, I find that there was no requirement for any provision from the estate for the applicant. In other words, the lack of any provision at all for the applicant did not result in an inadequate provision in all the circumstances.
111. [111]
     In reaching that conclusion I recognise that the applicant had not paid any mortgage repayments on the Hawthorne property for a little over a year and did not have access to large cash deposits or have a good cash flow or income stream. Further, in the phone message of November 2012, she obliquely referred to some difficulty with a unit which, on the evidence, could only have been a reference to the Norman Park unit at that time. It is therefore likely to be a reference to a financial difficulty. However, she had an asset that she could have liquidated, but chose not to, apparently because the offer was less than she considered it worth. She had the ability to relieve that financial pressure, but chose not to.
112. [112]
     The applicant submits that the actions of Ms Cyati and their mother in 2006 and 2008, the applicant’s promise to her father not to commence legal actions against her mother from those incidents and the inability to work as a result of those actions created a “moral obligation” for the deceased to provide for her under the Will. I do not agree.
113. [113]
     On the applicant’s evidence, she bid for the Norman Park unit because of a commitment given by her estranged husband, on which he then reneged. She then enlisted her mother, but the loan was not completed because, on the only evidence touching on this point, the bank manager was not satisfied her mother understood the ramifications of the loan, nor had the capacity to honour the commitment. That is, there was no fault on the part of the mother, or her sister.
114. [114]
     Whatever fault there may have been on the part of the mother and Ms Cyati in 2011, and I make no specific finding as to that, I consider that the whole episode was evidence of the nature of the relationship at that time between the applicant on the one hand and the deceased, his wife and Ms Cyati on the other.
115. [115]
     Again, any promised forbearance by the applicant to not commence legal proceedings in 2006 or 2011 was of no real moment, if it occurred. In each instance, these events did not create a moral obligation on the deceased to make a provision for the applicant; they were part of the reason the deceased intended there be no such provision. It follows that any actual or perceived inability to work as a result of these events cannot have created a moral obligation imposed on the deceased.
116. [116]
     In any event, while it can be accepted that each of these events were distressing to the applicant, it is not clear that they caused an inability to work. In fact, the applicant was employed at different times, and in well-paid positions and has also completed studies for a Bachelor of Laws and continues with a PhD. She presents as an intelligent woman, although I accept that her pugnacious presentation and demeanour may create practical difficulties in many lines of employment. Further, the applicant attributed much of her asserted inability to work to the litigation involving the body corporate and her Toowong unit. This litigation did not create any moral obligation on the deceased.
117. [117]
     I earlier referred to the fact that there is no absolute right to provision from an estate, to an equal provision as amongst siblings. I have also referred earlier to the obvious animosity that exists between these two siblings. I have been left in no doubt that the proceedings were not commenced because the applicant considered that adequate provision had not been made for her under the Will, as that concept is properly understood, but because she had been left nothing and her sister the whole of the residuary. I accept the respondent’s submission to the effect that the applicant perceived that was unfair on the basis of some expected entitlement, and she used the proceedings to avenge some perceived wrongs against her sister. There are some obvious examples in the evidence,^[84] but there were many instances in the course of the hearing where the applicant’s conduct and demeanour reinforced this view. I conclude that the application was brought for that purpose.
118. [118]
     For those reasons, the application must be refused.

If the applicant had satisfied the first stage test, what provision should now be made?

119. [119]
     Should I be wrong about my conclusion as to the first stage test, I will, as is customary, outline what provision I would have ordered had the applicant not failed on the jurisdictional question. There are difficulties in undertaking this exercise given that it may be that the provision would differ depending on the basis on which I erred, but I proceed on the basis that any error will not affect this assessment.

What is the current size of the estate?

120. [120]
     I accept that the estate bank account has funds totalling $263,957.22 as at the date of the hearing.^[85] I accept that the size of the estate has been substantially depleted by the ongoing conduct of this, and related, litigation.^[86] That figure does not allow for the further costs incurred by the estate concerning the conduct of this hearing.
121. [121]
     There was some attempt in cross-examination to cast doubt upon the propriety of at least some of the disbursements, but in my view it did not affect the position. Those funds also do not include the loans to the two daughters. Given the manner in which I treated them earlier – effectively as unrecoverable payments made during the life of the testator – it is appropriate they also not be included for these purposes either.
122. [122]
     Those funds also do not include the interim disbursements to Ms Cyati. I have earlier accepted that the disbursements were reasonable given a belief that the apparent guillotine aspect of Koppenol DCJ’s order had taken effect. However, where they were disbursed from the estate in expectation that the litigation had been finalised and Ms Cyati has, quite properly, undertaken to repay those disbursements if required by the orders of this Court, it is appropriate that they notionally be included in the value of the estate. They were, after all, payments received by the beneficiary under the estate and should notionally be accounted for in the event there needs to be a reassessment of entitlements from the estate. They amount to $344,526.20.^[87]
123. [123]
     Therefore, without attempting to make any precise allowance for the legal costs in the current hearing, I notionally assess the value of the estate at the time of the hearing as being less than $608,500.

What is the applicant’s current financial position, including her current and ongoing needs?

124. [124]
     The applicant is currently aged 60 years. As earlier noted, I accept that she suffers from ailments related to her mental health, however I cannot assess the precise extent of them. I also accept that she suffers from some physical ailments but, again, the extent of them cannot be accurately assessed. It is therefore difficult to determine the extent of any need for present and future treatment, although there will be some. She does not have private health insurance. I accept there will be a need for treatment and medications, albeit one that cannot be identified with any real precision. She currently appears to be able to meet these needs, but I accept there is some likelihood that will not continue into the future.
125. [125]
     The applicant is a discharged bankrupt and remains in possession of the Toowong property. However, as I understand the position, there remains a dispute over the title and the bankruptcy trustee asserts some right over it. The details of that issue are particularly unclear, and I proceed on the basis that she owns the property. There is no current valuation of the property in evidence, but the relevance is that she has a residence, albeit one which has been the subject of disputes between her and the body corporate.
126. [126]
     She categorises herself as unemployable. As noted at paragraph 116 herein, I am prepared to accept that as a general statement of practicality, especially given her at times pugnacious demeanour. However, I do not rule out her ability to obtain short term employment on occasion, should she be so motivated.
127. [127]
     The applicant’s superannuation account has a balance of $77,571.32 at the time of hearing.
128. [128]
     She attests to her sole income being a Centrelink benefit and a student stipend, apart perhaps from some small share dividends. Apart from the relative extravagance of taking a diving holiday late last year to satisfy a strong desire, the discovered bank accounts tend to suggest she has a meagre income and lifestyle. In fact, when cross-examined about what the provision of funds from the estate would achieve, she testified in terms confirming that position, and which I thought was a raw and compelling aspect of her evidence.^[88]
129. [129]
     Having said that, it is unclear what debts, if any, she has apart from her HELP loan debt. I don’t have regard to that for these purposes. It, of course, is only repaid when the debtor’s income reaches a certain level, which seems unlikely in this case, and it is not reclaimable after death. Although I did consider it for the purposes of understanding her financial position as at the time of death, the applicant was then capable of well-paid employment, and so there was then a real possibility of her income being reduced through repayments. That is not the case now.
130. [130]
     Reference was earlier made to a payment of $35,000 concerning litigation involving the body corporate. That was a debt before bankruptcy. It is not clear whether there were any other payments made, or debts incurred, post-bankruptcy as a result of the various proceedings in which she was a party, although she has referred only to a costs order granted earlier this year in related proceedings in the Supreme Court.^[89] Apparently that was an attempt to challenge the probate granted some six years earlier in respect of the subject Will, which Will formed the basis for six years of litigation in the current proceedings. I am unaware of an assessment of those costs but, there has apparently been some recent written communication between the parties about them.
131. [131]
     I do not place any real weight on the existence of that debt.  That application was made in circumstances whereby the applicant must have been aware that there was a real risk of it failing, and hence the real risk of incurring the costs order which was made.

What is Ms Cyati’s current financial position, including her current and ongoing needs?

132. [132]
     Ms Cyati’s current financial position is far healthier than the applicant’s at the time of the hearing, and is much healthier than at the time of her father’s death.^[90] Her primary asset is a bank balance, but other assets increase her financial position to a little over $1.8 million. She has a very modest superannuation balance. I deduce that the bank balance is largely the result of having sold the former matrimonial home,^[91] and she now rents residential accommodation.
133. [133]
     She has a variable income, presently resulting in a nett income in the order of $52,000 per annum. Her now 20 year-old daughter remains partly dependent on her, although it can be assumed that will change in the next few years.
134. [134]
     In summary, she is presently financially comfortable but in a position that her finances are likely to erode when she stops working in the foreseeable future.

Conclusion

135. [135]
     As best as can be determined on the evidence, the applicant’s financial position has significantly diminished between the date of death and the date of hearing, a period of roughly 8 years. Due to the uncertainty around the extent of disclosure, there are difficulties in being assured that she is in the difficulties she attests to. Assuming the available evidence to be a broadly accurate representation, she is not in a financially healthy position, but others in the community are far worse off than her. She is not living a lifestyle she wishes to, and it undoubtedly does have its constraints, but at least she has a mortgage-free residence to live in, which is also a significant asset should she need to, or wish to, liquidate it.
136. [136]
     On the other hand, Ms Cyati is in a better financial position, but it is not one that can be described as necessarily being sound for the rest of her life.
137. [137]
     I accept that the demise of the applicant’s financial position appears to be linked to the series of litigations that she has involved herself in, both primarily concerning this estate and her body corporate. It is not immediately apparent that she has had any significant success in any of them. I am satisfied that provision from the estate should not be made to, in effect, compensate her for her past persistent tilting at her own legal windmills, at least where there is a legitimate expectation of provision by another.
138. [138]
     I also accept that the length of time taken to bring these proceedings to a hearing, and the respondent’s involvement in other associated litigation, has resulted in a significant diminution of the value of the estate. It appears that the applicant did not anticipate the ruling by Barlow KC DCJ that effected a stay on the proceedings, and so that delay should not be laid at the applicant’s feet, even though she voluntarily entered the bankruptcy. Nonetheless there has been considerable other delay in the present proceedings, including a lengthy delay in filing her first affidavit, as well as other unexplained delays and those caused by her pursuit of other related litigation. I accept that is a relevant feature in the determination of whether any provision should be made and, if it is, the extent of it.^[92]
139. [139]
     I also consider that some recognition should be given to the testator’s intention in the disbursement of the estate, even where it cannot be given precise effect. In this case, that neatly ties into the proposition that equality of provision is not a defining consideration.
140. [140]
     Bearing all of those features in mind, had the applicant satisfied the first stage test I would have made orders that had the effect of awarding the applicant 15% of the residuary of the nett balance of the estate.