Fenton-Anderson v Power (No 2)
[2020] QDC 294
•20 November 2020
DISTRICT COURT OF QUEENSLAND
CITATION
Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294
PARTIES:
PETA DIVINA ALEXANDRA FENTON-ANDERSON & TONI LEIGH DOLORES FENTON-LESLIE
(Applicants)
V
DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)
(Respondents)
AND
SUZANNE MICHELLE FENTON
(Respondent by election)
FILE NO:
DC 42/18 No 1186 of 2018
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Toowoomba
DELIVERED ON:
20 November 2020
DELIVERED AT:
Brisbane
HEARING DATE:
14, 15 July 2020
JUDGE:
Porter QC DCJ
ORDERS:
1. I will hear the parties as to the form of orders to give effect to these reasons, including as to costs.
CATCHWORDS: SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicants apply under s. 41(1) of the Succession Act 1981 (Qld) for further provision of the deceased’s estate – where the applicants are the daughters of the deceased – where the respondent by election is the mother of the applicants and ex-wife of the deceased – where the main asset of the estate is a home situated on a 200 acre property – where the respondent by election continues to reside on the property – where the respondent by election receives NDIS payments – whether the respondent by election can continue to maintain the property in accordance with the terms of the will – whether it is necessary or desirable for the respondent by election to continue residing there – whether adequate provision is currently made for the applicants under the will
SUCCESSION – FAMILY PROVISION – CRITERIA FOR DETERMINING APPLICATION – GENERALLY – CIRCUMSTANCES TO BE CONSIDERED – where the respondent by election is the ex-wife of the deceased – where the deceased and respondent by election divorced in 1983 – where the nature of the relationship between the deceased and respondent by election was one of the main issues in contention at trial – where the deceased and respondent by election continued to reside under the same room from 1991 until the date of death in 2017 – whether there was a de facto relationship between the deceased and respondent by election– whether the respondent by election is otherwise an eligible application to apply for further provision.
LEGISLATION: Acts Interpretation Act 1954 (Qld) s. 32DA
Succession Act 1981 (Qld) ss. 5AA; 41(1)CASES:
Camernik v Reholc [2012] NSWSC 1537
Darveniza v Darveniza [2014] QSC 37
Gersbach v Blake [2011] NSWSC 368
Niebour-Pott & Anor v Pott [2020] QSC 7
Spencer v Burton [2016] 2 Qd R 215
Tomasevic v Travaglini (2007) 17 VR 100SECONDARY SOURCES:
John De Groot and Bruce Nickel, Family provision in Australia (LexisNexis Butterworths, 5th ed, 2016)
William Anthony Lee, Lee’s Manual of Queensland succession law (Lawbook Co., 8th ed, 2019)COUNSEL:
SOLICITORS:
K C Kelso for the applicants
A P Collins for the respondent executors
Respondent by election self-representedWonderley & Hall for the applicants
Bernays Lawyers for the respondent executors
Respondent by election self-representedTable of Contents
Summary
The trial
The witnesses
The facts
Early family life
Acquisition of Cambooya
The subdivided lots
April 2010: The Will
Attempts to sell the property 2012 to 2017
Carers of Mrs Fenton
The cards and my conclusion on the relationship
Events leading up to Mr Fenton’s death
General principles
Size of the estate
Assets
Cambooya
Antiques
The Ford Territory
Other items
Debt due from Ms Fenton-Anderson
Liabilities
Date of death
At judgment
Conclusion on net estate
Ms Fenton-Leslie as applicant
Personal and financial circumstances
Relationship with the deceased
Other relevant matters
Ms Fenton-Anderson as applicant
Personal and financial circumstances
Relationship with the deceased
Other matters
Mrs Fenton as applicant/competing claimant
Heath and financial position
Character of her claim: applicant or competing claimant?
Mrs Fenton not a de facto spouse
Mrs Fenton not a dependant former wife
Mrs Fenton not an eligible applicant
Character of Mrs Fenton as a competing claimant
Poor prospects of maintaining the Cambooya estate in accordance with the Will
Adequate provision not made for the applicants
The provision under the Will
At death
At trial
Mrs Fenton’s position
Adequate provision not made
The grandchildren
Late affidavit material from Mrs Fenton
Delays in delivering submissions
Mrs Fenton’s material delivered on 19 November 2020
The response to the Mrs Fenton’s material
The Court’s response to Mrs Fenton’s material
Provision to be made
Framework informing the making of provision
Provision for the applicants
Form of proposed orders
Summary
On 23 February 2018, Mr Joseph Fenton died aged 72, leaving a will dated 22 April 2010 (the Will) which had been prepared by Mr David Power, a solicitor, who is also one of the respondent executors (Mr Power). The primary asset of his estate is his 6-bedroom house and rural property at Cambooya, worth some $1m (the Cambooya property). The primary beneficiary of the Will was Mrs Suzanne Michelle Fenton, Mr Fenton’s ex-wife (Mrs Fenton). She received effectively all the personal estate (limited to some modestly valuable antiques and other minor chattels) along with a right to reside for life at Cambooya on certain conditions. The various alternative arrangements for Cambooya should she be unable to meet the primary conditions of her right to reside also largely favoured Mrs Fenton.
Mr Fenton has two adult daughters: the applicants Ms Fenton-Anderson and Ms Fenton-Leslie. They benefitted under the Will in a modest way and only if the conditions arose under the Will for sale of Cambooya. By originating application filed 19 November 2018, they applied for further provision from the estate of their father pursuant to s. 41(1) Succession Act 1981 (Qld).
The key disputes on the evidence focussed on three principal issues. They were:
(a)The closeness of the relationship between Mrs Fenton and Mr Fenton since their divorce and particularly in the last years of Mr Fenton’s life;
(b)The propriety of the conduct of the applicants in the last weeks of Mr Fenton’s life in relation to funds received from Mr Fenton, an Enduring Power of Attorney he made favouring them and his efforts to change the Will so as to favour the applicants; and
(c)The capacity of Mrs Fenton to continue to maintain the Cambooya property in accordance with the terms of the Will and the necessity or desirability of her continuing to reside there.
As to the first matter, for the reasons explained below, I have concluded that although Mr and Mrs Fenton lived under the same roof for many years after their divorce in 1983, Mrs Fenton was not Mr Fenton’s de facto spouse, nor was she his partner or female companion, at the least from 1991. Nor did they have any other kind of joint life, be it financial or social, except in the most superficial way. I have also concluded that in the last months of his life, at the least, Mr Fenton had real animus towards Mrs Fenton. On the other hand, however, Mr Fenton chose to permit Mrs Fenton to live for many years in the same house as him and chose partially and indirectly to support her financially in other ways, creating some obligation to her in the process.
As to the second matter, I find that Mr Fenton was directing the events freely and exercising his own will in the last weeks of his life and that his conduct was the result of his animus to Mrs Fenton and his wish to favour his daughters with his estate, so far as he could manage in the circumstances at the end of his life.
As to the third matter, I have concluded that Mrs Fenton is very unlikely to be able to maintain the Cambooya property in accordance with the terms of the Will. Further I have concluded it is neither necessary nor desirable for her to continue to live there to be able to have a secure home and proper personal support.
Bearing in mind those findings and my conclusion that both applicants otherwise made out an entitlement to further provision from the estate, I have concluded that further provision should be made for Ms Fenton-Anderson in the amount of $125,000 inclusive of costs and for Ms Fenton-Leslie in the amount of $175,000 inclusive of costs. I exonerate the whole of the estate except the Cambooya property in respect of those orders. Accordingly, the sale of the Cambooya property will be necessary. It would in any event probably have been sold to deal with the costs of these proceedings and the administration, much of which appear to have been incurred by Mrs Fenton’s conduct in these proceedings and in relation to the administration of the estate.
The trial
Before making findings of fact necessary for the determination of the application, I should make some comments about the way the trial was conducted.
The first day was taken up with Mrs Fenton’s application to adjourn the trial. She attended by telephone. The events on that day are particularised in my other judgment published today (the adjournment judgment). After determination of the adjournment application, I informed Mrs Fenton as to how the balance of the trial was likely to proceed and explained the process for submissions at the end of the trial. I suggested that she follow her medical advice as to participation in the trial and reminded her that Mr Collins and Mr Power would act reasonably to uphold the Will. Mr Collins also asked if Mr Power could give evidence first.
On day two of the trial, Mrs Fenton appeared again by telephone. Again, Mrs Fenton said she was unwell and I repeated that she did not have to participate and that I expected Mr Collins and Mr Power would act reasonably to uphold the Will. Mr Power was then sworn and adopted two affidavits as his evidence. He then gave some oral evidence updating the funds collected and paid for the estate by reference to statements tendered in the proceedings as exhibit 3. He also described the state of the property in March 2019, contrasting the poor condition in March with the much improved condition at the time of the trial.
Mr Power was cross examined briefly by Mr Kelso and for the balance of the morning by Mrs Fenton. Mrs Fenton’s cross examination varied between inappropriate speech making and irrelevancies on the one hand, and some effective questioning on the other. The cross examination was always vigorous. Her cross examination tended to become bogged down once it appeared Mr Power had given the evidence he could helpfully give.
I then informed Mrs Fenton that Mr Kelso’s case would begin after lunch and that he would call Ms Fenton-Leslie first. I told Mrs Fenton I would initially limit her cross examination to one hour but would extend it if the circumstances justified it. Mr Kelso led some short evidence updating the personal and financial information and then Mr Collins cross-examined. Mr Collins’ cross examination traversed many of the key events. It was not hostile cross examination but was sensitive to the issues of Ms Fenton-Leslie’s ability to observe the relationship between her parents and to explore how the events played out at the end of Mr Fenton’s life.
Mrs Fenton cross examined her younger daughter at some length. It was, perhaps unsurprisingly, an emotive cross examination, though some relevant evidence was obtained. Mrs Fenton’s attention was often focussed on obtaining evidence that she was a good mother, a matter which of itself was not of much relevance to the issues in this proceeding.[1] In the course of that cross examination, Mrs Fenton called in aid a box of cards which she contended demonstrated an on-going relationship between her and Mr Fenton. Ultimately, Mrs Fenton agreed to provide them to Mr Power. Mr Power agreed to drive to her home and collect them. During the day, Mr Power had also obtained a current statement of Mrs Fenton’s NDIS program which had earlier been mentioned by her. Mr Collins tendered that document in the executors’ case.
[1] See TS2-118 to 119 and see the emotive cross examination at TS3-12 to 13
Day three began with Mrs Fenton stating again that she felt unwell and me repeating my previous advice on that subject. Mrs Fenton continued to participate for the rest of the day.
Mr Collins tendered Mrs Fenton’s affidavits filed in the proceedings pursuant to Judge Koppenol’s order in September 2019 described in paragraph [18] of the adjournment judgment in the executors’ case.
Mrs Fenton then continued cross examination of Ms Fenton-Leslie. Ultimately, her cross examination went for about an hour and a half in total. Most of it was of limited relevance, though there was some relevant questioning on the way the family celebrated birthdays and Christmases together. I tried to assist Mrs Fenton by formulating questions from her statements and putting directly some of her most contentious propositions.
Mr Collins then tendered the cards which had been collected by Mr Power along with a USB with 55 current photographs of the Cambooya property. The cards were admitted on the basis that the handwritten text and dates, with a couple of minor and obvious exceptions, was Mr Fenton’s writing.[2]
[2] TS3-47.25
Ms Fenton-Anderson then gave evidence. Her examination related to descriptions of what was shown in the current photographs of Cambooya and expressing an opinion about parts of the card she considered were not in her father’s handwriting. Mr Collins then conducted a similar cross examination as that he had conducted of her sister.
As with Ms Fenton-Leslie, Mrs Fenton’s cross examination of Ms Fenton-Anderson was emotive and on one occasion it appeared to be deliberately and manipulatively so.[3] Despite some good periods of proper questioning, Mrs Fenton’s cross examination tended to the irrelevant and included frequent speeches rather than questions. Each of Mr Collins (doing his duty as he perceived it as counsel for the executors) and I attempted to assist Mrs Fenton in formulating proper questions and focussing on relevant issues.[4] I brought her cross examination to an end when satisfied that no further relevant and proper questioning was likely.[5]
[3] TS3-95 in the context of the discussion before and after that statement continuing to TS3-96.10 and see TS3-20.23 and 3-111.19
[4] See for example, Mr Collins’ intervention at 3-112.28.
[5] See 3-124
Mrs Fenton then agreed to go into the witness box. Mr Kelso briefly cross examined and then Mr Collins examined her on some issues relating to her ability to maintain Cambooya. I then explained the submissions process and directed evidence be provided on cost estimates for the represented parties. The matter then adjourned pending provision of written submissions.
In preparing these reasons, I noticed that Mrs Fenton’s first affidavit filed 25 January 2019 had not been read in the trial. It was considered in the adjournment hearing and was responded to in Ms Fenton-Leslie’s second affidavits. I have made that affidavit an exhibit in the trial.
On 17 November 2020, Mrs Fenton delivered further affidavits without notice nor leave. To the extent it contained submissions in the form of sworn statements, I have taken them into account in these reasons. To the extent they included further evidence, I have not taken them into account for the reasons given at the end of this judgment.
The witnesses
I had no reason to doubt Mr Power’s evidence, whether in writing or orally. Based on the evidence before me, he has approached his duty as executor with care and diligence, in respect of his evidence, in respect of his patient efforts to assist in putting evidence before the Court relevant to Mrs Fenton’s position and (so far as it was addressed in the evidence) in conducting the administration. I accept his evidence.
I also generally accept the evidence of the applicants for the following reasons:
(a)First, while I will make findings on particular contested factual matters and explain why I make those findings below, their version of contested events tends to be supported by other evidence and to be inherently probable in the light of those matters and of general experience;
(b)Second, during their cross examinations, they made reasonable concessions where they lacked knowledge or recollection of particular events. They did not take the many opportunities offered by Mrs Fenton’s cross examination to expand on or enhance their evidence about the contentious issues such as the relationship with their father[6]; and
(c)Third, they showed considerable forbearance during Mrs Fenton’s emotive cross examination. I did not perceive that their dislike of their mother’s conduct materially affected the reliability of their oral evidence. It would have been understandable if it had, but to their credit it did not. The highest it reached was a certain exasperation from time to time. The same might not be said for the whole of their affidavit evidence. At times their animus to their mother seemed to me to lead to a partiality for their father in their written evidence. It seems doubtful he was an easy person to live with himself. It is this aspect of their evidence which gives rise to my only reservation about their evidence. However, this aspect of their affidavits did not affect the integrity of their evidence on the key facts and I made some allowance for it in considering their more emotional written statements about their mother.
[6] A good example is when Ms Fenton-Leslie said that her father had never mentioned changing the Will before February 2018, even though it would have assisted her case to say so, and some general evidence about that would have been consistent with the narrative and hard to disprove: TS2-101
Mrs Fenton’s version of events was put by her in questions in cross examination, in her frequent speeches and in her affidavits. Quite often, witnesses she was examining agreed in, or did not dispute, her questions which contained direct factual propositions, and in that way some her version which went beyond her affidavits went into evidence. However, much of what she put or stated was of limited relevance to the issues in the case.
In making findings of fact, I have taken into account the version she gave informally during the trial, whether by questions she asked or unsworn comments she made during the hearing (designated as ‘assertions’ in this judgment). Ultimately, on the key issues in dispute, she did not assert or put in cross examination matters which credibly impugned the evidence of her daughters and Mr Power.
Further, observing Mrs Fenton through-out the trial, observing the tone and content of her correspondence with Mr Power, noting her frequent inconsistencies in her assertions during the trial and noting her capacity for savage and unfair judgments on others, I formed the firm view that she was not capable of giving a reliable account of events, and was quite capable of convincing herself of the truth of matters which were not true.
The facts
Early family life
Mr Fenton and Mrs Fenton married in 1975. Ms Fenton-Anderson was born in 1978 and Ms Fenton-Leslie in 1979. In 1980, their parents separated. Mrs Fenton swore that there was domestic violence at that time and that she obtained sole custody. Assuming that is correct, there does not appear to have been any repeat of such conduct, nor did the applicants refer to such conduct or refer to having any fear of their father, rather the contrary. Mrs Fenton swore that Mr Fenton had serious mental health issues. Again, assuming that was correct, those issues appear to have been managed thereafter. It was uncontentious, though, that Mr Fenton remained a heavy drinker through his life.
At the time of separation, Mrs Fenton lived with her two daughters at 14 Cornhill Street, Kenmore (Cornhill Street). Mr Fenton moved out of that house when he separated from Mrs Fenton.
Mr and Mrs Fenton divorced in about 1983. There was a property settlement in which Mrs Fenton received Cornhill Street. She and her daughters remained there until 1987.
Both applicants recall a close relationship between them and their father over this period. Although they would have been very young, there was no reason to doubt that evidence. It was consistent with the evidence of their later relationship with their father. Ms Fenton-Anderson did not comment on her parents’ relationship in this period. Ms Fenton-Leslie said that her mother had boyfriends seemingly around this period. Mrs Fenton said in cross examination that she maintained an intimate relationship with Mr Fenton after their divorce for some unspecified time. It is unnecessary to make a finding about this. It might well be, though, that their relationship in this stage was ‘complicated’ (to use a phrase from the zeitgeist), and it is possible the applicants did not know the details given their young age. However, there was no suggestion that the Fentons lived together under the one roof again for many years after their separation.
I mention here Mrs Fenton’s only sworn evidence about her relationship with Mr Fenton. In her original 25 January 2019 affidavit, she swears that Mr Fenton was the love of her life and that:
During our entire time of separation and divorce we continued as close as possible relationship motivated by me for the betterment of our two infant children …with fortnightly visits and trips to meet as a family and extended family.
This is not evidence that they were or lived as a couple, though it appears to relate to the period until 1991, before they again lived under the one roof.
In about 1986, Mr Fenton moved to a 10 acre block of land at Kratzke Street, Highfields in the Toowoomba region (the Highfields property). It appears that Mr Fenton’s work and family roots were in the Downs region. He built a house there in 1987. There was no direct evidence as to the source of the funds to buy the land and build the house at Highfields. Ms Fenton-Leslie said the purchase was with the financial support of Mr Fenton’s parents. Ms Fenton-Anderson said that it was bought by Mr Fenton’s father. Mrs Fenton asserted that Mr Fenton senior was wealthy. Precisely what the source of funds might have been is not clear. However, on the evidence before me, Mr Fenton had transferred Cornhill Street to Mrs Fenton and did not seem to have a high paying job. It is probable the funding came from his father. Relevantly, there was no basis properly to conclude that the funds for the purchase and construction at Highfields came from Mrs Fenton.
At about the time the Highfields house was built, Mrs Fenton sold Cornhill Street and bought a house in Unwin Street Highfields, a few minutes’ drive from Mr Fenton’s home. Mrs Fenton was a school teacher by profession and continued to work in that profession after she moved to Highfields. For some four years, the family appeared to continue the pattern of before. The applicants had a good relationship with their father and spent considerable time with him on weekends and holidays. They lived with their mother during the week. Their parents lived apart. Mrs Fenton did not assert or swear to anything specific about the nature of her relationship with Mr Fenton in this period, beyond the evidence noted in paragraph [32] above.
The family’s arrangements changed materially in 1991 however. The basic fact is not in dispute: in early 1991, Mrs Fenton and the applicants moved out of the house in Unwin Street and into Mr Fenton’s Highfields property. The dispute is about why. The applicants both gave evidence that the reason this occurred was that Mrs Fenton had a horse riding accident and that she could not care for the applicants. They swore their father then took all three in to care for them.
Mrs Fenton never really addressed this in her assertions or her affidavits. In cross examination, Mr Kelso questioned her about the circumstances. She denied that she had a riding accident at the time she moved back into the Highfields property. Beyond that, the issue was not examined by anyone. Oddly, given her voluble speech making on many subjects during the trial, Mrs Fenton did not give any other explanation for moving into Highfields that I could identify. The relevant question to resolve for the purposes of these proceedings is whether Mr Fenton permitted her to move into his house to recommence their relationship. I am not persuaded that he did:
(a)I have already said that I generally accept the applicants’ evidence as reliable and truthful. On this point, they were in agreement as to what motivated the change and Mrs Fenton never really suggested the contrary. Further, the applicants were about 12 and 13 at the time. They were at an age when they would have been able to understand these events;
(b)I found Mrs Fenton’s evidence in cross examination about this distinctly unconvincing and evasive (as was all her evidence in cross examination); and
(c)As will be seen, I accept the evidence that the couple lived separate lives at the Cambooya property. This is consistent with that being the position in the previous years at Highfields.
It appears, then, that Mrs Fenton recovered from her injuries within a few months but did not move out of the house. It might be thought this was explicable by the re-emergence of intimacy with Mr Fenton, but I am not persuaded that it was. Rather, Mr Fenton’s conduct at this time and thereafter appeared to me to be motivated by a wish to have the applicants living together with him and their mother, for the benefit of his daughters. It might also be speculated that he felt some sense of obligation to Mrs Fenton and willingness to support her. As I find below, that was certainly the objective effect of permitting her to live with him and use his properties for her own purposes.
So, the family lived together at Highfields for some years. Mrs Fenton started a horse stud business at the time. The funds appear to have come from a partial ill-health retirement or redundancy payment of $60,000 she received in about 1993.[7] She also had funds from the house she received as the property settlement on the divorce. The close proximity between this event and the riding accident alleged by the applicants is to be noted and is some objective support for the applicants’ explanation for the move to Highfields. She has not done paid work since then.
[7] TS3-105.24
It is convenient here to deal with the question of when Mrs Fenton became a recipient of the Disability Support Pension (DSP) or its previous incarnations. Mr Kelso tried to establish this fact in cross examination. Mrs Fenton’s evidence on this was deliberately evasive. I do not accept she did not know when she first obtained a DSP type payment. Her eventual volunteering of about 12 years earlier stuck me as the date she thought most convenient. The Centrelink documents she tendered showed that the pension identified in those documents had been paid since February 1998, showing her evidence on this issue was wrong. What is clear is that she did not work in paid employment after about 1991. Her only source of income was the operation of her horse stud. There is no evidence that was successful. Indeed, her present financial circumstances suggest it was unsuccessful, as was contended by the applicants.
For about 4 years or so after the move to Highfields, the family lived together. The applicants were enthusiastic participants in horse related activities. Their mother shared that interest. Their father did not. In about 1995, however, conflict between Ms Fenton-Anderson and Mrs Fenton led to the daughter leaving Highfields and moving to live and work at Marburg Equestrian Centre. In 1997, Ms Fenton-Leslie also moved into Toowoomba with her father’s support. The reason she gives was to get away from her mother. I accept that evidence. There is no suggestion, even from Mrs Fenton, that Ms Fenton-Leslie would wish to get away from her father. I do not exaggerate the nature of the conflict between mother and daughter at this stage. This move occurred at an age where a young person might need some freedom. Further, Ms Fenton- Leslie accepted that she had a close relationship with her mother in periods up to 2007. She returned to Highfields in 1998 when she had tenancy problems.
Mrs Fenton gave evidence that she made financial contributions to Highfields. I am not persuaded that she did, at least to any degree which is relevant to these proceedings. Her evidence on the subject was inconsistent and vague. She said she put $15,000 into the gardens and $25,000 into some stables. She also seemed to say that that $25,000 went into buying an expensive trailer. It was unclear if it was the same or a different $25,000.[8] Even if she made such contributions, she was living with Mr Fenton for free and running her quixotic horse stud there. (I say quixotic because the applicants swear that the stud never appeared to have much success and as I have observed, Mrs Fenton’s financial state supports that conclusion.)
[8] TS3-105
Acquisition of Cambooya
In about late 1999, Mr Fenton decided to sell Highfields and buy the much larger Cambooya property. The cause of that decision was contested. The applicants both gave evidence of Mrs Fenton’s nagging of Mr Fenton about the cancer risk of some electrical infrastructure nearby. Mrs Fenton asserted the reason was that the property was too small for the horse related activities of the family. Ms Fenton-Anderson’s oral evidence, however, was that her father informed her that if he bought the larger property, she might return to live with the rest of the family. This evidence had the ring of truth. It is consistent with Mr Fenton’s continuous efforts to have his daughters living together with him and their mother. (I refer again to the evidence from both applicants that although they had rough periods in their relationship with their mother, the relationship had periods of closeness up until about 2007. Mr Fenton would surely have been aware of that). It is also consistent with his support of Mrs Fenton’s ultimate efforts to sub-divide blocks nearby for each of the applicants to build and live on (discussed further below).
Mr Fenton’s plan of having both daughters living at Cambooya was successful but only for a short while. Ms Fenton-Anderson returned to live in the house at Cambooya with the rest of the family. There appears to have been no suggestion of Mrs Fenton leaving.
A great deal of work was done to put the property into good condition. Mr Fenton’s role was mowing (of which there was a good deal). He also funded expensive renovations of the house for some $200,000. Both girls worked on improving the property, particularly Ms Fenton-Anderson. They both complained about the lack of contribution from their mother. They say, and I accept, that she was on a disability pension by this time. I think it likely that Mrs Fenton was more active in giving orders to others than in doing the work required either to renovate the property or to conduct her stud business.
Importantly, both applicants gave evidence, both in statements and in oral evidence, that the Cambooya property was set up from the very start in a way which had Mr Fenton living entirely separately from Mrs Fenton. He lived downstairs, she lived upstairs. They did not share meals or socialise except for formal family occasions: birthdays and Christmas. The daughters never saw any affection between them. One or both of the applicants were at, or about, the Cambooya property fairly constantly until the last months of Mr Fenton’s life. They did not observe that this separate living ever changed. I accept that it did not.
I see no basis to infer that Mrs Fenton made any significant financial or personal contribution to the acquisition of or renovation and maintenance of the Cambooya property. She certainly benefitted from conducting her horse stud business from the property and from living there rent free.
Both of the applicants had left Cambooya within a few years but continued to live nearby and to visit the property frequently. By about 2005 both were in permanent relationships with their now husbands. Both were living locally to Cambooya.
The subdivided lots
In about 2005, Mrs Fenton conceived and pushed through the idea of sub-dividing family blocks from the Cambooya property (no-one disputed her pivotal role in this). Mr Power acted for Mr Fenton at the time and he recognised Mrs Fenton’s role in promoting the project. Despite some difficulties with planning approval, the properties were ultimately split off on various conditions. Each of the applicants was transferred one of the blocks. They gave evidence that they paid for the blocks, some $40,000. Both built houses on the lots.
Ms Fenton-Leslie and her husband did not live on their block for long. Her relationship with Mrs Fenton had decayed from a series of incidents and in about 2008, she and her husband and two small children moved to the Sunshine Coast. They sold their house in about 2010. Ms Fenton-Leslie had no contact with her mother for the next two years. She did have contact with her father. She said he spoke negatively about her mother and expressed a wish to sell Cambooya and move back to a house in Highfields.
Ms Fenton-Anderson continued to live on in her house on her sub-divided block and does so to this day.
April 2010: The Will
There are two pieces of evidence which might be thought to be consistent with Mr and Mrs Fenton being in an intimate relationship. One is the Will. Both applicants gave evidence that they did not know anything about the Will when it was made. Indeed, they did not know what it provided until their father died, except that they were told just before their father died by Mr Power that the Will took care of their mother.
Although Mr Power’s firm prepared the Will, he did not give evidence about the circumstances of its making or what, if anything, Mr Fenton might have said about his intentions in making a Will so favourable to Mrs Fenton and unfavourable to his daughters. Mrs Fenton also gave no evidence about this nor made any assertion about it during the hearing. Mrs Fenton’s trial submissions speculated as to Mr Fenton’s reasons, but it was no more than that.
The Will was made on 22 April 2010. Its operative provisions were as follows:
3. I GIVE DEVISE AND BEQUEATH all of my household chattels, contents of my home and any motor vehicles I may own at the date of my death to my former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
4. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to any Superannuation Fund of which I may be a member at the date of my death including all bonuses and interest earned thereon TO my Trustees upon the following trusts namely:-
(i)AS TO a three-quarters share thereof to my said former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
(ii)AS TO a one-eighth share thereof to my Daughter TONI LEIGH DELORES FENTON-LESLIE for her sole use and benefit absolutely.
(iii)AS TO the remaining one-eighth share thereof to my Daughter PETA DAVINA ALEXANDRA FENTON-ANDERSON for her sole use and benefit absolutely.
5.I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 in the County of Aubiny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold to my Trustee UPON the following Trusts namely:-
(i)to permit my Former Wife SUZANNE MICHELLE FENTON to reside therein and to use and occupy the same rent free for her lifetime or until her remarriage or until she is no longer capable of residing therein or using and occupying the same owing to some physical or mental infirmity or illness which must be certified to by a properly qualified medical practitioner or until she shall by writing under her hand indicate an intention to my trustees to no longer to reside therein and to use and occupy the same whichever shall first occur;
(ii)I DIRECT that whilst my Former Wife SUZANNE MICHELLE FENTON resides in and uses and occupies the said land and dwelling house she shall make payment of all rates, taxes, insurance premiums, maintenance costs and charges and other outgoings which may relate to the said land and dwelling house and that she shall keep the same in good and tenantable repair fair wear and tear expected;
(iii)should my Former Wife SUZANNE MICHELLE FENTON during her lifetime and provided that she has not then remarried be unable to reside in and use an occupy my said land and dwelling house because of some physical or mental infirmity or illness or because of her age and as a result of such infirmity or illness or because of her age she requires nursing home residence or alternatively she wishes to move into an aged persons hostel or other aged persons accommodation, then I DIRECT that my Trustee will at that time effect the sale of my said land and dwelling house and out of the net sale proceeds after providing for payment of all costs, commission and expenses in regard to such sale, make payment of any accommodation bond or other deposit required by any nursing home or other aged persons accommodation facility to enable residence in or occupancy of that facility by my Former Wife SUZANNE MICHELLE FENTON and out of any balance then remaining that my Estate will make payment of any periodical payments required for the residence or occupancy of my Former Wife SUZANNE MICHELLE FENTON in such nursing home or other aged persons facility until her death.
(iv)UPON the death of my Former Wife SUZANNE MICHELLE FENTON or UPON her remarriage or upon her vacating my said land and dwelling house because she is no longer capable of residing therein or using and occupying the same owing to some physical or mental infirmity or illness or following her indication of an intention to my Trustees to no longer reside therein and to use and occupy the same and in circumstances where the provisions of subclause 5(iii) of this my Will do not become effective then to transfer my said land and dwelling house UNTO my trustees upon the following trusts namely:-
(a) as to a one half share thereof to my said Former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely;
(b) as to a one quarter share thereof to my said Daughters TONI LEIGH DELORES FENTON-LESLIE and PETA DAVINA ALEXANDRA FENTON-ANDERSON in equal shares as tenants in common for their respective use and benefit absolutely;
(c) as to the remaining one quarter share thereof upon trust for such of them my grandchildren as shall survive me and shall have attained or shall live to attain the age of Eighteen (18) years in equal shares as tenants in common for their respective use and benefit absolutely.
(v)PROVIDED HOWEVER that should the provisions of subclause 5(iii) of this Will become effective THEN I DIRECT that my Trustees shall upon the death of remarriage of SUZANNE MICHELLE FENTON make payment of the net balance then remaining out of the sale proceedings of my said land and dwelling house including the amount of any refund of any accommodation bonds that my Estate may have paid on account of my Former Wife SUZANNE MICHELLE FENTON for any nursing home or aged persons accommodation UNTO my trustees upon the following trusts namely:-
(a) as to a once half share thereof to my said Former Wife SUZANNE MICHELLE FENTON for her sole use and benefit absolutely;
(b) as to a one quarter share thereof to my said Daughters TONI LEIGH DELORES FENTON-LESLIE and PETA DAVINA ALEXANDRA FENTON-ANDERSON in equal shares as tenants in common for their respective use and benefit absolutely;
(c) as to the remaining one quarter share thereof upon trust for such of them my grandchildren as shall survive me and shall have attained or shall live to attain the age of Eighteen (18) years in equal shares as tenants in common for their respective use and benefit absolutely.
6. I GIVE DEVISE AND BEQUEATH the rest and residue of my real and personal estate of whatsoever nature or kind and wheresoever situate of which I may die seized or possessed or over which I may have any power of disposition or control UNTO my Former Wife the said SUZANNE MICHELLE FENTON for her sole use and benefit absolutely.
The Will leaves all Mr Fenton’s chattels (thought at that time to be worth a considerable sum), 75% of his superannuation, and most of the benefit of Cambooya to Mrs Fenton. The provisions relating to Cambooya are a little ambiguous. I construe the provisions as follows:
(a)Mrs Fenton has a right to reside at Cambooya until she remarries or is no longer capable of living there, but the executors can only reach that conclusion on certification by a doctor that that is so;
(b)Mrs Fenton has to pay the sums and do the work identified 5(ii) in the Will;
(c)If Mrs Fenton becomes incapable of living at Cambooya and wants to move into aged care, the trustees are to sell Cambooya and use the funds to pay an accommodation bond and the balance to pay any ongoing accommodation costs and on death or remarriage, the remaining fund is to be paid a half to Mrs Fenton (or presumably her estate), a quarter to the applicants and a quarter to Mr Fenton’s grandchildren; and
(d)If Mrs Fenton remarries, leaves the property because she is not capable of living there or leaves by choice without seeking to move into aged care accommodation, then the trustees must sell the property and give a half of the proceeds to Mrs Fenton, a quarter to the applicants and a quarter to the grandchildren.
There are a couple of ambiguities in these provisions. The most significant is what happens if Mrs Fenton does not make the payments and meet the obligations imposed by clause 5(ii). The various contingency provisions in 5(iii) to 5(iv) do not in terms apply to that situation. Nor does clause 5(i) provide for that circumstance as a condition on the right to reside. On the other hand, a construction of the Will which permitted Mrs Fenton to not comply with clause 5(ii) without a consequence should be resisted because it would be apt to frustrate those other provisions. It could result in wasting of the asset or compulsory sale for unpaid rates or taxes.
No submissions were made on this aspect of the proper construction of the Will nor how it would be likely to apply into the future (for the purposes of identifying the provision for the applicants under the Will). As to the former matter, in my view, if Mrs Fenton failed in a consistent and substantial manner to meet the obligations under clause 5(ii), on the proper construction of the Will, the provisions of clauses 5(iii) or 5(iv) would apply. That is, if in that situation, Mrs Fenton wanted to move into aged care accommodation, clause 5(iii) would apply. Otherwise, clause 5(iv) would apply. I deal with the latter matter in paragraphs [158] – [164] below.
There is no specific evidence as to the nature of the relationship between Mr and Mrs Fenton around April 2010. The evidence of the applicants as to why their father made the Will in those terms is speculative and irrelevant. The Will leaves no room to question, however, that Mr Fenton believed at the time that he should provide for Mrs Fenton’s financial security. He later came to resile from that position, but that was the position at 2010. Equally, however, neither applicant refers to any apparent change in the relationship over the period they observed their parents under the same roof.
The Will does not refer to Mrs Fenton with any affection. It uses the formal term “my Former Wife”. Of course, the phrase might just be one adopted by the drafter from a precedent. It is not a major point, but it is noticeably distant in tone if the suggestion was that this provision was motivated by an on-going de facto relationship.
Attempts to sell the property 2012 to 2017
From about 2012, both applicants say their father expressed real animus towards their mother and her horses and meeting their expenses and said that he wanted to sell the Cambooya property. Ms Fenton-Anderson gave this evidence:[9]
21.3Dad appointed Earle Norris Real Estate to sell the property. There were maybe 3 house inspections – each proving pointless. Not because no-one turned up, but because when interested buyers turned up, Mum would run out and abuse them. She’d tell them to “fuck off, the place’s not for sale”, “get of [sic] my fuckin property” or “I’m not going anywhere, you’ll have to carry me off this place” and various other words to that effect. All said with the direct intention of thwarting a sale, which she was successful at doing.
21.4In the end, the agent said to Dad that he wasn’t prepared to waste his time anymore and withdrew his services. Dad then got another agent, but the same thing happened again, and again. Dad went through 5 agents between 2012 and 2017.
21.5It was also frustrating for John and I, because whenever Dad would organise a [sic] inspection with an agent and some potential buyers, we’d spend a lot of our time and money cleaning and repairing fences, repainting the patios, revamping the gardens, cleaning inside the house and much more work around the property. This work also included cleaning out and gerniing [sic] the block of ten stables, which Mum had used and never cleaned out, leaving layer upon layer of horse manure. This, in itself, took John nearly three days solid to clean out.
[9] Paragraphs 21.3 – 21.5 of Ms Fenton-Anderson’s affidavit sworn 19 November 2018 (Exhibit 14).
I accept this evidence. This is compelling evidence of the state of the relationship between Mr Fenton and Mrs Fenton at that time. Aspects of this evidence might not be in strictly admissible form. It is unclear for example, whether Ms Fenton-Anderson was present for the discussion in paragraph 21.4 or is recounting a hearsay version. However, it is tolerably clear that the key facts in this passage were likely to have been seen or heard by her directly. I draw that inference.
Ms Fenton-Anderson goes on to detail her mother’s other conduct to frustrate a sale of Cambooya with some particularity.[10] I accept this evidence. It was not contradicted by other evidence nor by assertion from Mrs Fenton. Further, the conduct reflected a sense of entitlement in relation to Mr Fenton’s financial support which was evident from Mrs Fenton’s reliance on him since 1991 and her conduct in relation to these proceedings. In that regard, as the adjournment judgment discloses, she has resisted the resolution of these proceedings with determination and considers that the applicants simply have no call at all on their father’s estate beyond the Will. That submission was made again in the November 17 material.
[10] Paragraphs 21.9 – 21.21 of Exhibit 14.
Another consideration which supports the credibility of Ms Fenton-Anderson’s account is Mr Fenton’s conduct in the last months of his life.
Carers of Mrs Fenton
From about 2015 to 2017, first Ms Fenton-Leslie then Ms Fenton-Anderson worked as their mother’s paid carer. That coincided with periods of marital discord for both applicants. Ultimately, Ms Fenton-Leslie moved back in with her husband and commuted regularly to care for her mother. Ms Fenton-Anderson took over in 2017. Neither found the work easy or successful. However, both said, and I accept, that their father did not want to undertake the task, even though he was capable of doing so over that period. They also speak of their father’s increasing hostility towards their mother over this period.
The applicants speak of this period being particularly difficult, caring for their mother and doing considerable work caring for her horses. I accept that evidence. Mrs Fenton was on her own account extremely disabled with medical problems. She could not care for the horses and they did not care for themselves. She had no money to pay for their care and there is no evidence the business was a success. I accept the horses were maintained by the applicant’s labour and their father’s money.
Ultimately there was a falling out between Mrs Fenton and Ms Fenton-Anderson in late October 2017. The circumstances of that falling out were disputed between them. Ms Fenton-Anderson alleged that Mrs Fenton confronted her and threatened her in front of her daughters and threw a metal object at her. Mrs Fenton suggested in cross examination that no such event occurred. I disagree. There is a contemporaneous record of her state at that time (29 October 2017) created by the Toowoomba Hospital where she was assessed by the Emergency Department. There is a contemporaneous Mental Health Services Triage document in evidence.[11] Those documents disclose that she was in a highly agitated state that day. They also disclose that she reported that she “Identifies many stressors at home with ex-husband requiring care and close to dying secondary to alcoholic liver disease. Reports ex-husband has paranoid schizophrenia and often harms her/threatens her life”. This reporting of violence is directly inconsistent with the evidence of the applicants and the evidence and assertions of Mrs Fenton. The assertion that Mrs Fenton was caring for Mr Fenton is directly inconsistent with the reality that she was on the DSP and required the care of her daughters daily for her numerous problems. It was also inconsistent with the evidence that Mr Fenton was not diagnosed with his terminal condition until some weeks later. Her account of this day is not reliable. It is clear however that there was some kind of dramatic confrontation. I accept Ms Fenton-Anderson’s version.
[11] Pages 606 – 612 of Exhibit 16
I also note that Mrs Fenton made clear admissions of the separate living arrangements in the house: reporting self-contained living arrangements. This I find to have been correct. This reporting reflects in my view, Mrs Fenton’s capacity to state whatever appears to her interests to assert, whether correct of not.
On that same day, Mr Fenton left Cambooya to stay with Ms Fenton-Leslie. He did so under Police supervision and in obvious fear of Mrs Fenton.
The cards and my conclusion on the relationship
How, one might ask, do my findings that there was no intimate relationship between Mr Fenton and Mrs Fenton sit with Mrs Fenton’s cards? Some observations should be made about their content which favour some kind of close relationship:
(a)They cover a period up to 2017, which according to the other evidence was a period where Mr Fenton was seemingly at his wits end with Mrs Fenton; and
(b)They include birthday, Christmas and even Valentine’s Day cards, including Valentine’s Day cards with romantic imagery (is there any other kind though?).
Some explanation exists for the birthday and Christmas cards in the evidence of each of the applicants under cross examination by Mrs Fenton that it was common for the family to celebrate those festivals together when occasion allowed. Card giving was, according to Ms Fenton-Anderson, something her father always did. One can imagine him doing so as part of the family festival. That does not necessarily explain all the cards, nor the Valentine Day’s cards.
What is notable in all the cards, however, whatever the greeting card sentiments, was the lack of any form of intimate or loving salutation written by Mr Fenton. The most common salutation was for Mr Fenton to express the hope that Mrs Fenton would be healthier in the future. One could well imagine him saying that, given her health history. The only exception is his comment in the 2016 birthday card that “I do care about you in my strange way”. That he did care about her was obvious from the terms of the Will. However, it is not really the salutation of a person in a loving or intimate relationship.
It should also be noted that around the time he made the Will he was involved in another relationship, which Mrs Fenton still expressed hostility about at the trial, evident in the tenor of her cross examination relating to that subject.
Ultimately, I find that there was no de facto or other intimate or personal relationship between Mr Fenton and Mrs Fenton from at least the late 1980s. Mr Fenton plainly felt some kind of obligation to Mrs Fenton to provide for her, which he gave effect to by letting her use Cambooya, by paying some bills for her stud business and by making provision for her in the Will. And in my view, though he frequently deeply resented her, for that reason he chose not to eject her from his house or his life until his crisis in late 2017. It is to those events we now turn.
Events leading up to Mr Fenton’s death
The drama involving Ms Fenton-Anderson and her mother on 29 October 2017 (see paragraph [66] above) precipitated another drama involving Mr Fenton. The following is the account given by the applicants. I accept their account.
Following the incident with Ms Fenton-Anderson, Mrs Fenton went back to her house. Mr Fenton soon came down to his daughter’s home and told her he did not want to go back home because Mrs Fenton was in a rage. Ms Fenton-Anderson arranged for Ms Fenton-Leslie to come and collect their father and take him to her home. Ms Fenton-Leslie did so. When she arrived, the police were in attendance. Mr Fenton went with the police to his home and packed and left with Ms Fenton-Leslie. Mrs Fenton was abusing him as an alcoholic and schizophrenic (as she reported to the Hospital, it may be recalled).
Mr Fenton returned to Cambooya a couple of weeks later. His stay was brief. Just after Christmas, Mrs Fenton said he was behaving strangely. He was taken to hospital and on 2 January 2018, he was diagnosed with advanced cancer. While in hospital, Mr Fenton asked the applicants to obtain his will, Enduring Power of Attorney and Advanced Health Directive. They went to the Cambooya property and found the Will only. They contacted Mr Power. He prepared an Enduring Power of Attorney for Mr Fenton. It made the applicants his attorneys. Mr Fenton executed it.
While there was some ambiguity as to where this document was signed, I have no reason to doubt that it was prepared by Mr Power at Mr Fenton’s direction and that Mr Fenton had capacity to make it. Apart from the medical assessment,[12] I place reliance on Mr Power’s assessment at the time. Mr Power had known Mr Fenton for many years. He was in a good position to judge the cognitive powers of the person before him as compared to the person he had dealt with over previous years.[13]
[12] Paragraphs 22.60 – 22.63 of affidavit of Toni Leigh Delores Fenton-Leslie sworn 19 November 2018 (Exhibit 7)
[13] TS2-36
Mr Fenton did not want to return to his own home. He never did. He asked to return home with Ms Fenton-Leslie. She agreed. Mrs Fenton made numerous calls on his telephone, leaving abusive messages. He refused to answer to take calls. He had no more contact with her until he died.
A few weeks later, Mr Fenton told Ms Fenton-Leslie that he wanted to make a new will. She arranged for him to see a solicitor nearby her home on the Sunshine Coast, rather than in Toowoomba. Mr Fenton saw a solicitor, Mr Douglas. The applicants were not present. Mr Fenton gave Mr Douglas instructions to prepare a will leaving his estate to the applicants. The diary note demonstrates that Mr Fenton accurately stated his main assets (though he did not specifically mention the chattels) and the persons he wished to benefit. Mr Douglas asked for a medical assessment of capacity. There is nothing in the note or Mr Douglas’ later email to suggest that Mr Douglas’ impression of Mr Fenton was that Mr Fenton did not understand what he was doing. His concern about capacity appears to have arisen from the kind of the medical condition suffered by Mr Fenton and the effect it might be having. It is to be recalled that Mr Douglas did not know Mr Fenton. Mr Douglas required Mr Fenton to obtain a medical assessment before Mr Douglas would prepare a will.
The appointment with Mr Douglas was on 13 February 2018. The appointment for a capacity assessment was made for 19 February 2018. It is wrong to suggest that there was any determination by a doctor that Mr Fenton did not have capacity at that time. What occurred is this:
22.60On Monday 19 February 2018, I took Dad to his Doctor’s appointment. He seemed affected by the extremely hot weather we were having. Walking from the car into the Doctor’s surgery was a struggle.
22.61Dad was not feeling well enough to complete the mental test at this time. He repeatedly apologised to me for wasting my time and said he was so sorry that he had let this happen. I assured him that it was okay and that I didn’t want him to worry about it.
22.62Without the Doctor’s letter, Dad knew that he would be unable to sign his new will. Dad told me “I’m so sorry. You’ll need to fight her”.
22.63Dad also said that he wanted Peta and I to access the money he had in his savings account to pursue legal action to get the property sold and to carry out his wishes. He said “you [Peta and I] need to use the money to have my previous will made void”.
I am conscious again, that the form of this evidence leaves a little to be desired. The key statement in paragraph 22.62 first sentence, speaks of what was known by Mr Fenton (the same might be said of the first sentence of paragraph 22.61). His state of mind is of course something which can be inferred from evidence of things told to him or said by him. The evidence is not cast in that form. However, there is admissible evidence from the second sentence from which one can properly infer, taken with the evidence from Mr Douglas, that Mr Fenton formed the view that without the assessment he could not proceed with the new will.
That raises the question of why he abandoned the task. He could have tried another day for an assessment. He could have approached Mr Power to assist. It might be that he was just too ill to make any further efforts. That is what he said to Ms Fenton-Anderson. That is probably likely given that he died just four days later. That is the conclusion I reach. I do not think it reflected an ambivalence about changing the Will.
The last significant event to deal with is the transfer of Mr Fenton’s cash holdings to his daughters. Again, the central facts are clear: just prior to his death, $40,000 was transferred out of Mr Fenton’s Commonwealth superannuation account: half to each applicant. Ms Fenton-Leslie’s evidence as to how this transfer occurred appeared at first inconsistent. In her first affidavit she says that she transferred the money. In evidence she said the transfer was done on phone banking and that her father made the transfer. Ultimately, however, I do not think this point of detail is material. The gravamen of the evidence is consistent and the cross examination on it was detailed. The real issue is that which was put to Ms Fenton-Leslie by Mr Collins: did the applicants just help themselves to Mr Fenton’s funds? She denied that. I accept that. Not only because I have accepted the applicants generally as witnesses of truth, but also because the conduct was consistent with Mr Fenton’s behaviour towards Mrs Fenton around that time, particularly his instructions to change the Will and his evident belief that she was going to have to be ‘fought’.
This subject was the cause of much agitation by Mrs Fenton both before trial and during the trial. It is clear she considers these events to be indicative of exploitation of Mr Fenton by the applicants. I reject that view.
Mr Fenton died the next day, on 23 February 2018.
General principles
The applicants apply for further provision from their father’s estate under s. 41(1) Succession Act 1991. That section provides:
41 Estate of deceased person liable for maintenance
(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.
Fourth, there is an affidavit of 70 paragraphs which includes a somewhat disordered collection of further allegations which can be summarised as follows:
(a)Paragraphs 1 to 15 appears to restate the support available under the NDIS without explaining how it provides for maintenance of the property outside the area of the house and surrounds. The terms of the package are already in evidence (see paragraph [129] above); and
(b)Various allegations of misconduct and criminal conduct are alleged against her daughters (and their solicitor) reaching back to their teenage years. There are also new allegations of criminal conduct by them since the hearing. Most of this is speculation and mere assertion, tinged with paranoia. There is no evidence of any police investigation, much less charges being laid.
Finally, there is a copy of a letter apparently given to Mr Fenton’s medical team in early February 2018. Presumably it is provided to show Mrs Fenton’s care for Mr Fenton. In fact, it reads as an unfair attack on her daughters. Why Mrs Fenton would hold a copy of a handwritten letter seemingly provided to Mr Fenton’s medical staff is not explained.
The response to the Mrs Fenton’s material
On receipt of Mrs Fenton’s material, my associate informed the applicants and the executors that although I would consider their submissions on Mrs Fenton’s material, I did not require any submissions. I notified the parties that judgment would be postponed only until 9.00am Friday 20 November 2020. The applicants notified a wish to deliver submissions later on Friday. At first I acceded to that request but, on reflection, it seemed to me that no good purpose could be served by any further delay or cost being incurred.
The Court’s response to Mrs Fenton’s material
As explained above, some of Mrs Fenton’s material, though in the form of an affidavit, comprised submissions on the issues in the trial. I have taken those into account.
The other affidavits contain further evidence which Mrs Fenton now seeks to rely on trial. She does so without seeking leave to re-open her case, nor advancing any explanation as to why the evidence is only being delivered now, four months after the close of evidence and two months after the other parties have delivered submissions.
I have considered whether my duties arising out of Mrs Fenton’s self-represented status required me to draw to her attention the need to apply to re-open her case. However, my duty is, so far as possible, to ensure a fair trial.[40] The Court must be careful not to take steps in aid of the conduct of the proceedings by the self-represented person which are unfair to the represented party. I refer to the propositions in paragraph [61] of the adjournment judgment. In my view, my duty did not call for me to invite Mrs Fenton to apply to re-open her case nor to assist her in doing so. The primary reason for that is that it would be an exercise in futility. Such an application would inevitably fail for the following reasons.
[40] Tomasevic v Travaglini (2007) 17 VR 100 at [141] to [142]
First, for the reasons given in both the adjournment judgment and this judgment, much of the cost and delay in the proceedings has been caused by Mrs Fenton’s conduct. It would require a compelling case to permit the evidence to be re-opened at this late stage, with all the additional cost and delay which would accompany such a step.
Second, with only a few minor exceptions, the evidence Mrs Fenton seeks to lead was plainly available to her prior to trial. There is no significant fresh evidence. By her conduct Mrs Fenton seeks to obtain the adjournment which was fully argued and decided against her at the start of the trial. Even at that time, I had concluded that there was no credible excuse for her not having filed the material she sought to rely on at trial: see paragraphs [69] to [71] of the adjournment judgment. In those circumstances, the attempt to lead this evidence now is as an abuse of process. That is particularly so given the explanation given at the end of the trial referred to in paragraph [218] below.
Third, as was the case with the pre-trial period, Mrs Fenton has delivered this material without complying with numerous directions for the filing of her submissions (much less her material) and without giving any advance notice of her intention to deliver affidavit material at all.
Fourth, while Mrs Fenton might say that she did not understand the limits of submissions, such a statement would not be justified in the circumstances of this trial. The nature of trial submissions and the difference between that kind of document and evidence was explained to Mrs Fenton at the trial (both at the start of the trial and at the end of the trial) as was the fact that the time for her to lead evidence had passed.[41]
[41] TS1-90 to 91TS3-156 to 158.24
Fifth, to the extent it is credible, for the reasons explained in paragraphs [202], [203], [208] and [209](a) above none of the further evidence which Mrs Fenton wishes to lead materially impacts on the resolution of the issues in the trial, given the evidence which is already before the Court. The balance of the evidence is of no persuasive force: see paragraph [209](b) above.
Finally, I refer to the passages set out in paragraphs [54] to [58] of the adjournment judgment. There must be an end to litigation, and that proposition applies with particular force to this proceeding, where so much cost and delay has marked what should have been a modest and straightforward proceeding. Further, it is also the kind of case where considerable emotional stress arises merely from the on-going existence of the litigation.
For those reasons, I have not invited an application by Mrs Fenton to re-open her case. I have made the documents delivered by email from Mrs Fenton exhibit 20 in these proceedings.
Provision to be made
Framework informing the making of provision
As I have already found, Cambooya would almost certainly have to be sold, even if the Will stood unaffected by any order for provision, and in any event, Mrs Fenton can be just as well accommodated in a less expansive property. I have not overlooked her remaining horses, but is seems very unlikely she will be in a position properly to care for them in the long term without Ms Fenton-Anderson’s support.
Further, in assessing the size of the estate:
(a)The antique furniture is of some value and that should be exonerated from these orders and included as a benefit retained by Mrs Fenton. She should be able to realise those items as she chooses, subject to finalisation of the estate; and
(b)Allowing for some work to put the property in its best shape for sale, costs of sale and the risk of it underperforming the estimate in the current economic climate, I estimate the net proceeds of sale of the property at $900,000.
It is also important to consider the costs which may be claimed against this fund in considering Mrs Fenton’s final position. The applicants estimate costs at a total of about $100,000 for their proceedings on top of the costs order made. That sum might or might not be sustainable if challenged. However, it does not sound unrealistic. To try to minimise further disputes, I intend to make an order for provision for the applicants on an inclusive of costs basis. I will adopt that figure for purposes of calculation. (To be clear, though, nothing in these reasons forecloses the issues which might arise on a solicitor client assessment.)
Next there is the costs of the executor. In that regard I should observe that despite Mrs Fenton’s extensive criticisms of Mr Power, I have seen nothing in his conduct which was examined at this trial which led me to believe he has not conducted the administration and the proceedings in accordance with his duty. He estimates costs to the end of the administration of some $180,000, though the true figure depends on how Mrs Fenton conducts herself in the future. While that appears high based on the executors’ limited role in the proceedings, I observe that Mrs Fenton’s conduct has involved the executors in a great deal of pointless correspondence and attendances.
In respect of both the executors and applicants’ costs, I find that Mrs Fenton’s obstruction and delay have caused what should have been a fairly straight forward claim which would almost certainly have been settled at mediation to become a complex case requiring a three day trial. Without authoritatively ruling on every step taken and cost incurred by the applicants and the executors, I observe that Mrs Fenton was the author of much of the misfortune suffered by all parties on the costs front.
Provision for the applicants
Bearing those matters in mind, I order further provision be made for Ms Fenton-Leslie in the amount of $175,000 inclusive of costs and for Ms Fenton-Anderson of $125,000 inclusive of costs.
I intend that the grandchildren share equally the sum of $50,000.
Assuming the net proceeds of $900,000, that should leave some $550,000. Assuming executors’ costs and outlays along with the liabilities of the estate at some $200,000, that should leave Mrs Fenton with a capital sum of about $350,000 along with the furniture (about $29,000) and other chattels. That sum should be received by her absolutely. Together with her pension and NDIS program, that should sufficiently secure her position in a modest home or care facility. To the extent it does not, though, much of the blame lies with her manner of conducting these proceedings and the administration.
I make this further comment about Mrs Fenton’s future financial position. The effect of my orders will be that $350,000 is paid out of the estate to the applicants and allocated to the grandchildren from the proceeds of the sale of Cambooya.
Mrs Fenton will benefit from the balance, whatever that is. If Mrs Fenton co-operates in an efficient and prompt sale of Cambooya at its best advantage and co-operates in the efficient completion of the administration of the estate, then her final financial benefit from Mr Fenton’s estate will be greater. However, if she chooses to continue to conduct herself in the manner that she has to date in the administration and these proceedings, the costs are likely to impact on her share of the estate. It is her choice.
Form of proposed orders
It is necessary that orders be made to give effect to the provision ordered by these reasons. I will hear the parties on the form those orders should take. However, I propose the following draft orders for comment by the parties:
1. The Will be construed and carried into effect as if Clause 5 was varied so as to refer to the Executors not the Trustees in the chapeau provision and to replace the current clauses 5(i) to (v) with the following clauses:
(a)That the Cambooya property be sold forthwith by the Executors;
(b)That the Executors pay from the net proceeds of sale the following sums:
(i)To Toni Leigh Dolores Fenton-Leslie the sum of $175,000; and
(ii)To Peta Davina Alexandra Fenton-Anderson the sum of $125,000;
(c)That $50,000 from the net proceeds of sale be held on trust to be shared equally between such of Mr Fenton’s grandchildren as survive him and shall reach 18 years of age, with each grandchild’s share to be calculated and paid on that grandchild reaching 18; and
(d)That the Executors hold the balance of the sale proceeds as part of the residue of the estate;
2. That the applicants bear their own costs of the proceedings including reserve costs.
The intended effect of this draft order is to secure payment of the provision ordered and the trust for the grandchildren (clause 1(c) probably needs work), with the balance to be part of the residue to which Mrs Fenton is entitled after due administration under clause 6 of the Will. If Mrs Fenton co-operates and acts reasonably in the completion of the administration the amount will be higher. If she does not, it will be lower.
I will also hear the other parties as to any other orders for costs which ought to be made and any other orders sought.
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