EJK v Public Trustee of Queensland

[2011] QDC 178

[2011] QDC 178

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN SC

No 1152 of 2010

EJK	Applicant
and
PUBLIC TRUSTEE OF QUEENSLAND	Respondent

No 2568 of 2011

EMS	Applicant
and
PUBLIC TRUSTEE OF QUEENSLAND	Respondent

BRISBANE

..DATE 10/08/2011

ORDER

CATCHWORDS

Succession Act 1968 s 41

Court sanctions compromise of application for further provision, a timely one by an adult daughter and a late one by an elderly widow (who was granted more time to apply notwithstanding earlier intimations that she wanted no more than the right to occupy a residence (which she had to keep up) and a modest legacy)

HIS HONOUR: The court makes orders in terms of initialled drafts which all parties concerned join in presenting to the court in originating applications 1152 of 2010, one for further provision for a daughter of the testator pursuant to section 41 of the Succession Act 1981; and originating application 2568 of 2011, a similar application made by his widow well out of time.

She is a lady in her mid-eighties.  Her marriage to the testator was the second for both of them.  She stood by him for 35 years or so, so long as their marriage endured and was a support to him at the end.  The estate is a modest one.  She was left $10,000 and the right to occupy for life a home unit in Toowoomba, which had been the matrimonial home for more than two decades.  That gift was subject to onerous conditions which effectively imposed on the widow the obligation to bear all costs in respect of the unit.  The marital relationship was such that she was excluded from anything to do with financial affairs, although consistently with the spouses’ agreement the two of them to a considerable extent kept their financial affairs separate.

I'm satisfied that to the extent that the widow had been told of the terms of the will following the death of her husband she had no appreciation of the implications of it for her, and such intimations as might've appeared to emanate from her that she wanted nothing further under the will, although appraised of her entitlement to join in the daughter's application, were based on a misunderstanding of her situation.
I'm fortified in those views by the affidavit of the testator's eldest daughter, one of those relinquishing any interest in the estate.  That contains a persuasive account of the widow's difficulties in the light of her age and naivety in relevant matters, also the difficulties she had in coping with the protracted health crises associated with her husband's final illness and the even more protracted last months of a sister in the same hospital.

Although there was at one stage resistance to the notion of the widow being allowed to chop and change, so to speak, and with the effect of standing in the way of a compromise which had been reached by all or most of the other parties, and perhaps based on assumptions about where the widow stood, now the parties are agreed that she ought to have additional time to be an applicant.  The extension that she gets is significant.  She comes 15 months out of time.

The small estate has been significantly depleted by legal and administration costs. The court is not in a position to be critical of anyone and is not doing so, but there has been an application to the Supreme Court to grant administration of the will to the Public Trustee, which seems a curiosity given that it was named in the will. There's been a further application to the Supreme Court under section 134 of the Public Trustee Act to authorise the Public Trustee to compromise the daughter's application given that not all of those interested in the estate were supportive of it. That proceeding was adjourned when the widow's interest in pursuing an application, which in the circumstances had come to appear vital, as even her right to occupy the unit was in jeopardy. That Supreme Court application was adjourned awaiting the outcome of what might happen in the District Court. I think it was contemplated that the widow would join in 1152 of 2010. Instead she instituted her own proceeding, perhaps out of concern that suggestions were being made that there was nothing left of 1152 because it had been compromised. So we have yet a fourth proceeding.

The court is comfortably satisfied that the extension of time sought by the testator's widow ought to have been forthcoming.  The estate is now to go to her, subject to a payment of $70,000, which represents, it's thought, all that remains of the estate, going to the daughter.  That seems to me roughly equivalent to what she might've taken under the compromise that was reached at a mediation - not attended by the widow or her solicitor, incidentally - when the costs that she was considered entitled to were added in.

The daughter's affidavit tells a sad story from her point of view of alienation from the family. It justifies, on the basis of medical issues and other things, the making of her application. It's not necessarily one that has won the support of others interested, and the mediated compromise I've seen described as a "commercial" one, perhaps similar in some respects to the "going away money" which was paid to one of the applicants in 80 and 81 of 2011 (see [2011] QDC 147).

In the case of a modest estate like this one the executor is in an invidious position, charged with defending the interests of the beneficiaries in a context in which the pie that's there, such as it is, is at risk of disappearing in costs.  The resolution that the court congratulates the parties on reaching appears to be a just one and is reached thanks to the understanding attitude of the testator's two sons and the eldest daughter.

The importance of adequate provision being made for an elderly widow such as the present one, who the court hears is on the point of having to enter a nursing home, should never be overlooked. It's convenient to make reference here to Szlazko v Travini [2004] NSWSC 610, and the important New South Wales Court of Appeal authority referred to therein at paragraph 34 of Moore v Moore for which for the moment I have only the inadequate reference CA1984. The Court of Appeal endorsed the following proposition: "Though there is a propensity on the part of will draftsmen to grant rights of residence it is pointed out in Australian Wills Precedents, 3rd Edition, page 25, 'Mere right of residence is an unsatisfactory method of providing for a spouse as, if the spouse is compelled to give up her right by simply sickness, he or she cannot obtain support by obtaining income from the property'." That statement was expanded upon in Szlazko.

It shouldn't be thought that the widow was without resources of her own.  She had a sum of some $70,000 as a result of turning into cash her house, but she made the wise and justifiable decision that it was important to retain that as a buffer for the vicissitudes which, apparently correctly, she anticipated might afflict her in the not too distant future.

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