Byfield v Crane

[2025] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

 Byfield v Crane [2025] QDC 142

PARTIES:

CAROL ANNE BYFIELD

(Applicant)

v

JAMES CLAPHAM CRANE

(Respondent)

FILE NO/S:

 2058/22

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 October 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

 10 October 2025

JUDGE:

Porter KC DCJ

ORDERS:

1.   There be further provision made for Carol Anne Byfield from the estate of Hazel June Cousens in the amount of $75,000.00, inclusive of costs.

2.   Anthony James Jonsson and Matthew Jarvis Mullen the trustees appointed by Justice Henry of the Supreme Court on 23 August 2024, on a statutory trust for sale for 78 Swan Street Gordonvale, pay from funds that they hold for the estate of Hazel Cousens as a co-owner of that property to Carol Anne Byfield by way of discharge of the order for provision made in order 1.

APPEARANCES:

The applicant appeared in person.

No appearance by the respondent.

1. The applicant seeks further provision from the estate of her mother under s. 41(1) Succession Act 1981 (Qld). For the reasons that, follow I order further provision be made in the amount of $75,000.

2. Hazel Cousens died on the 26th of November 2021, leaving five children, James, Mark, Carol, Patrick and Susan.  At the time of her death, she had a modest estate.  It comprised the house she lived in with her partner, Mr Purss.  She and Mr Purss owned the house as tenants in common in equal shares.  There was a small mortgage amount, her share of which was covered by cash held by her.  Ms Cousens left a will made 20 August 2015. 

3. Relevant to this case, that will left her property for the benefit of Mr Purss while he lived, in broad terms, and then the residuary of her estate being represented by her interest in the property to her son, James.  It also made James and Mr Purss the executors.  Mr Purss died within a couple of months of Ms Cousens.  Accordingly, James was the sole beneficiary and executor of the estate.

4. Paragraph 9 of Ms Cousens will stated, “I have made no provision in my will for my children”, and then she listed her four children other than James, “as I have no meaningful relationship with them, despite my repeated attempts to contact them over the years”.  Those statements are not admissible as truth to their contents but are admissible in these kinds of proceedings, to provide evidence of the reasoning of the testator in making their order.  The gravamen of that statement is challenged by the applicant, Ms Carol Byfield, and in evidence from her sister. 

5. On 23 August 2023, the applicant, Ms Byfield, commenced an application for further provision from her mother’s estate. That originating application and its supporting affidavit was served on solicitors acting for the respondent, the applicant’s brother, James, the executor under the will.  At that time, it appears uncontentious that James was in occupation of the house, certainly it was given as his address.  The firm acting for him was catchily named The Will & All. 

6. On the 20th of May 2022, The Will & All sent a letter on instructions which contained the will, the death certificate and a schedule of assets and liabilities.  As I have said that schedule indicated that, as a matter of substance, the value of the estate was about $157,000, being the value of a half-share in the house once state liabilities as at the date of death were paid. 

7. It might have been that that share was worth a little more than indicated in the schedule. The property sold in 2024 for $476,000, which ought to have given shares in the estates of a good deal more than $157,000 for the two joint owners.  However, the estimate is probably a good one for present purposes because, as we will see, the trustees had to pay considerable amounts of costs of sale and for the sale, such that the net sale proceeds turned out to be about $168,000 for each of the joint owners, not so far from the $157,000 estimated at the time. 

8. As I said, the originating application and supporting affidavit was served on The Will & All on the 25th of September 2022.  There was no suggestion that they did not communicate the application to their client or that the originating application and supporting affidavit were not effectively served.  It would be an odd thing, indeed, for solicitors acting for an executor who had been notified of a potential family provision claim not to be able to accept service. 

9. On the 23rd of September 2022, draft directions were provided by solicitors acting for Ms Byfield.  There was no response.  On the 12th of October 2022, The Will & All communicated that they were no longer acting.  Very little other detail was provided, and Ms Byfield’s solicitors were referred to Mr Crane personally at 78 Swan Street Gordonvale.  On the 6th of January 2023, a draft directions order, the originating application and material were served on Mr Crane, again, to that address by Ms Byfield’s solicitors, and during 2023, they tried to progress the family provision application with Mr Crane with no success.  In late 2023, they came to believe that a firm called WGC Lawyers were acting for the estate, but if that is what they thought, it seems to have been a misunderstanding.  WGC Lawyers were acting for the executor of Mr Purss’ estate and sought probate of his will. 

10. In May 2024, Monaco Solicitors again sent a letter to Mr Crane asking that the relevant proceeds of sale, should the property be sold, be placed into trust, and that was delivered to his residence on the 20th of May. Relevantly, that letter threatened to seek an order from the court preserving the funds of the estate. They got no response. In the meantime, the executor of Mr Purss’ estate was acting with more diligence. She obtained probate of the will of Mr Purss and, on the 23rd of August 2024, obtained, as applicant with Mr Crane as personal representative of the estate of Ms Cousens as respondent, an order under section 38 of the Property Law Act 1974 (Qld), for a trust for sale.

11. Mr Jonnson and Mr Mullen who are, I assume, partners or directors of Grant Thornton in Cairns were appointed as statutory trustees.  His Honour’s order is before the court.  The trustees, then, moved to sell the property.  I was assisted in knowing what happened with the estate after that by Ms Laura McMillan.

12. Ms McMillan is a solicitor who works for O’Connor Law in Cairns.  O’Connor Law are the solicitors for the statutory trustees.  She acted on their instructions for a good part of the last year apart from a period when she was on maternity leave.  But she had access to her firm’s file.

13. Ms McMillan gave oral evidence.  She was able to provide evidence about some important events and circumstances relating to the trusts for sale.  She was asked about an email from Mr Carey, a director of O’Connor law, to Ms Byfield from about 19 August 2025.  That document contained an extract from what Ms McMillan was able to confirm was an extract of the accounts for the trust kept by the trustees.  It shows that the property was sold for $476,000, that there were 130,000 dollars-odd worth of property related costs with net proceeds for each of the joint owners of $168,000. 

14. That remained the amount available for the Purss estate.  Neither Ms Byfield nor, to her knowledge, any of her family are beneficiaries in that estate.  More relevant and unfortunate is the position in respect of Ms Hazel Cousens share.  It was substantially reduced by $74,000, being costs to evict Mr Crane.  There is evidence that he continued to live in the house for some time after the death of his mother, at least at 2024.  Ms McMillan was able to fill in the gaps as she had acted in or been involved in or had direct knowledge of the proceedings to evict Mr Crane, which she described as difficult.

15. She also referred to an order made in the trusts for sale proceedings where the claim for possession was understandably brought by the statutory trustees in which Justice Henry ordered the costs of those proceedings to be paid from the estate of Ms Cousens.  When I say, “The estate of Ms Cousens,” I should say to be paid from her entitlement under the trusts for sale, of course, because the statutory trustees are not dealing with the estate issues.  As a matter of substance, though, those costs being charged against Ms Cousens share meant that the estate itself was reduced by $74,000.

16. Ms McMillan took instructions and reported on behalf of the trustees that the net minimum sum that was available, allowing for future costs and so on, was $75,000.   

17. Ms McMillan also said that she, as a solicitor acting for the statutory trustees, had no success at all in the months since the sale occurred in getting any response from Mr Crane about payment of the net sum due to Ms Cousens and, therefore, to the estate and, indeed, gave evidence that, to her knowledge, neither the statutory trustees nor her firm had any idea where Mr Crane was.   It now appears he is living at 29 Bathurst Drive, Bentley, where he was served with the application for these orders by post.

18. In December 2024, Monaco Solicitors ceased acting for Ms Byfield and she began acting for herself.  In the middle of 2025, she tried to have her matter brought on for hearing.  She did that by filing an application for family provision.   

19. Between July and September, there was various mentions as she endeavoured to bring this application to the attention of Mr Crane in a way that was satisfactory to the court.  Ultimately, he was able to be served with an application for service and then notice of this application was able to be given at that address by post on the 1st of October 2025.  In my view, there has been sufficient notice of this application. 

20. The history of the application, even ignoring evidence from Ms Byfield about her brother’s behaviour, demonstrates that Mr Crane has not discharged any of the duties of an executor of an estate the subject of a family provision application.  Even though this is a small estate and even though, as I infer, Mr Crane has mental health and other problems of his own, as an executor, he had duties in relation to the application and they have not been complied with.  He has not cooperated in the conduct of the proceedings at all.  Rather, to the contrary, as an executor, he had a duty separate from his own personal interest, to preserve the assets pending the determination of this application, and to deal with the assets in a way that was in the interests of the administration, including those of the family provision applicant. 

21. While I appreciate that he is probably a person of very little means himself, to continue to live rent-free in the house and not properly maintain it was a breach of that duty.  He managed to, it seems, live there rent-free for at least three years, which is a benefit that he has received from the estate. 

22. Worse was his behaviour requiring litigation to obtain possession of the house.  One can well understand high emotions would fly about the matter, but in the end, as a matter of law, he was not entitled to be in possession of the property rent free, unless and until, at the very least, this application was dealt with, and the interests of Mr Purss had been addressed.  What he did instead was force litigation for his removal, in breach of his duty as an executor, in a way that has cost the estate $74,000.

23. In assessing whether adequate provision has been made for the proper maintenance and support of Ms Byfield, I need to consider whether that jurisdictional question is made out at the date of death.  The value of the assets of the estate at the date of death was probably more like $200,000.  Ms Byfield’s position, then and now, has not much changed.  She is 65 and has been on disability support since 2017, or around there, which is a modest sum.  She is single and lives alone in a rental property.  She has four children and three stepchildren over 18.  She has almost no resources of any substance, other than $11,000 in superannuation.  She has several psychiatric and physical health needs. 

24. She has three siblings other than James.  One of those siblings has filed an affidavit in support of her application; the other two, she says, are aware of the application.  In any event, after the matter being on foot for years, no attempt to make a claim has been advanced by either of them. 

25. Ms Byfield had a difficult childhood and young adulthood, when she became pregnant quite early.  She had a difficult relationship with her initial partner.  There was the relationship with her mother, that she says was a reasonably close one, albeit, with periods of conflict. 

26. She gives evidence that her mother and Mr Purss separated in 2016, and that around that time, she did have a falling out with her mother, which was reconciled subsequently.  She gives evidence that her brother was quite domineering in her mother’s life.  In circumstances where he has not engaged or put on any evidence, it is difficult to make findings about those sorts of matters with confidence. 

27. Experience tells us that there can be very different perspectives about relationships with elderly parents between siblings, and it is not unknown for elderly parents to tell different things to different children about the others.  There is an affidavit from Ms Byfield’s sister, Susan, in which she describes abusive and greedy behaviour of her brother, James, at the time her mother was ill. 

28. Ms Byfield’s position has got, it seems, worse, not better, in the last few years.  She is suffering from unstable accommodation, as, sadly, so many people are these days.  I am willing to act on the basis that both she and her brother, James had a good deal of financial need.  Given that her other siblings have not engaged in his process, I do not take their positions into account.

29. I covered the issues of relationship and need.  I have not forgotten the observations in the will; however, again, experience tells us that those kinds of observations can be of a passing nature and relevant to a particular event, and in any event, Ms Byfield’s need is such that her mother failed in her duty to make adequate provision for her proper maintenance and support by leaving her nothing under her will, notwithstanding the modesty of her mother’s estate. 

30. The question is what provision to make.  As I have said, there is only $75,000 in the estate, represented by the minimum net amount to which the estate is entitled on the sale of the property in the way I have described.  Notwithstanding his misconduct as an executor, I might have been inclined to leave some part of those funds for Mr James Crane, but it is difficult to do so in circumstances where he caused such loss to the estate and had the benefit of living in the estate house for three years.  There may also be costs which Ms Byfield needs to address from Monacos, although that issue is a matter for her to take up with them.  But to my mind, adequate provision for a proper maintenance of support required at least $50,000 to be paid to Ms Byfield as the only competing interest.  There will or may be costs.  There is an estimate of those at $25,000 in the original affidavit. 

31. Doing the best I can, I intend to order that there be further provision made for Carol Anne Byfield from the estate of Hazel Jane Cousens in the amount of $75,000.  I also order that Anthony James Jonsson and Matthew Jarvis Mullen, the trustees appointed by Justice Henry of the Supreme Court on 23 August 2024 on the statutory trust for sale for 78 Swan Street, Gordonvale, pay from funds they hold for the estate of Hazel Cousens as a co-owner of that property to Carol Anne Byfield by way of discharge of the order for provision made in order 1. 

32. I want to say a little bit about that form of order. The trustees were appointed by the Supreme Court. They are officers of that court with duties to that court. In the absence of proceedings before this court, this court would not have jurisdiction to make any order relevant to their trust. However, s. 69 of the District Court Act 1967 (Qld) provides ancillary jurisdiction for this court for the purposes of carrying out its primary jurisdiction conferred in section 68. This court’s jurisdiction includes making orders for further provision under section 41(1) of up to $750,000.

33. Section 69 should not be read narrowly. The purpose of it is to confer jurisdiction of this court on this court to ensure this court can exercise all the powers and authorities of the Supreme Court, including the powers and authorities conferred on that court by an Act, for the purposes of exercising the jurisdiction conferred by this part. As I said, that should not be read down or construed narrowly.

34. Here where I am dealing with a situation in which an executor has, whether from ignorance of the law or otherwise, utterly failed in carrying out his duty as an executor under the statute in respect of this proceeding, I have deep concern that if I do not provide clear instructions for the trustees that there may be pointless and wasteful disputation between the executor and the trustees about compliance with this order, which at a minimum might require the trustees to seek a direction under section 96 of the Trusts Act 1973 (Qld) to be able to pay on this order.

35. To my mind, it is for the purpose of ensuring that the exercise of this jurisdiction to award family provision is not frustrated that I exercise the power of the Supreme Court would have to give such a direction to the statutory trustees, and that is the reason I do so.  The statutory trustees were given notice of the proposed order by email by my Associate, and their solicitor communicated to my Associate they agreed to the order.  When that is confirmed in writing, the two emails will be made an exhibit in this proceeding. 

36. The order I have made is that further provision be made for Ms Byfield for $75,000 inclusive of costs and that those funds be paid direct from the statutory trustees to Ms Byfield.