Kirk v Withington[2023] QSC 141

SUPREME COURT OF QUEENSLAND

1. [1]
   Barbara Maria Kirk (Barbara) applied for an order making provision for her out of the estate of the late Gary William Kirk (Gary). The parties seek to have the application determined without oral hearing.

Background

2. [2]
   Barbara and Gary met in 1970, although both went on to meet and marry other spouses.
3. [3]
   By 1997, each of Barbara and Gary were widowed and they struck up a relationship. 
4. [4]
   In the meantime, Gary had produced three children who are the present respondents, Victoria Withington (Victoria), Katherine Redman (Katherine) and Anthony Kirk (Anthony). 
5. [5]
   Barbara also has children, Scott Gilbert (Scott) and Kerry Ann Goodfellow (Kerry).
6. [6]
   Gary and Barbara purchased a house at 97 Pebble Beach Drive, Runaway Bay.  That was purchased in 2000 and held as tenants in common in equal shares.
7. [7]
   The Pebble Beach Drive property was sold and Unit 19, 17 Bayview Street, Runaway Bay was purchased in 2019.  Unit 19 is held by Barbara and Gary as tenants in common in equal shares.
8. [8]
   Gary died on 10 February 2022 leaving a will dated 18 September 2017 (the will).
9. [9]
   The will appointed Anthony, Katherine and Victoria as executors and trustees.  Relevantly to the current application are two provisions:

“RIGHT OF OCCUPANCY

7.1 If my Fiancé BARBARA MARIA GILBERT^[1] (‘my Fiancé’) survives me I DIRECT:-

1. (a)
   my executors to hold my share of my principal residence as at the date of my death (currently situated at 97 Pebble Beach Drive, Runaway Bay in the State of Queensland^[2] (‘the Residence’) on trust for my Fiancé for a minimum period of six (6) months;

2. (b)
   that my Fiancé is to be responsible for paying all rates and taxes on the Residence AS well as keeping the residence insured against loss and damage from fire, storm and tempest in an amount and in an insurance office approved by my executors and maintaining it in a state similar to that in which it is at my death;

3. (c)
   upon such time that my Fiancé moves out of the Residence or at such time that the Residence is sold, the Residence forms part of the Rest and Residue of my estate;

REST AND RESIDUE

7.2 I GIVE the rest and residue of my estate to my Children as survive me by 30 days and if more than one then in equal shares as tenants in common.”

10. [10]
    Clause 7.1(a) concerns Gary’s “principal residence as at the date of [his] death”.  It then refers in brackets to 97 Pebble Beach Drive, being where his principal residence is “currently situated”.  It seems common ground that on a proper construction of clause 7.1, the will:

1. directs that Gary’s interest in Unit 19 be held on trust for Barbara for at least six months;
2. Barbara be responsible for paying rates and outgoings;
3. once Barbara vacates, Unit 19 falls to residue.

11. [11]
    Gary’s estate is valued at $771,226.03 as follows:

^[3]

12. [12]
    Barbara’s assets are:

1. her interest in Unit 19.  She values her interest at $503,000;
2. a property at 231 Stock Route Road, Point Pass, South Australia which Barbara values between $360,000 and $390,000;
3. $497,757.24 cash at bank.

13. [13]
    Barbara’s income is:

1. a pension from Defence Services of $2,086.55 per fortnight;
2. rental income of $200 a fortnight.

14. [14]
    By her application, Barbara asserts that the will does not provide adequately for her because Gary’s half interest in Unit 19 passes to the executors and she must therefore vacate her home within six months of Gary’s death.
15. [15]
    The dispute was settled between Barbara on the one hand, and Katherine, Anthony and Victoria on the other subject to final orders of the Court.  The operative provisions of the deed of settlement are:

“(b) The parties agree to read and construe the will as if clause 7.1 was deleted and replaced by the following clauses 7.1, 7.2 and 7.3:

‘7.1. If Barbara Maria Kirk (‘Barbara'’) survives me by thirty (30) days I give to my Executors my right, title and interest in the properly known at the date of this my will as Unit 19, 17 Bayview Street, Runaway Bay, Queensland (‘the property’) upon trust for sale with power to postpone such sale and to permit Barbara personally to occupy my right, title and interest in the properly rent-free until the distribution date, subject to:

1. (a)
   Barbara paying all rates, taxes, insurance,^[4] electricity, water, and other outgoings from time to time payable in connection with the property;

2. (b)
   Barbara maintaining the property in good order and condition (excluding structural repairs);

3. (c)
   Barbara obtaining written approval and consent (including a tenancy agreement, if required) from the Executors prior to any person other than Barbara residing in the property.

7.2 The distribution date shall be the date upon which the earlier of the following occurs:

1. (a)
   The date on which my Executors reasonably form the opinion that Barbara has failed to comply with any of her obligations under clause 7.1(a) to (c) above;

2. (b)
   The date upon which Barbara (or Barbara’s Power of Attorney/Legal Representative) provides written notice to my Executors that she has ceased personally to occupy the property as her principal place of residence; or

3. (c)
   The date of Barbara’s death.

7.3 From and after the distribution date I DIRECT that the property shall be sold within a reasonable amount of time and that the net safe proceeds which represent my right, title and interest in the property will form part of the Rest and Residue of my estate.”

16. [16]
    Scott and Kerry have both been provided with copies of the application.  Both have acknowledged receipt and both have indicated that they do not intend to make any application for provision from Gary’s estate.
17. [17]
    In summary, if the Court makes provision in the way contemplated the overall position will be:

1. Barbara will live in Unit 19 until her death;
2. Gary’s estate will pass to his children, Victoria, Katherine and Anthony;
3. Barbara may leave her estate, including her half interest in Unit 19, to her children, Scott and Kerry.

Relevant legislative provisions and principles

18. [18]
    The application is made on the basis that it be determined without oral hearing.  Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for such a procedure.  Rule 489 provides:

“489 Proposal for decision without oral hearing

1. (1)
   A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

2. (2)
   If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—

1. (a)
   under rule 491, the court considers it inappropriate to do so; or

2. (b)
   under rule 494, the respondent requires an oral hearing; or

3. (c)
   under rule 495, the applicant abandons the request for a decision without an oral hearing; or

4. (d)
   the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

19. [19]
    The structure of r 489 is that:

1. jurisdiction to proceed without oral hearing is granted;
2. the jurisdiction is enlivened by a proposal by an applicant;
3. the proposal must be accepted in the absence of the features in r 489(2)(a)-(d).

20. [20]
    Section 6(1) of the Succession Act 1981 grants jurisdiction to this Court in relation to “all matters relating to the estate and the administration of the estate of any deceased person”.  That includes jurisdiction to determine applications for family provision under Part 4.
21. [21]
    Section 41(1) of the Succession Act provides:

“41 Estate of deceased person liable for maintenance

1. (1)
   If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant ...”

22. [22]
    There are various other subsections of s 41 but here is no need to refer to them. The determination of an application for provision is a two-step process.  Firstly, it must be determined whether the provision made in the will for the applicant is “inadequate”.^[5] That must be assessed as a matter of fact upon all the relevant circumstances.^[6]  If inadequacy is found, the Court progresses to the second step which is to determine what provision should be made.^[7]
23. [23]
    Here, the parties have reached an agreed position.  That agreement cannot vest jurisdiction in the Court to make an order.^[8]  However, where parties have agreed as to the appropriate provision and there are no other interests involved, the Court will usually make orders in the terms of the compromise between the parties.^[9]

Consideration

Application without oral hearing

24. [24]
    Rule 489(2) of the UCPR provides that where an application is made for a decision without an oral hearing, the Court must decide the application without oral hearing unless one of the circumstances in r 489(2)(a) or (b) or (c) or (d) is present. 
25. [25]
    None of the circumstances prescribed by r 489(2)(b) or (c) or (d) pertain here.
26. [26]
    The parties have agreed on the outcome and all parties press the Court for the making of the order.  The only other interested parties (Scott and Kerry) have been served.  They make no claim upon the estate and appear to be not otherwise interested.
27. [27]
    In those circumstances, it is appropriate to deal with the application without oral hearing and so r 489(2)(a) does not apply.
28. [28]
    I have determined the application without oral hearing.

Order for provision

29. [29]
    Barbara clearly has substantial assets.
30. [30]
    However, by force of the will, she will become a co-owner^[10] of Unit 19 with Victoria, Katherine and Anthony.  They have a right to the appointment of a statutory trustee for sale of the property.^[11]
31. [31]
    The will only provides Barbara with a right to occupy Unit 19 for six months from Gary’s death, which time has already passed.
32. [32]
    Although Barbara may have the financial capacity to realise assets, contribute some of her cash holdings and purchase a residence, the provision made in the will is rendered inadequate because:

1. Barbara is 78 years of age;
2. she is retired;
3. her income is limited;
4. she has multiple chronic illnesses including a worsening of cardiac function.  She is presently under the care of a cardiologist, Professor Jonathan Chan.

33. [33]
    The jurisdiction to make the orders has, in my view, arisen.
34. [34]
    The proposed orders squarely meet the identified need of Barbara without otherwise interfering with the administration of the estate.
35. [35]
    The orders for provision as sought should be made.
36. [36]
    The ancillary orders, including as to costs, are agreed.  They also should be made.

Orders

37. [37]
    It is ordered that:

1. Pursuant to s 41(1) of the Succession Act 1981 (Qld), further and better provision be made for the proper maintenance and support of the applicant out of the estate of Gary William Kirk, deceased, by deleting clause 7.1 of the will of the deceased dated 18 September 2017 and in lieu thereof providing as follows:

‘7.1. If Barbara Maria Kirk (‘Barbara’) survives me by thirty (30) days I give to my Executors my right, title and interest in the property known at the date of this my will as Unit 19, 17 Bayview Street, Runaway Bay, Queensland (‘the property’) upon trust for sale with power to postpone such sale and to permit Barbara personally to occupy my right, title and interest in the property rent-free until the distribution date, subject to:

1. (a)
   Barbara paying all rates, taxes, insurance, electricity, water, and other outgoings from time to time payable in connection with the property;

2. (b)
   Barbara maintaining the property in good order and condition (excluding structural repairs);

3. (c)
   Barbara obtaining written approval and consent (including a tenancy agreement, if required) from the executors prior to any person other than Barbara residing in the property.

For purpose of clause 7.1(a) ‘insurance’ means insurance of all of the internal contents at the property, including, for the avoidance of doubt, floors, walls and window coverings. Further, Barbara agrees to provide a Certificate of Currency to the Executors once a year providing the continual pendency of such coverage.

7.2 The distribution date shall be the date upon which the earlier of the following occurs:

1. (a)
   The date on which my Executors reasonably form the opinion that Barbara has failed to comply with any of her obligations under clause 7.1(a) to (c) above;

2. (b)
   The date upon which Barbara (or Barbara’s Power of Attorney/Legal Representative) provides written notice to my Executors that she has ceased personally to occupy the property as her principal place of residence; or

3. (c)
   The date of Barbara’s death.

7.3 From and after the distribution date I DIRECT that the property shall be sold within a reasonable amount of time and that the net sale proceeds which represent my right, title and interest in the property will form part of the Rest and Residue of my estate.’

2. Upon the distribution date, the applicant and respondent (or their successors) will do all things necessary to ensure the timely sale of the property.
3. The applicant will not encumber or register any type of security interest over the property without first obtaining the written consent of the executors.
4. Upon the distribution date, should any other person be residing at the property, the applicant (or her successors) will do all things necessary to ensure that any other person living in the property vacates the property in a timely manner.
5. That pursuant to s 52(1)(e) of the Succession Act 1981, no legacy interest is payable.
6. That the respondent’s costs of and incidental to the proceedings be paid by the estate on an indemnity basis.
7. That the applicant’s costs of and incidental to the proceedings be paid by the applicant.