Jenal v Wolfenden
[2009] QDC 127
•13 May 2009
DISTRICT COURT OF QUEENSLAND
CITATION: Jenal v Wolfenden [2009] QDC 127 PARTIES: CHERYL MAREE JENAL
(Applicant)v
SANDRA KAY WOLFENDEN
(Respondent)FILE NO: 52 of 2009 PROCEEDING: Application for extension of time – Succession Act DELIVERED ON: 13/05/2009 DELIVERED AT: Southport HEARING DATE: 01/05/2009 JUDGE: C.F. Wall Q.C. ORDER: Application for extension of time granted up to and including 9th February 2009. Applicant to pay Respondents costs of and incidental to the proceeding to be assessed on the standard basis unless agreed. CATCHWORDS: SUCCESSION ACT s41(8) – where proceedings for provision were not instituted within 9 months after the death of the deceased - application for extension of time – necessity for applicant to establish an adequate explanation for the delay and an arguable case on the merits – relevant considerations. LEGISLATION: Succession Act 1981 (Qld), s.41(8). CASES: Hills v Chalk v Others 2008 QCA 159 COUNSEL: Applicant: Mr C Forrest
Respondent: Mr M CampbellSOLICITORS: Applicant: O’Reilly Sochacki Lawyers
Respondent: National Seniors Lawyers
HIS HONOUR: This is an application for an order that the
applicant's application for provision filed on the 9th of
February 2009 be heard and determined, notwithstanding that it
was instituted outside the nine-months' time limit for making
the application. See section 41(8) Succession Act.
The deceased is Margaret Ann Myers. The following details are
not in dispute and are taken from the applicant's outline of
argument.
"2.3 The deceased died on 2 September 2007 at 68 years of
age. She was survived by her husband, John Edward Myers, and
their two adult daughters, Marcia Fife, born 17 April 1961
(aged 46 at the deceased's death) and Cheryl Maree Jenal (the
applicant) born 23 May 1962 (aged 45 at the deceased's death).
2.4 The deceased left a will, dated 4 January 2006. The
respondent (unrelated to the deceased but a friend of Marcia
Fife) obtained a Grant of Probate from the Supreme Court of
Queensland on 6 December 2007, being the sole appointed
Executrix and trustee of the will.
2.5 The estate of the deceased is said (by the solicitor
acting for the estate) to consist of the following:-
(i) all of the right, title and interest in the residential
real property appraised to be valued at $295,000 to $305,000;.
(ii) $9,706.11 - being the balance of money at bank after
payment of funeral expenses;.
(iii) a motor car - value $4,000;
(iv) chattels owned jointly with the deceased's husband -
value $1,000.
2.6 By her will, the deceased left a life estate in the
residential real property to her husband, John Edward Myers,
and, upon his death, that property was to be sold and specific
legacies totalling $145,000 were to be paid to five of her
grandchildren (there are eight grandchildren altogether - only
one of the grandchildren left a legacy is a child of the
applicant - the other three children of the applicant were
left nothing by their grandmother) before the total of the
residue was left to the applicant's sister, Marcia Fife, the
applicant being left nothing.
2.7 By originating application filed on 9 February 2009, the
applicant applies for provision to be made in her favour out
of the estate. That originating application was filed just
over eight months outside the nine-month limitation period
(that ran out on 2 June 2008)."
The applicant's father died on 19 June 2008.
Relevant to the exercise of the Court's discretion are:
(a) Whether there is an adequate explanation for the delay;
(b) Whether there would be any prejudice to the
Beneficiaries;
(c) Whether there has been any unconscionable conduct by the
applicant; and
(d) The strength of the applicant's case.
See Hills v. Chalk and Others, [2008] QCA 159, at paragraph [75].
Mr Michael Campbell, for the respondent, did not suggest any
prejudice beyond a diminution in interests of the
beneficiaries, should the application succeed, or rely on
unconscionability. The principal issues for consideration are (a) and (d). It is also not suggested that the failure to make the present application within time has adversely impacted on the affairs of the beneficiaries. See Hills at paragraphs [78] and [79].
In paragraph 22 of his outline of argument, Mr Campbell
submitted:
"The beneficiaries will have their entitlements reduced
substantially as a result of a successful application being
made by the applicant then I am of the view that the Court
would take such a matter into consideration.(sic) They have been prejudiced by not receiving their benefits because of the
delay in bringing the application."
This was not though pursued on the hearing of the application,
and it was certainly not then advanced as a reason for refusing the application.
Three affidavits were filed, two by the applicant and one by
the respondent's solicitor. Neither deponent was required for
cross-examination.
So far as (a) is concerned, the applicant has a positive
burden of demonstrating that the justice of the case requires
the extension of time. See Hills at paragraph [79].The applicant must make out a substantial case that it is just
and proper for time to be extended. See Hills at paragraphs
[80], [203] and [220]. Of relevance is "whether there was a
period after the testatrix's death in which the (applicant) was aware of (her) right to bring an application for further provision from the testatrix's estate." See Hills at paragraph [155].
(d) has been said to involve a consideration of whether it is
probable that the substantive application will succeed. See
Hills at paragraph [31]. Alternatively, the application to
extend time will be refused if the substantive claim would probably fail or be clearly unlikely to succeed, or have distinctly improbable prospects of success. See Hills at paragraphs [35], [37] and [43]. (d) has also been said to require consideration of whether the applicant has an arguable case on the merits. See also Hills at paragraph [218].
What is required is "a general assessment of the strength of
the applicant's case". If there is an arguable case "it will
often be necessary to give further consideration to the
strengths or weaknesses of the applicant's case".
Fraser JA at paragraphs [212], [215] and [220] referred to the failure of the applicant in that case to establish that he had "a strong case" but that was in the context of assessing the applicant's case rather than postulating that an applicant for an extension of time had to establish a strong case on the merits.
I prefer the approach that an applicant for an extension of time need establish an arguable case. That is consistent with the way in which such applications are normally dealt with. In this respect, Muir JA said there is "a need to recognise the limitations of the material before the
Court on the application for leave, which will be generally
untested by cross-examination in comparison with the more
extensive material likely to be in evidence on the substantive
hearing." See Hills at paragraphs [76] and [77].
What is involved is an evaluative assessment of whether at the
date of death adequate provision has or has not been made from
the estate for the proper maintenance and support of the
applicant, having regard to the totality of the relationship
between the deceased, her husband, and their two daughters,what a wise and just testatrix would do - moral duty or moral obligation of the testatrix to the applicant -, the applicant's financial position, the size and nature of the deceased's estate, any reason stated by the deceased for what she did and the legitimacy of the claims on the deceased's bounty by each daughter. See Hills at paragraphs [38], [40], [41], [125], [129-137],[144], [145] and 205.
Explanation for Delay
Time expired on the 2nd of June 2008. The respondent's
solicitor, Carolyn Byrne, deposes that on the 30th
of October 2007 she advised the applicant's then solicitors,
at the latter's request, that the applicant was not a
beneficiary under her mother's will. By e-mail, dated the 5th
of November 2007, Ms Byrne, in response to what appears to
have been a telephone request for a copy of the will of the
applicant's mother, advised the applicant's then solicitors
that it would be available through the probate process. None
seems to have been obtained that way.
By letter dated 24th of June 2008 to the respondent's
solicitors, the applicant's current solicitors requested a copy of the will of the applicant's father.
By letter dated 21st of July 2008, the applicant's solicitors wrote to the respondent's solicitors in the following terms, so far as is relevant:
"ESTATE OF THE LATE JOHN EDWARD MYERS
As you are aware, we act for the daughter of the above named,
Cheryl Jenal.
Thank you for providing us with a copy of the final will of
the above named, dated 7 September 2008. We note that the
will makes no provision for our client.
We are instructed that our client is the only other child of
the deceased and that she had a good relationship with both of
her parents up until her mother passed away on Father's Day in
2007. For three months prior to her mother's death, our
client lived in her late parents' home with her mother and
father for two nights per week for three months; to care for
her ill mother and to provide for her father. This required
her to attend to all household duties, including cooking,
cleaning, washing and purchasing groceries. The above named
father was unable to attend to these tasks due to his
long-standing emphysema, which required him to have oxygen
supplied to him at all times. Our client considered that she
had a good relationship with the deceased at least up until
her mother passed away, approximately nine months ago.
For reasons unbeknown to our client, her sister, Marcia Fife,
informed her approximately six weeks after her mother passed
away that her father wished to have nothing more to do with
her. Despite repeated requests, unfortunately Ms Fife would
not elaborate on the reasons why this occurred."
By letter dated 11 August 2008 the applicant's solicitors further wrote to the respondent's solicitors in the following terms:
"ESTATE OF THE LATE MARGARET ANN MYERS
We refer to previous correspondence.
We confirm that a Grant of Probate has recently been made by
the Supreme Court in relation to the estate of the above
named.
We are instructed by our client that, shortly after her mother
passed away, she was informed that her late father was the
sole beneficiary of her late mother's estate. For that
reason, she did not make application for any provision from
that estate.
We are further instructed that our client only became aware in
July 2008 that her father was not, in fact, the sole
beneficiary of her late mother's estate and that there were a
number of beneficiaries, including our client's daughter.
We are instructed to make an application for provision from the estate of our client's late mother. We request that you
do not make any distributions from that estate until such time
as our client's application has been determined.
In the meantime, we look forward to receiving a copy of the
last will of the above named and a copy of the Grant of
Probate, as previously requested.
We thank you in anticipation of your assistance."
Each letter is exhibited to Ms Byrne's affidavit. No replies
to either are produced by her. These letters are, in my view,
consistent with the applicant's explanation for delay advanced
in her two affidavits filed in support of her application for
an extension of time. The absence of any material in
opposition could also be said to be supportive of the
applicant's case or at least not to detract from it.
Ms Byrne also refers to when probate was granted, the size and
nature of the estate, and to the fact that as at the 28th of
April 2009, the estate had been administered as follows only:
(a) Marcia Fife had been paid $9,706, being the balance of
the St George Bank account, less funeral expenses; and
(b) The real property had been transferred from the name of
the deceased to the name of the respondent as executor.
Ms Byrne does not deal in any other way with any facts
relating to the case for provision advanced by the applicant,
or to the applicant's prospects of success in that case.
In her second affidavit, filed on the 9th of February 2009,
the applicant deposes as follows:
"3. In approximately October 2007, I instructed Shane Ellis
Lawyers to make inquiries as to whether I was a beneficiary
under my mother's will.
5. I heard nothing further from Shane Ellis Lawyers and I
took no further steps in respect of the matter until 28 April
2008, when I contacted Shane Ellis Lawyers again. I had
thought that Shane Ellis Lawyers must have had the matter in
hand and I was not too worried about the matter as I simply
believed that my mother would have left all of her estate to
my father who survived her. I had thought that my mother and
father owned their home jointly and that my father would have
simply inherited my late mother's share of that property. I
remember leaving a message with Shane Ellis Lawyers for the
solicitor to call me. I am advised by my current solicitors
and verily believe that Shane Ellis Lawyers' records show that
the solicitor, Katherine Hanson, called me back that same day
and spoke with me for a very short time. I have no
recollection of the substance of the phone conversation I had
with her.
6. I was never made aware of Shane Ellis Lawyers that there
was a limitation period in relation to making an application
for provision from my mother's estate. I did not know that
there was one. I only learned of such a limitation period
after consulting my current solicitors, O'Reilly & Sochacki
Lawyers.
7. On 19 June 2008 my father, John Edward Myers, passed away.
I telephoned Shane Ellis Lawyers again on 20 June 2008 to
inquire as to what I could do in relation to finding out
whether I had been left anything from my father's estate. I
did this as I had very little contact with my sister, Marcia,
who I thought would be the executor of my father's will. My
relationship with Marcia at that time was really poor and I
did not want to call her to speak about this matter.
8. Later on the 20th of June 2008 I contacted my current
solicitors, O'Reilly & Sochacki Lawyers, for the first time to
inquire as to what I could do to determine whether I was a
beneficiary under my late father's will. They wrote on my
behalf to National Seniors Lawyers who provided them with a
copy of my late father's will. It made no provision for me.
At that point in time I had still not seen a copy of my late
mother's will and nine months had already expired since her
death.
9. National Seniors Lawyers did not provide my solicitors
with any detail as to the nature of the estate of my late
father. I instructed my solicitors as to my belief that my
father's estate would have consisted of the home that my
parents had lived in at Worongary, their Toyota motor car, cash investments and tools and personal possessions. After I
learned that my father had made no provision for me from his
estate, I sought advice from O'Reilly & Sochacki Lawyers in
respect of bringing an application against the estate for
adequate provision from the estate.
10. By letter dated 21 July 2008 my solicitors, O'Reilly &
Sochacki Lawyers, wrote to National Seniors Lawyers putting
them on notice that I intended to make a claim against the
estate of my late father for adequate provision. In the
course of getting advice from O'Reilly & Sochacki Lawyers,
they advised me that there was a nine-month limitation period
in respect to making application for adequate provision from
an estate. At that time, I still believed that my parents'
property would have all been part of my father's estate. I
instructed my solicitors to try to obtain a copy of my late
mother's will.
11. At around this time, I became aware that my father was
not the sole beneficiary of my late mother's estate and had
not inherited all of her property. I raised this with my
solicitors, O'Reilly & Sochacki Lawyers. By letter dated 28
July 2008, my solicitors, O'Reilly & Sochacki Lawyers, wrote
to National Seniors Lawyers and asked them to provide them
with a copy of my late mother's will and a copy of the Grant
of Probate that had issued from the Supreme Court of
Queensland in respect of her will.
12. It was around this time that my solicitors advised me
that although I was out of time in respect of my late mother's
estate that the Courts may grant leave to make an application
for adequate provision out of time. I instructed my
solicitors to put National Seniors Lawyers on notice that I
intended to make application for adequate provision out of my
late mother's estate and they did this by letter dated 11
August 2008, sent to National Seniors Lawyers, solicitors
acting for the estate of my late mother. At that time, my
solicitors had not received the copy of my late mother's will
that had been previously requested. Later that day, after
hours, my solicitors received an e-mail from National Seniors
Lawyers that attached a copy of the Grant of Probate and a
copy of my late mother's will.
13. My solicitors received written correspondence from
National Seniors Lawyers dated 1 September 2008 in which my
claims for adequate provision from the estates of my late
parents were rejected and they pointed out that I was out of
time in respect of the claim against my late mother's estate.
My solicitors had previously recommended that I obtain advice
from counsel in respect of these matters and particularly
before commencing any application, even one for leave to
proceed out of time against my late mother's estate.
14. I instructed my solicitors to send a brief to counsel to
obtain such advice and that was done on under cover of a
letter dated 3 September 2008.
15. My solicitors have advised me and I verily believe that
they received some oral advice from counsel on or around
3 November 2008 and that as a result of that they wrote, by
e-mail, to National Seniors Lawyers that same day requesting
details of the assets of my parents at the time of their
respective deaths. My solicitors have further advised me and
I verily believe that they received written advice from
counsel in respect of my matter on 4 November 2008.
16. My solicitors have advised me and I verily believe that
they received written advice, by e-mail, from National Seniors
Lawyers on 3 December 2008 setting out a list of the assets of
my late parents at the time of their respective debts.
17. On 13 November 2008 I instructed my solicitors to cause
an application to be made by me for adequate provision out of
the estate of my late mother and for an application to be made
by me for leave to proceed with such application, although it
is outside the nine months since the death of my late mother.
18. My solicitors have advised me and I verily believe that
on 18 December 2008 they sent, by e-mail, a brief to counsel
to settle the material for the commencement of these
applications and that they received the settled material back
from counsel, by e-mail, on 22 December 2008."
See also paragraphs 29-35 of the applicant's first affidavit
filed on the 9th of February 2009.
I accept what the applicant says in both affidavits. It is not contested by any material filed by the respondent. In my view, the applicant has, for the following reasons, proffered an adequate explanation for the delay, and has demonstrated that it is just and proper for time to be extended subject to a consideration of her prospects of success on the merits:
(1) She instructed solicitors, in about October 2007, and
from then until the 24th of April 2008 she thought they had
matters in hand. This was not an unreasonable position for
her to take in the circumstances.
(2) The applicant believed her mother and father jointly
owned their home, and that her mother would have left all her
estate to the applicant's father, who succeeded her. As to her belief to that effect, I agree with the written outline of argument of Mr Forrest, counsel for the applicant, as follows: "Such beliefs (sic) were perfectly reasonable in all the circumstances, having regard to general societal norms in respect of property ownership between long-term married couples," (para 2.18).
It follows that I cannot accept Mr Campbell's submission to
the contrary, namely, that it was unreasonable for the
applicant to proceed on the basis that the house was jointly
owned, and that a title search could have been quite easily
conducted. He submitted that a reasonable person would have
conducted further investigation. In the circumstances as they existed here I do not, with respect agree.
(3) The applicant was not aware of the fact of the limitation
period until late July 2008, and then only so far as making a
claim on her father's estate was concerned.
(4) By the 20th of June 2008 the applicant still had not seen
a copy of her mother's will.
(5) The applicant was not initially aware of the importance of the limitation period so far as a claim against her mother's estate was concerned, because of her belief that her mother's estate had gone to her father.
(6) The applicant's sister confirmed to the applicant some
weeks after their mother's death that "everything" - that is,
all their mother's estate - was "going to their father" .
(7) Between the dates of her mother's and father's deaths,
the applicant had, as a result of what her sister said was
their father's wishes, no contact with her father.
(8) By the time the applicant knew of the correct position so
far as the estates of her mother and father were concerned,
the limitation period for making a claim on her mother's
estate had expired.
(9) The respondent's solicitors were advised of the
applicant's intention to make a claim by letter dated 11th
August 2008.
(10) The applicant sought further legal advice as to her
position. That was the appropriate thing to do. On the advice of her solicitors, the applicant, on the 3rd of September 2008, sought the advice of counsel as to the merits of an application to extend time and an application for provision from her mother's estate. I was informed from the Bar table that counsel took two months to provide the advice sought. The applicant is not responsible for that delay.
(11) Thereafter the applicant, in my view, acted
expeditiously.
(12) Mr Campbell conceded it was not unreasonable of the
applicant to obtain a copy of her mother's will and to seek
counsel's advice.
(13) Mr Campbell also conceded that more emphasis should be
placed on the first time period; that is, the date of death,
the 2nd of June 2008, than the second time period; that is,
2nd of June 2008 to 9 February 2009, and I think that
concession was properly made.
(14) The relatively short time between the 2nd of June 2008
and the 9th of February 2009, and the steps taken by the
applicant during that period to obtain advice as to her
position.
Prospects of Success
The applicant's case is summarised in her first affidavit
filed on the 9th of February 2009 in the following terms:
"1. I am the daughter of the deceased, Margaret Ann Myers,
who died on 2 September 2007, and John Edward Myers, who died
on 19 June 2008.
2. I was born on 23 May 1962 and am forty-six (46) years old.
I am married to John Jenal, who was born on 14 October 1964.
There are four children of the relationship, all of whom are
adults and live independently from me.
5. As a child I lived with my parents, Margaret Ann Myers (my
mother) and John Edward Myers ("my father") at our home at
Queanbeyan in southern New South Wales. I also lived with my
older sister, Marcia Fife, who was born on 17 April 1961
("Marcia"). I recall that my father worked on a full-time
basis throughout my childhood for Queanbeyan City Council,
whilst my mother worked as a nurse.
6. Both my sister, Marcia, and I attended a local Catholic
primary school. Marcia was two years ahead of me. After
primary school we both attended the St Benedict's College at
Queanbeyan. I left after one year and went to Queanbeyan High
School, which I left when I was in year 9, or third form as it
was called then. Marcia went on to complete year 12.
7. I do not recall my childhood to be a happy one and there
was always a great deal of conflict regarding Marcia and me.
Even as a very young child, I recall feeling that I was
treated differently to Marcia.
8. When I was approximately seven years old, I was sexually
assaulted by my late father. This was a very traumatic
incident in my life and I now understand it has had a dramatic
impact on all aspects of my life; my growing up as a child and
teenager, my attitude towards others and to myself.
9. I recall the first incident occurred when my father took
me with him to go wood carting. I recall I was sitting on a
log in the bush and my father came over to me. He began to
fondle my breasts and told me to lay down on the ground. He
then had sexual intercourse with me. I recall I felt a great
deal of pain. When this happened I was very confused and
unsure what he was doing. I recall he said to me:- 'Don't you
tell anyone about this or you will get a hiding.' I did not
tell anyone about what had happened as I was very scared of my
father.
10. I recall the second incident occurred some four to six
months later. I cannot be certain. I recall my father had
taken me with him again to go wood carting and that whilst
with him he again forced me to have sexual intercourse with
him. I was still only seven at the time. Again, I recall my
father told me words to the effect:- 'You cannot say anything
to anyone about this or you will get into a lot of trouble.'
Once again, I was very scared and did not tell anyone about
what my father had done to me for several years.
11. After the incident, I recall my relationship with my
father changed dramatically. I was very fearful of him and as
I grew older I appreciated what had happened, I also became
distant from him. I recall as I grew up that I felt very
different from my sister and felt that I was treated
differently, most particularly by my father who was dismissive
of me and seemed to favour my sister.
12. As I grew up I became more rebellious and began having
difficulties at school. I did not like school and had a
distrust and dislike of authority figures, such as my
teachers. As a consequence, I was often in trouble at school.
I left school when I was 14 or 15. I recall this caused a
great deal of conflict between me and my parents; but I was
not happy at school and refused to return to school.
13. I recall in my early teens I spoke to a friend at school
named Ann Green. I recall I told her what my father had done
to me. I recall I said words to the effect:- 'Did your dad do
that to you?' I recall after telling Ann Green, I then
attempted to tell my mother. This was very unsuccessful as my
mother did not believe me. I recall I said words to the
effect:- 'Mum, dad had sex with me when I was seven.' She
said:- 'That's impossible. You're nothing but a liar. Don't
ever say that about your father.'
14. I recall after I told my mother my relationship at home
with my parents deteriorated even further and my behaviour
also deteriorated. I became more difficult and rebellious at
home. I did not want to be at home and would often go and
stay with friends. I recall I left home at 16 or 17 years of
age when I became pregnant.
15. After telling my mother of the sexual abuse by my father,
it was never discussed again. Her disbelief of me was very
upsetting for me. Whilst I had a good relationship with my
mother after telling her, our relationship was more distant
and it took some time to develop again. My relationship with
my father remained distant and had it not been for my mother,
I do not think my father would have remained very involved
with me. I have no doubt in hindsight that I was a big
disappointment to them compared to Marcia.
16. When I became pregnant at 17, my parents told me I had to
get married and at 17 I married Bernard Keft on 20 October
1979. Bernard and I had three children from that
relationship, namely, Charmaine Keft, born 31 March 1980;
Kellie Ann Keft, born 6 January 1982 and Matthew John Keft,
born 20 October 1983. Bernard and I were married for seven
years. We separated in 1982 and divorced on 12 May 1986.
17. Bernard and I lived in Queanbeyan and I recall that my
mother and father remained involved with me and at times would
have the children overnight. When Bernard and I separated I
was 19 years of age and had two children under three years. I
was also pregnant with Matthew. I recall that I had to go on
a supporting parents' benefit. I was solely responsible for
the care of the children as I did not receive a great deal of
support from Bernard.
18. In 1986 I met my husband, John Jenal ("John"). John and
I married on 23 December 1988. We have one child from our
relationship, namely, Jamie Jenal, born 15 March 1988.
19. When John and I were married, John immediately assisted
me with the care of my three children who were eight, five and
three years old.
20. John and I continued to live in Queanbeyan. Over the
period 1988-2000, I continued to have regular contact with my
father and my mother. I saw them every second day and would
regularly go to their home with the children and often they
would come to our home. I would often assist them with
shopping or run errands from them. I considered my
relationship with them both appeared to have settled.
21. In 1993 I had difficulties with my second child, Kellie.
Kellie left home and went to live at my mother's home. My
relationship with my parents was again strained and my mother
was very critical of how John and I had raised the children,
especially Kellie. At the end of approximately four months
away, Kellie returned home. After this my relationship with
my parents improved again.
22. In the period between 1993 and 2000, I continued having
regular contact with my mother and father. I would see them
once or twice per week and would also speak with them on the
phone. I was regularly running errands for them and buying
groceries and taking them out. I recall giving my mother and
father various pieces of furniture during this period,
including a gas heater, a lounge, a fridge and a bed. John
would also go to their home and complete maintenance around
their home. I considered my relationship with my parents in
this period to be a very good one.
23. In 2000, John and I relocated with the children but for
Kellie, to Burringbar in northern New South Wales. Kellie had
already moved out of home. After I left Queanbeyan, I
remained in regular contact with my parents. I would ring
them weekly, if not twice weekly. I recall visiting them in
both 2001 and 2002, approximately three times each year. On
each occasion we stayed with them at their home in Queanbeyan.
Again, during this period I considered I had a very good
relationship with mum and dad. We remained in regular
contact. We sent cards and presents and we saw them at every
available opportunity.
24. In 2002, my parents sold their home in Queanbeyan and
moved to Nerang. My parents lived in a caravan in the front
yard of Marcia's property for three months until they found
their home at Nerang. I was not involved in my parents'
purchase of the Nerang property, which I now understand was
purchased in my mother's sole name. After my parents moved to
Nerang, I continued to have regular contact with them. I
would ring at least once a week and speak to both parents and
visit a minimum of one to two times per month.
25. Over the five years between 2002 and 2007, I considered
that my relationship with my parents, and particularly my
mother, to be a good one. We spoke regularly and I was not
aware of any conflict in my relationship. My parents' home
was approximately 60 kilometres away from our home at
Burringbar and at times, at mum's request (which occurred from
time to time). I recall during one of my visits I was
speaking with my mother about my father and the fact that I
did not feel he was close to me. I recall saying words to the
effect:- 'Mum, I always felt I was on the outer. I couldn't
understand why dad was so nasty to me.' She said:- 'Don't
worry, Cheryl. Your father hasn't been happy with you since
you went to the Centralion trip. At the station you didn't
kiss him goodbye.' I said:- 'Mum, that was years and years
ago.' My mother and I never talked about my relationship with
my father at any other time. At no time did the issue of my
sexual abuse get raised by my mother or me. At all times I
believed that I had a good relationship with my mother, though
I understood and accepted that my relationship with my father
was different.
26. In 2007, my mother became unwell. My mother passed away
on 9 September 2007. In the three months prior to her death,
I went to her home regularly to help my father care for her.
I went up weekly and would often stay two or three nights.
During this time I cleaned the house, did the cooking, and did
the weekly shopping. On each occasion I would bring
groceries, cooking and food to assist them over the week. I
tried my best to support my mother, who had lung cancer, and
to support my father. I would stay with my mother to make her
comfortable and remained at their home to support my father
who was frail and unable to care for my mother alone.
27. I recall that during this time my sister, Marcia, would
also come over. At times this became difficult and there was
often tension between Marcia and me. My father would often
get involved and supported Marcia. My mother was aware of
this tension and I recall before her death, my mother said
words to the effect:- 'I know Marcia tells lies but she's
been good to me since I've been sick.'
28. I was present at my mother's bedside on the day of her
death. I recall Marcia had gone to Melbourne on 7 September
2008 to see Phantom of the Opera. When my mother's condition
deteriorated, I rang Marcia to ask her to come home as mum was
unwell. Marcia arrived home on the night of 8 September 2008
and my mother died the next day.
29. I was devastated by my mother's death and wanted to be
there for my father in the immediate period after her death.
On the afternoon of my mother's death, I recall approaching my
father to talk with him. I recall saying words to the
effect:- 'How are you doing, dad? Are you okay? Is there
anything I can do?' He said:- 'Just leave me alone. Get out.
Just get out.' I said:- 'Dad, I know you're upset but what's
wrong? Why are you saying this?' He said:- 'Just leave, get
out. Just get out of here.'
30. I was very upset and distressed but I left. I did not
want to make him more upset. I was not sure what I had done
to make him respond to me like this. I recall I went home and
was very upset. I felt I needed to talk with someone and
called a friend, Sue Whiting. I recall I talked with Sue
about my father and I spoke to her about my father's sexual
assault of me. I recall that my father telling me to 'get
out' brought back many feelings about my relationship with
him, thoughts and feelings which I had for many years about
the sexual assault.
31. At the funeral on 6 September 2007, my father did not
speak to me at all. I tried to speak with him but he refused.
Marcia was at my father's side and I was pleased that he had
support. Marcia also appeared reluctant to talk with me. I
had little contact with Marcia for several weeks after my
mother's death. We met some weeks after my mother's death at
The Pines at Elanora and when I asked about my father, Marcia
said words to the effect:- 'Dad doesn't want to see you or
speak with you.' I recall saying:- 'Marcia, why? Why
doesn't he want to talk with me?' She said:- 'Just leave him
be. Leave him. I don't know why but he doesn't want to.'
32. Prior to the meeting, Marcia had asked me to bring a list
of things I wanted from my mother's possessions. At the time
I did not ask Marcia if there was a will, but I did say words
to the effect:- 'Marcia, everything will be going to dad.'
She said:- 'Yes.' I also said:- 'Marcia, do you have the
knitting bag with needles?' She said:- 'The executor has many
of mum's and dad's things and they will get sorted out.' I
took little notice of what Marcia had said as I was very upset
and could not understand my father's reaction. I had been at
his home for over three nights per week over a period of three
months caring for my mother and my father had not reacted to
me at any time before during that three months.
33. Following my mother's death, I made inquiries regarding
my mother's estate with my then lawyers, Shane Ellis Lawyers.
I seek leave to refer to my affidavit sworn on 20 January
2009. This affidavit has been prepared in support of my
application to commence these proceedings out of time.
34. My father died on 19 June 2008. Between the date of my
mother's death and my father's death, I did not have any
contact with him. I dearly wanted to speak with him and spend
time with him, but my sister had made it clear that he did not
wish to have any contact with me. I had no choice but to
respect these wishes.
35. After my father's death, and as a result of inquiries
made by my solicitors, I became aware that a title search in
respect of my late parents' property at Nerang identified that
the title to the property had been registered in the name of
Sandra Maree Wolfenden, a very close personal friend of my
sister, as personal representative. I also became aware that
the property had been registered solely in my mother's name
prior to her death and not in my parents' joint names. As a
result, I instructed my solicitors in early August 2008 to
write to the solicitors for my mother's estate to obtain a
copy of my late mother's will and the grant of probate.
36. I was very upset when I received my late mother's will
and it indicated that certain sums of money were to be
distributed to five of my mother's grandchildren, including my
daughter, Kellie, and that all of the residue of the estate
was to pass solely to my sister, Marcia. The will made no
provision for me and there is no explanation contained in my
mother's will as to why I did not receive any provision from
her estate.
37. I have never received any gifts of money from my late
mother or my late father during their adulthood.
38. I was educated to year 9 and have no formal
qualifications or training. Following my marriage in 1979, I
was involved in home-making responsibilities. I did not
return to work until approximately 1986. I worked primarily
on a part-time basis completing manual work. I also assisted
my husband, John, in his earthmoving business two to three
days per week. On the days that I worked for John, I would
call into my parents' home for lunch and my mother would
always have a cooked lunch prepared.
39. In February 2008, I took over a cafe business located at
Mooball. This business has been unsuccessful and the business
will be closing down at the end of my lease. I have to work
very long hours in the business which has consistently been
operating at a loss. In the period between February to June
2008, the business lost $15,503. Unfortunately, I have a
lease to 11 April 2009 and whilst I have reduced the losses of
the business, this has been achieved by me taking on the
primary responsibility of running the business and not
employing staff.
40. My assets, which I own jointly with my husband in equal
shares, are as follows:- (i) Home at Burringbar E$400,000.
(ii) Holden Crewman ute, E$25,000. (iii) Hilux ute E$5,000.
(iv) Bedford campervan, $8,000. (v) Joint savings accounts,
$7,000. (vi) Backhoe, $60,000. (vii) Another backhoe,
$25,000. Total $525,000.
41. My liabilities which I owe jointly with my husband are
estimated as follows:- (i) Mortgage over home at Burringbar
$145,000. (ii) Car loan, $30,000. (iii) Loan on backhoe,
$60,000. (iv) Overdraft for business, $50,000. (v)
Australian Taxation Office, $40,000. Total, $325,000. Net
total - jointly owned, $200,000.
42. I am almost solely reliant on income my husband, John,
generates from his excavation business. John's income is very
unpredictable and depends not only on demand but also on
weather. The current economic crisis has had a very
significant effect on John's income as building and
construction work has slowed down. Much of our income is
applied to meeting our existing liabilities.
43. I have no superannuation. My husband, John, has no
superannuation. Our income does not provide for payment of
our superannuation or financial needs in the future. I am 46
years of age and I am concerned about my financial well-being
into the future. After I close the cafe business I will need
to find alternative employment. My age and lack of
qualifications and the present financial and economic
circumstances means that it will be difficult to obtain
employment.
44. I do not propose that any of the assets of my late
mother's estate be exonerated from any order of the Court in
these proceedings."
I accept what the applicant says. It is not contested by the
respondent.
Mr Campbell submitted that the applicant has no prospects on
the merits at all and that, more so with a small estate such
as the present, a married daughter applicant needs to establish a special need or a special claim. Mr Forrest, on the other hand, submitted that no accepted principle required the applicant to go so far in her claim.
In his outline of argument Mr Campbell makes the following
points:
"16. The applicant is a middle-aged married woman with a
reasonably secure financial position although she deposes that
she has no income other than that of her husband whose work
has slowed down as he is in the building and construction
industry. No documentary evidence has been filed in this
regard.
17. She paints a picture of running a business that has been
suffering ongoing losses but she has an interest in a
matrimonial property with an estimated value of $400,000 and a
mortgage of $145,000. No documentary evidence has been filed
in this regard.
18. She also paints an extensive picture of sexual abuse of
her as a child by her father to such an extent that one
queries whether or not this seems to be the motive and the
basis upon which her application is made.
25. It is seriously open to question as to whether or not any
award would be made in favour of the applicant given as noted
earlier she is a married woman whose husband works. As well
she has no dependant children and is relatively debt free save
and except for a small mortgage.
26. De Groot and Nickel (supra) page 114, indicate that the
following principles apply in relation to married daughters:
(i) Applications by married daughters in good health who are
being supported by their husbands tend to be treated similarly
to applications made by adult sons who are supporting
themselves. They are not in a strong position as applicants,
and in a number of cases the applications have failed.
(ii) If, as suggested above, adult daughters are now to be
treated similarly to adult sons, it is likely that the Courts
will insist that the same principles apply, that is, it must
be, as a general rule, some special need or special claim
before the Court will consider making further provision for
them. For example the need for the support and education of a
child. (iii) It would seem that in the case of a small to
modest estates (as is the case here) a married daughter would
have to show some special need or claim before she could
expect some provision at the hands of the Court."
The absence of documentary evidence and the suggested motive
for the application were not seriously pursued, and in any
event the applicant was not required for cross-examination.
I am not satisfied that a married daughter seeking part of a
modest estate must establish a special need or special claim.
Mr Campbell referred to De Groot and Nickel, Family Provision
in Australia, Third Edition. The following passages from
paragraph 3.31 of that text do not appear to disentitle the
applicant here, for the reasons advanced by Mr Campbell.
"[3.31] Applications by married daughters in good health who
are being supported by their husbands tend to be treated
similarly to applications made by adult sons who are (or who
are capable of) supporting themselves. They are not in a
strong position as applicants, and in a number of cases their
applications have failed.
Where the daughter is married to a husband earning a low
income, has dependant children, or is otherwise in need, she
may be awarded a sum equal to that received by her siblings
under the will 195 or she may be awarded a substantial share
in the estate.
Provision is not limited to immediate needs. The daughter's
fortunes might unexpectedly change and some provision to cover
future possible misfortune may be justified, for example, a
mortgage on the matrimonial home may become a great burden if
the husband's earning capacity were reduced. Other
contingencies which have been taken into account include the
probability that a health condition (such as increasing
deafness or lameness) would reduce employment opportunities
and that the existing provision in a will might soon be
inadequate to support the applicant.
There has been a distinct change in attitude by the Courts to
applications by married daughters in recent years. For
example, in Little v. Angus 203 the New Zealand Court of
Appeal said, 'We accept that the claims of married daughters
are to be approached at the present day somewhat more
liberally than in the past.'
In Re Bodman 204 Hoare J said: 'In the case of a married
daughter it is clear that the mere fact that she is presently
supported by her husband does not disentitle her from claiming
under the Act'.
Perhaps the best expression of need for applicants in this
category is found in the joint judgment of Fullagar and
Menzies JJ in Blore v. Lang, where their Honours say, 'In a
case such as this, where the applicant is a married woman with
a healthy husband in satisfactory employment who supports her
in reasonable comfort, her need is not for the bread and
butter of life but for a little of the cheese or jam that a
wise and just parent would appreciate should be provided if
circumstances permit.'
If, as suggested above, adult daughters are now to be treated
similarly to adult sons, it is likely that (except in New
South Wales) 216 the Courts will insist that the same
principles apply, that is, there must be, as a general rule,
some special need or special claim before the Court will
consider making further provision for them.
The examples of special need or special claim mentioned in the
context of adult sons would no doubt also apply in the case of
adult daughters. Again, it is a case of approach rather than
jurisdiction.
It would seem that in the case of small to modest estates, a
married daughter would have to show some special need or claim
before she could expect some provision at the hands of the
Court."
At any rate, these various matters are clearly arguable in the
applicant's favour. At the end of the day, the question to be determined is whether the applicant has been left without adequate provision for her proper maintenance and support, and in the present circumstances I am satisfied, for the following reasons, that the applicant has established that she has an arguable case in that respect; it is not a case which would probably fail or in which she has distinctly improbable prospects of success:
(1) The size of the estate.
(2) The moral duty of the deceased to both of her daughters,
and what a wise and just mother would have done in the
circumstances.
(3) The absence of any apparent reason for preferring one
daughter to the other, or some grandchildren to the applicant.
(4) The somewhat arbitrary nature of the dispositions by the
applicant's mother.
(5) The applicant's modest financial circumstances at the
date of her mother's death which would also have been known to the deceased.
(6) The fact that her father's sexual interference of her in
all probability contributed to her behavioural problems whilst
growing up, and to the resultant conflict with her parents,
and their apparent preference for the applicant's sister.
(7) Her mother's refusal to believe that the applicant's
father had sexually interfered with the applicant, and the
extent this may have later influenced her mother in her
testamentary dispositions.
(8) The continued contact between the applicant and her
family and her parents, for better or for worse, and the
applicant's assistance to her mother when the latter became
unwell in 2007.
(9) The relationship between both daughters and their
parents.
(10) The fact that the applicant clearly has a legitimate
claim on the bounty of her mother, more so when her father has
contributed to the estate of her mother.
(11) The fact that the father of the applicant contributed to
the estate of the applicant's mother.
For these reasons the application to extend time will be
granted, and the time for making the substantive application
will be extended up to and including the 9th of February 2009.
I order that the applicant pay the respondent's costs of and incidental to the application, to be assessed on the standard basis, unless agreed.
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