Danckert v Holmes

Case [2021] QDC 6

DISTRICT COURT OF QUEENSLAND

CITATION:

Danckert & Ors v Holmes [2021] QDC 6

PARTIES:

PATRICIA JEAN DANCKERT
(first applicant)

DIANE LESLEY MACRAE
(second applicant)

and

MICHAEL JAMES HOLMES
(applicant by election)

v

DAVID WARREN HOLMES AS EXECUTOR OF THE ESTATE OF THE LATE REGINALD WILLIAM HOLMES
(respondent)

FILE NO:

D77/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT

District Court of Queensland at Maroochydore

DELIVERED ON:

22 January 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

Decided on the papers without oral hearing

JUDGE:

Cash QC DCJ

ORDERS:

Orders as per draft.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – JURISDICTION – GENERALLY – where claim made for provision from estate of deceased – where parties reached an agreement as to distribution – where the total amount to be paid to the three applicants is $930,000, exceeding the District Court limit – where proceeding involves three separate claims within the monetary limit of the District Court – whether the District Court has the jurisdiction to make the orders sought

SUCCESSION – FAMILY PROVISION – where claim made for provision from estate of deceased – where parties reached an agreement as to distribution – whether the applicants have been left with adequate provision for proper maintenance and support

District Court of Queensland Act 1967 (Qld), s 68(1)(x)
Succession Act 1981(Qld), s 41
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 490,
r 498

Bartlett v Coomber [2008] NSWCA 100
Remote Data Systems P/L & Ors v Hoover & Ors [2000] QCA 116
Singer v Berghouse (1994) 181 CLR 201
Startune Pty Ltd v Ultra-Tune Systems (Aust.) Pty Ltd [1991] 1 Qd R 192
Vigolo v Bostin (2005) 221 CLR 191
Watts v The Public Trustee of Queensland [2010] QSC 410

SOLICITORS:

Sunshine Coast Legal for the first and second applicants

Kruger Law for the applicant by election

Bradley & Bray for the respondent

  1. These are applications made pursuant to section 41 of the Succession Act 1981 (Qld). They arise from the death of Reginald Holmes (the deceased) on 7 December 2019 at Nambour. He was 91 years old. His estate is substantial. It consists of an unencumbered property at Bli Bli valued at $1.7 million, farm machinery valued at $65,000, cash at bank exceeding $420,000 and a caravan valued at $25,000. The deceased was survived by four known children.[1] In birth order they are Diane Macrae (the second applicant who was born in 1952[2]), Patricia Danckert (the first applicant who was born in 1961), David Holmes (the respondent who was born in 1962) and Michael Holmes (the applicant by election who was born in 1965). I will refer to the parties by their first names for the sake of clarity.

    [1]The affidavit material refers to the possibility that the deceased fathered two other children in his lifetime. The two persons who might be children of the deceased had been adopted by others when they were young. It is not suggested they might have a claim on the estate.

    [2]The deceased is not the biological father of…

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AGLC
Danckert v Holmes [2021] QDC 6
Case
[2021] QDC 6
Decision Date

CaseChat Overview and Summary

In the matter of Danckert v Holmes, the court was asked to determine the jurisdiction and validity of claims made by three applicants for provision from the estate of the deceased, David Holmes. The parties had reached an agreement on the distribution of the estate, but the total amount, $930,000, exceeded the monetary limit of the District Court. The primary legal issue was whether the court had the jurisdiction to make the orders sought, given that each individual claim fell within the monetary limit of the District Court. The court held that despite the total amount exceeding the jurisdictional limit, the court had jurisdiction to make the orders as the parties had agreed on a distribution that kept each individual claim within the limit.

The court examined the jurisdictional question by considering the nature of the proceeding, which involved three separate claims. Although the application did not confine the orders sought to those within the monetary limit, the court found that this was an irregularity that could be corrected. Each applicant deposed to seeking an amount less than the District Court's limit, and the parties agreed that orders should be made within the court's jurisdiction. The court concluded that the District Court had the jurisdiction to make the orders sought, as the deficiency in the application was not a bar to jurisdiction.

In determining the family provision claims, the court applied the two-stage process required by statute. First, the court had to determine whether each applicant had been left without adequate provision for their proper maintenance and support. Second, if so, the court would determine the appropriate provision to be made. The court acknowledged that there were disputes about the applicants' financial positions and relationships with the deceased but found that the most important consideration was the agreement reached by the parties and the potential costs of further litigation. The court concluded that giving effect to the parties' agreement was appropriate, as a full hearing would be expensive and would deplete the estate.

Orders

Orders of the court

Orders as per draft.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no reason the same approach should not apply to the present matter. While there is a single proceeding, it is a proceeding for the determination of three separate claims. The application as filed does not, as it should, expressly confine the orders sought to those within the money limit of the court; no amount is identified at all.[7] But this is an irregularity that is capable of correction and should be seen in the context that each applicant deposes they seek amount less than the money limit of the District Court. Notwithstanding this irregularity, the parties all agree that orders should made for provision from the estate such that each applicant receives an amount which is within the jurisdiction of the District Court. In the circumstances I am satisfied the District Court has the jurisdiction to make the orders sought and any deficiency in the application is no bar.[7]Startune Pty Ltd v Ultra-Tune Systems (Aust.) Pty Ltd [1991] 1 Qd R 192, 197.Evidence Diane deposes that her biological parents separated when she was two years old. After some years in the care of her grandparents, Diane came to live with her mother and the deceased in Sydney when she was about five years old. She was known from that point by the deceased’s surname, Holmes. Diane married in 1971 and describes regular contact with her mother and the deceased, including after moving to the Sunshine Coast. The deceased came to move to the Sunshine Coast as well. In the 1980s Diane established contact with her biological father. She deposes that in late 1994 the deceased and Diane’s mother expressed disappointment that Diane had established a relationship with her biological father. Soon after they ceased contact. Diane did not see her mother or the deceased again. Diane says she has high blood pressure and cholesterol issues as well as anxiety. She is 68 years old and married. With her husband she owns a house at Peregian Beach valued at $750,000. They owe about $127,000. They also share a managed investment fund worth $230,000. She appears to be healthy and in a good financial position. Patricia describes a series of events involving her marriage, separation and subsequent reconciliation with her husband as resulting in long period of estrangement from her parents. She was not told when her mother died. Patricia acknowledged that at times before the estrangement she and her husband lived with her parents but said they contributed to the running of the household. In 2019 she reconciled with the deceased, visiting him at the Sunshine Coast. There is clearly animus between Patricia and David. Patricia and her husband face health issues common to persons in their late 60s. The financial position of Patricia and her husband is modest. The do not own a home. Their largest assets are superannuation worth $435,000 and a boat valued at $80,000. While they have only a modest income, they have practically no liabilities. Michael is the youngest of the sibship. He was raised by his parents in Sydney and worked for the deceased at various times as a young man and adult. After an argument in 2005 or 2006 David and the deceased lost contact for about ten years. They reconciled in 2015 around the time of David’s mother’s passing. David deposes that he did some unpaid maintenance work at the Bli Bli property around this time. When the health of the deceased deteriorated it was David who took the role of carer, but Michael’s wife assisted with physiotherapy and occupational therapy. Michael has limited assets, the most substantial of which is a boat valued at $14,000. He does not own a house. He works as a roofer with a taxable income averaging around $60,000 per year. His wife has a similar income. Their superannuation savings are not substantial.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

David, the executor and main beneficiary under the will, is married. He appears to have been the child closest to his parents. He worked in the marine industry as did the deceased. At times David lived with his parents and helped them financially. David addresses the affidavit of each of three applicants. There is obvious dispute between the parties about historical events and their significance. In light of the position of the parties it is unnecessary for me to resolve these conflicts in the evidence. David and his wife have about $150,000 in the bank, the proceeds of the sale of a block of land. They have about $90,000 in superannuation and other assets worth about $24,000. Their combined fortnightly income of $1,760 is just sufficient to meet their needs.Consideration The present application is intended to give effect to the agreement of the parties reached in November 2020. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed. First, the court must determine a jurisdictional question of whether an applicant has been left without adequate provision for his or her proper maintenance and support. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.[8] In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.[9][8]J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.[9]Bartlett v Coomber [2008] NSWCA 100, [57]-[58], [72], [90]-[91]; Watts v The Public Trustee of Queensland [2010] QSC 410, [15]. The question of whether an applicant has been left without adequate provision is to be answered having regard to the their financial position, the size and nature of the 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 the estate.[10] If an applicant has a legitimate claim on the estate, the second question is what amount they should properly receive. This requires consideration of what provision a ‘wise and just testator’ would have made. [10]Singer v Berghouse (1994) 181 CLR 201, 209-210. On the material presently before the court, it may be questioned whether Diane’s financial position is such that she has been left without adequate provision. Patricia and Michael are in a different position and it is easier to conclude that they have been left without adequate provision. The evidence of the relationship each applicant enjoyed with the deceased is, to an extent, in dispute. The deceased, for whatever reason, had sufficiently strong views to declare why he did not wish to leave any of his estate to Diane and Patricia. In these circumstances it is not possible for me to come to a concluded view about the real merits of the three applications. In my view, the most important consideration is not the financial position of the applicants and their relationship with the deceased but the agreement reached by the parties and the effect further litigation would have upon the estate. While the estate is not modest, a full hearing to decide the disputed issues would be undoubtedly expensive. It would deplete the estate and amount available for distribution to whomever were the successful parties. Where the parties have agreed to a distribution it is appropriate that this court gives effect to their agreement.