Campbell v Carroll

[1995] QCA 184

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 191 of 1994

Brisbane
[Campbell v. Carroll & Anor.]

BETWEEN:

GRAHAM CAMPBELL

(Applicant) Appellant

AND:

LIONEL JAMES CARROLL

(Respondent) Respondent

AND:

RAYMOND JOHN CARROLL

(Respondent) Respondent

Fitzgerald P.
Davies J.A.

White J.

Judgment delivered 16/05/1995

Separate reasons for judgment of each member of the Court.

Fitzgerald P. and White J. concurring as to the orders made;

Davies J.A. dissenting in part.

APPEAL ALLOWED; ORDER BELOW SET ASIDE AND IN LIEU,

SUBSTITUTE AN ORDER THAT:

THE LAST WILL AND TESTAMENT OF THE LATE OLGA MARY CAMPBELL
DATED 19 DECEMBER 1988 BE VARIED AS FOLLOWS:

(A) BY DELETING THAT PART OF THE WILL COMMENCING IN THE FOURTH PARAGRAPH "I DIRECT MY EXECUTORS TO HOLD MY HOUSE ... " THROUGH TO AND INCLUDING THE WHOLE OF THE PARAGRAPH COMMENCING "THIRDLY TO DIVIDE THE RESIDUE THEN REMAINING BETWEEN MY SONS ... ";

(B) BY INSERTING IN LIEU OF THE DELETED PORTION OF THE WILL

THE FOLLOWING SPECIFIC PROVISIONS:

"I GIVE AND BEQUEATH MY FURNITURE AND HOUSEHOLD
EFFECTS TO MY HUSBAND GRAHAM CAMPBELL

I DIRECT MY EXECUTORS (HEREINAFTER "MY TRUSTEES") TO HOLD ALL OTHER ASSETS OF MY ESTATE BOTH REAL AND PERSONAL OF WHATSOEVER NATURE AND KIND AND WHERESOEVER SITUATE UPON TRUST FOR MY SAID HUSBAND GRAHAM CAMPBELL DURING HIS LIFETIME AND UPON HIS DEATH FOR HIS ESTATE AND FOR MY SONS LIONEL JAMES CARROLL AND RAYMOND JOHN CARROLL AS TO ONE-THIRD EACH AS TENANTS IN COMMON

I FURTHER DIRECT THAT SO FAR AS POSSIBLE MY HOUSE AND LAND SITUATED AT 1 COMET COURT, BURLEIGH WATERS IN THE STATE OF QUEENSLAND BE RETAINED AS A RESIDENCE FOR MY SAID HUSBAND GRAHAM CAMPBELL FOR SO LONG AS HE DESIRES TO LIVE THERE AND THAT SHOULD MY SAID HUSBAND DESIRE ANY DIFFERENT ACCOMMODATION FOR ANY REASON I DIRECT MY TRUSTEES TO SELL MY SAID PROPERTY AT 1 COMET COURT, BURLEIGH WATERS AFORESAID AND USE THE PROCEEDS OF SUCH SALE TO PURCHASE SUCH ACCOMMODATION AS MY SAID HUSBAND DESIRES AND SHOULD SUCH PROPERTY IN TURN BECOME UNSUITABLE ACCOMMODATION FOR MY SAID HUSBAND, SUCH ACCOMMODATION SHALL LIKEWISE BE SOLD AND THE PROCEEDS USED FOR THE PURCHASE OF ACCOMMODATION SUCH AS MY HUSBAND DESIRES AT THAT TIME

I FURTHER DIRECT THAT SHOULD THE CAPITAL OF THE TRUST FUND AT ANY TIME CEASE TO BE HELD IN REAL ESTATE AND BE A DEFINABLE MONETARY SUM, MY SAID HUSBAND GRAHAM CAMPBELL MAY CALL FOR A DISTRIBUTION OF HIS ONE-THIRD INTEREST THEREIN IN WHICH EVENT MY TRUSTEES SHALL CONTINUE TO HOLD THE BALANCE TWO-THIRDS ON THE SAME TRUSTS (SAVE AND EXCEPT FOR THE RESIDUARY DISTRIBUTION) UNTIL THE DEATH OF MY HUSBAND GRAHAM CAMPBELL

I FURTHER DIRECT THAT SHOULD ANY PART OF MY ESTATE EARN AN INCOME DURING THE LIFETIME OF MY SAID HUSBAND THEN MY TRUSTEES SHALL HOLD SUCH INCOME ON TRUST FOR MY SAID HUSBAND FOR HIS SOLE USE AND BENEFIT ABSOLUTELY AND SUCH INCOME SHALL BE THE ACTUAL INCOME EARNED BY MY ESTATE AND SHALL NOT BE RESTRICTED BY ANY RULE OR PRACTICE TO THE CONTRARY

I FURTHER DIRECT THAT SHOULD MY SAID HUSBAND'S MEANS BE INADEQUATE TO MEET HIS NEEDS THEN SUCH NEEDS (INCLUDING, WITHOUT LIMITING THE SAME, ANY MEDICAL, HOSPITAL, NURSING HOME OR PHARMACEUTICAL EXPENSES) SHALL BE MET, IF NECESSARY, FROM THE CAPITAL OF MY ESTATE."

COSTS TO BE RESERVED FOR FURTHER CONSIDERATION; APPELLANT

MAY PROPOSE ALTERATIONS IN WRITTEN SUBMISSIONS AS TO COSTS.

CATCHWORDS: SUCCESSION: TESTATOR'S FAMILY MAINTENANCE:

whether testatrix failed in her duty to the appellant in the provision that she had made for him by her will.

Counsel:	Mr. M. K. Conrick for the appellant Mr. C. Newton for the respondents
Solicitors:	McDonald & Company for the appellant Michael Joseph Smith for the respondents

Hearing Date: 9 March 1995

IN THE COURT OF APPEAL	[1995] QCA 184
SUPREME COURT OF QUEENSLAND	Appeal No. 191 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. White J.

[Campbell v. Carroll]

BETWEEN:

GRAHAM CAMPBELL

(Applicant) Appellant

AND:

LIONEL JAMES CARROLL

(Respondent) Respondent

AND:

RAYMOND JOHN CARROLL

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 16/05/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of Davies J.A., and I agree with his Honour that the appeal should be allowed, the order made below set aside and the costs reserved.

However, I differ from his Honour's conclusion that it is a necessary consequence of making adequate provision for the appellant that he must be free to exclude the respondents from any interest in the house property, or any property into which the house property has been converted, after his death. Accordingly, although I agree with the deletions from the Will which his Honour proposes, I consider that the provisions inserted should entitle the respondents, after the death of the appellant, to a two-thirds interest in the house property or, if it has been disposed of, in the residue of the proceeds of sale of the house property or any other property into which the proceeds of sale have been converted.

As presently advised, the draft orders proposed by counsel for the respondent in a supplementary written submission dated 20 March 1995 seem to me suitable, but the appellant may propose alterations in his written submissions as to costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 191 of 1994

Brisbane

Before Fitzgerald P.
Davies J.A.
White J.

[Campbell v. Carroll & Anor.]

BETWEEN:

GRAHAM CAMPBELL

(Applicant) Appellant

AND:

LIONEL JAMES CARROLL

(Respondent) Respondent

AND:

RAYMOND JOHN CARROLL

(Respondent) Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 16th day of May 1995

This is an appeal from an order made in the District Court under Part IV of the Succession Act 1981. The applicant/appellant is the 78 year old widower of the deceased testator who died aged 73 on 3 July 1993. They had been married for 35 years.

Until 1979 the deceased and the appellant had lived

together in Melbourne in a house owned by the deceased.
Thereafter until she died they lived in a house, also owned
by her, at Burleigh Waters, Queensland. That house was the
only substantial asset in the deceased's estate. At the
time of death its value was between $150,000 and $180,000.

The appellant was the deceased's second husband. There were no children of the marriage. The respondents to the application are two adult sons of the deceased's first marriage who are also the executors of the Will. By the Will the deceased directed that the Burleigh Waters house be held upon trust for the appellant for a period of two years, but only whilst he remained living in it, and that he be responsible for its rates, upkeep and maintenance. She directed that at the expiration of two years, or earlier if he should cease to reside there, it be sold and that the proceeds be divided equally between the appellant and each of the respondents.

The respondents conceded that the deceased had failed in her moral duty to the appellant. They did not assert that they were in need of support.

The appellant submitted below and before this Court that the house property should have been left to him absolutely. The learned District Court Judge varied the Will only to the extent of preventing the executors from selling the house whilst the appellant remained in it or otherwise without his consent.

Although the house property was owned solely by the deceased, the appellant had contributed about $12,500 of the total purchase price of $46,000 in 1979. Most of the balance of that sum came from the proceeds of sale of the deceased's first home in Victoria. The appellant was in almost constant employment during his working life which continued until 1979 when he and the deceased moved to Queensland. During the period of the marriage until then he gave the whole of his income to his wife who handled the family finances. She also earned income from embroidery work. There was no evidence of their respective contributions to the family finances. However it is plain that, throughout their life together, they shared their income and assets equally between them.

The appellant is in reasonably good health for his age.
His only income now is a war service pension. His only
assets are a bank account with a credit balance of about
$10,000 and a small old car. Not surprisingly he would like

to remain living in the house which he had shared with his

wife.

Although the appellant's life expectancy cannot be high his financial ability to maintain the house as long as he is able to live there must require him to use his meagre assets. Upon his ceasing to live in the house, as he may well have to do for some years before he dies, he will have only those assets, together with his one-third share of the proceeds of sale of the house (which will probably be something less than $60,000) to support him during that part of his life when he may well need both domestic and nursing care.

In the absence of any competing moral claim, and there is none, neither the provision made by the deceased nor that as varied by the judgment below is, in my view, adequate provision for a surviving spouse at the end of a long marriage in which income and assets had been shared.

It may be unfortunate that a consequence of a devise of the house property to the appellant may be that the deceased's estate is, eventually, diverted from her own adult children to some relative of the appellant. But that is a necessary consequence of making adequate provision for the appellant.

I would conclude that the learned Primary Judge failed to give adequate consideration to the needs of the appellant and the absence of any competing need. The appeal should be allowed. The order made below should be set aside. The Will of the deceased should be varied by deleting the first paragraph commencing "I DIRECT", the following paragraph commencing "PROVIDED" and the following paragraph commencing "I ALSO DIRECT" and substituting in lieu the following paragraph:

"I GIVE DEVISE AND BEQUEATH my house situated at 1 Comet Court Burleigh Waters to my husband GRAHAM CAMPBELL."

The costs of the matter are to be reserved until the Court receives further submissions from the parties hereto.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 191 of 1994

Brisbane
[Campbell v. Carroll & Anor]

Before The President

Davies JA

White J

BETWEEN:

GRAHAM CAMPBELL

(Applicant) Appellant

AND:

LIONEL JAMES CARROLL

(Respondent) Respondent

AND:

RAYMOND JOHN CARROLL

(Respondent) Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 16/05/1995

The circumstances of this appeal are set out in the reasons for judgment of Davies JA. I agree that the appeal should be allowed and that the order made below set aside. I would reserve the question of costs for further consideration.

It was accepted by the respondents that the testatrix had failed in her duty to the appellant in the provision that she had made for him by her will. An order must therefore be formulated which will make adequate provision for the appellant's proper maintenance and support but which should go no further than that, McCosker v. McCosker (1957) 97 C.L.R. 566 at p. 578. I have had the opportunity to read the orders proposed by The President and, with respect, would agree with them.