Jenkins v McClelland
[2015] QSC 340
•12 November 2015
SUPREME COURT OF QUEENSLAND
CITATION:
Jenkins & others v McClelland [2015] QSC 340
PARTIES:
CHRISTINE LEA JENKINS
(first applicant)
KERRY HARTSHORN
(second applicant)
ADRIAN JAMES HARDING
(third applicant)
KERYN JEAN BUTTERWORTH
(fourth applicant)
v
ROBERT PATRICK MCCLELLAND as Executor of the Estate of Glenda Jean McClelland(respondent)
FILE NO:
SC No 6633 of 2014
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 November 2015
DELIVERED EX TEMPORE AT:
Brisbane
HEARING DATE:
12 November 2015
JUDGE:
Atkinson J
ORDERS:
1. The applicants have leave to amend the originating application to include an order that the Deceased’s Will dated 11 October 2012 be admitted to probate.
2. Pursuant to s 6(1) of the Succession Act 1981 (Qld), the Deceased’s Will dated 11 October 2012 be admitted to Probate.
3. Pursuant to s 41 of the Succession Act 1981 (Qld), further provision for ROBERT JOHN McCLELLAND out of the estate of the Deceased be made such that the Deceased’s Will dated 11 October 2012 be read and construed as if cll 4 and 5(a) were deleted and replaced with cl 4 in the following terms:
“4. I GIVE all of my household chattels and any motor vehicles and boats which I may own at the date of my death, together with the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) from the proceeds of sale of my property at Unit 8, 21-27 Sylvan Beach Esplanade, Bellara, Queensland, more particularly described as Lot 8 on Survey Plan 105611, County Canning, Parish Woorim, Title Reference 50225075 to the said ROBERT PARTICK McCLELLAND”
4. Pursuant to s 41 of the Succession Act 1981 (Qld), further provision for CHRISTINE LEA JENKINS AND KERRY HARTSHORN out of the estate of the Deceased be made such that the Deceased’s Will dated 11 October 2012 be read and construed as if cl 5(b) were deleted and replaced with the following:
“(b) To those of my children ADRIAN JAMES HARDING, KERYN JEAN BUTTERWORTH, CHRISTINE LEA JENKINS and KERRY HARTSHORN as shall survive me, if more than one then as tenants in common in equal shares absolutely”.
5. That Probate of the deceased’s Will dated 11 October 2012 (as varied by these Orders) be granted to ADRIAN JAMES HARDING and KERYN JEAN BUTTERWORTH subject to the formal requirements of the Registrar.
6. Each of the parties shall bear their own costs of and incidental to these proceedings.
CATCHWORDS:
Succession Act 1981 (Qld) s 6(1), s 41
Uniform Civil Procedure Rules 1999 r 377
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – AMENDMENT – where the proposed amended originating process would reflect the order sought in the substantive application by referring to the will now propounded – whether the applicants should be granted leave to amend the originating application
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – TO WHOM PROBATE GRANTED – where the will propounded had been made by the deceased in contemplation of marriage to the respondent, which did occur – where the deceased subsequently made another will – where that later will was not propounded by any party – where the parties agreed, and the evidence showed, that there was a well-founded suspicion of invalidity in respect of that later will due to its being made in close proximity to her death from long-term alcohol abuse and associated ailments – where there was no evidence of invalidity of the will propounded by the applicants – where the respondent had renounced his appointment as executor under that will – whether the will propounded should be admitted to probate – whether probate of the will propounded should be granted to the third and fourth applicants
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE –WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the deceased had two biological children from her first marriage – where the deceased was married a second time and that spouse had brought two children of his own to the family – where the deceased and her second husband had made mutual wills leaving the entirety of their respective estates to their surviving spouse, and if that spouse should predecease them, to each of the four children equally without regard to whether or not that child was a natural child or a stepchild of the deceased – where the second husband of the deceased subsequently died and his mutual will took effect – where the deceased then made the will propounded – where the will propounded was alleged to make insufficient provision for the two step-children of the deceased, being the first and second applicants – whether insufficient provision had been made – whether further provision should be made from the estate of the deceased for each of the first and second applicants – whether such further provision should be in the terms agreed by the parties
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY SPOUSE OR PARTNER – where the will propounded had been made by the deceased in contemplation of marriage to the respondent, which did occur – where the deceased had two biological children from her first marriage and two step-children from her second marriage – where the deceased and the respondent spouse married in the year prior to the deceased’s death – where the will propounded was alleged to make insufficient provision for the respondent spouse – whether insufficient provision had been made – whether further provision should be made from the estate of the deceased for the respondent spouse – whether such further provision should be in the terms agreed by the parties
COUNSEL:
GR Coveney for the applicants
V Pennisi (sol) for the respondent
SOLICITORS:
Cooke & Hutchinson Lawyers for the applicants
V Pennisi & Associates for the respondent
ATKINSON J: This hearing has dealt with two applications which were combined in an originating application filed in this court on 18 July 2014. The first is that a particular will of the deceased be admitted to probate, and the second is that further and better provision be made from the estate of the deceased for the proper maintenance and support of her two children and her two stepchildren. The actual orders sought are set out in an application that was filed within the originating application.
The application was filed on 29 October 2015 pursuant to a deed of settlement reached between the parties. It seeks from the court that a will dated 11 October 2012 be admitted to probate and specific further and better provision from the estate of the deceased. The will dated 11 October 2012 was not part of the originating application, but that only requires formal amendment of the originating application to include that will as the one to be admitted to probate. I order that that amendment be made.
The first question to be considered is whether or not the will dated 11 October 2012 should be admitted to probate. The second is whether or not the deed entered into by the parties for further and better provision should be made the orders of the court.
Dealing first with the question of whether that will should be admitted to probate, I should say something of the circumstances of the deceased and the wills made by her.
The deceased, Glenda McClelland, died on 19 October 2013 at the age of 60. The cause of death was noted on her death certificate as alcoholic hepatitis, decompensated liver failure, renal failure, multi-organ failure, iron overload, depression, anxiety, gastroesophageal reflux disease, hypertension and long-term alcohol abuse. The death certificate also notes that she had been married three times: first at the age of 20 to Kenneth James Harding; secondly at the age of 46 to John Charles Turnbull; and thirdly at the age of 60, earlier in the year in which she died, to Robert Patrick McClelland.
The deceased herself had two children, Keryn Jean, who was 41 years old at the date of her mother’s death, and Adrian James, who was 38 years at the date of his mother’s death. When the deceased married John Charles Turnbull, he already had two children, Kerry Hartshorn and Christine Lea Jenkins, as they are now known. It appears from the affidavits which have been read before me that the four children regarded themselves as siblings and as children of Mr Turnbull and the deceased. It appears that Mr Turnbull and the deceased made wills on 21 April 2005, which were in similar terms; that is, that they left the entirety of their estate to their surviving spouse, and if that spouse should predecease them, to each of the four children equally without regard to whether or not that child was a natural child or a stepchild of the deceased.
It appears that both the deceased and Mr Turnbull became alcoholics, and the situation deteriorated further until and after Mr Turnbull died, having taken his own life, on 5 March 2011. The relationship of all of the children with Mr Turnbull and the deceased suffered as a result of the alcoholism of their parents. The deceased made, it appears, three wills subsequent to the death of Mr Turnbull: one on 21 April 2011; one on 11 October 2012; and, finally, one on 9 September 2013, not long before her death.
Following her death, each of the four children, who are the applicants before me, disputed the validity of the 2013 will and filed the originating application which led to this application being made on 18 July 2014. The parties have agreed to compromise the proceedings on the basis that the will dated 11 October 2012 be admitted to probate together with further provision being made for the respondent, Robert McClelland, the surviving spouse of the deceased, and the two stepchildren of the deceased so that each of the children receives an equal share without regard to whether they are stepchildren or natural children.
I am satisfied that the will dated 11 October 2012, which was explicitly made in contemplation of her marriage to Mr McClelland, was duly executed and that the deceased knew and approved of its contents. There is no evidence before me which would sufficiently rebut the presumption of capacity in relation to that will. The will was drawn by a firm of solicitors who had previously acted for her – in other words, they were her solicitors – and, as I have said, there is not sufficient evidence to persuade me that the presumption of capacity should be displaced.
So what of the will made immediately prior to the death of the deceased? No one is seeking to propound that will. All of the relevant parties agree that there is evidence giving rise to a well-founded suspicion of the invalidity of that will. That agreement as to the well-founded suspicion of invalidity appears to be well based given the proximity of that will to the death of Mrs McClelland from the ailments referred to in her death certificate.
In those circumstances, where all relevant parties have compromised the matter, there was no one seeking to propound the 2013 will, and the 2012 will appears to be valid, I am prepared to make the orders that, subject to the formal requirements of the Registrar, the deceased’s will dated 11 October 2012 be admitted to probate and that probate should be granted to Keryn Jean Butterworth and Adrian James Harding, the respondent having renounced his appointment as executor under that will.
The next question involves whether or not the court should make the orders agreed to by the parties for further and better provision from the estate. I have had the advantage of reading the affidavit material filed on behalf of those parties. I am satisfied that the two-stage process set out in Singer v Berghouse[1] has been satisfied in that the stepchildren have been left without adequate provision for their proper maintenance, education and advancement in life, and the same is true of Robert Patrick McClelland under the 2012 will.
[1] (1994) 181 CLR 201; [1994] HCA 40.
I am also satisfied that the provision agreed between the parties is the appropriate provision to be made out of the deceased’s estate for the two stepchildren and the surviving spouse of the deceased. Each of them has set out in detail their very necessitous situations. The agreement between the parties, which seems to me to be extremely fair, also has the wisdom that it avoids the greater expense involved in further litigation, which would only serve to deplete the estate and leave all parties concerned with even less than they would currently receive.
In the circumstances, I order that, pursuant to section 41 of the Succession Act 1981 (Qld), further provision for Robert John McClelland out of the estate of the deceased be made, such that the deceased’s will dated 11 October 2012 be read and construed as if clause 4 and clause 5(a) were deleted and this clause 4 stood in their place:
I give all of my household chattels and any motor vehicles and boats which I may own at the date of my death, together with the sum of $100,000 from the proceeds of sale of my property at unit 8/21-27 Sylvan Beach Esplanade, Bellara, Queensland, more particularly described as lot 8 on survey plan 105611, County of Canning, Parish of Woorim, title reference 50225075, to the said Robert Patrick McClelland.
I further order that, pursuant to section 41 of the Succession Act 1981 (Qld), further provision for Christine Lea Jenkins and Kerry Hartshorn out of the estate of the deceased be made such that the deceased’s will dated 11 October 2012 be read and construed as if clause 5(b) were in the following form:
To those of my children, Adrian James Harding, Keryn Jean Butterworth, Christine Lea Jenkins and Kerry Hartshorn as survive me, if more than one, then as tenants in common in equal shares absolutely.
I make no order as to costs.
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