McDermott v McDermott
[2023] QSC 163
•20 July 2023
SUPREME COURT OF QUEENSLAND
CITATION:
McDermott v McDermott & Anor [2023] QSC 163
PARTIES:
CHRISTOPHER MARTIN MCDERMOTT
(applicant)
v
SHONA ELIZABETH MCDERMOTT (Executor)(first respondent)
and
HELEN MARY CHISHOLM BUCHANAN (Executor)
(second respondent)
FILE NO/S:
BS 7289 of 2018
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
20 July 2023
DELIVERED AT:
Brisbane
HEARING DATE:
7 to 9 September 2022 and 23 September 2022. Further submissions received 23 December 2022.
JUDGE:
Brown J
ORDER:
1. The proceedings are dismissed.
2. The parties make any submissions as to costs, limited to three pages, within 28 days.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicant applies for an order that adequate provision be made for his maintenance and support than was made under his father’s Will and Codicil – where the applicant contends that the provision made for him by his father is insufficient to meet the expenses of maintaining the family home and allowing him to meet personal expenses which were formerly met by his father – whether the Court should make additional provision for the applicant than was made under his father’s Will and Codicil
Succession Act 1981 (Qld)
Albury & Anor v Sammut [2019] QSC 105
Anderson v Teboneras & Anor [1990] VR 47
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Carrington v Wallace [2019] NSWSC 1301
Chan v Chan [2016] NSWCA 222
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Daley v Barton & Anor; Barton v Daley [2008] QSC 228
Goodman v Windeyer (1980) 144 CLR 490
Hartley v Hartley [2022] QCA 96
Higgins v Higgins (2005) 2 Qd R 502
Hills v Chalk [2008] QCA 159
In re Goodwin [1969] 1 Ch 283
O’Brien v McCormick [2005] NSWSC 619
Perpetual Trustees Queensland Limited v Mayne [1992] QCA 417
Perrin v Morgan [1943] AC 399
Pizzino v Pizzino [2010] QSC 35
Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9
Re Adamow (1989) 97 FLR 410
Re: Alleyn (deceased) [1965] SASR 22
Singer v Berghouse (1994) 181 CLR 201
Tanev v Tanevski [2017] NSWSC 1301
Vigolo v Bostin (2005) 221 CLR 191
White v Barron (1980) 144 CLR 431COUNSEL:
The applicant appeared on his own behalf
RT Whiteford for the respondentsSOLICITORS:
The applicant appeared on his own behalf
Merthyr Law for the respondents
William Terence Chisholm McDermott died on 6 October 2017. He was survived by his three children, Shona McDermott, Helen Buchanan and Christopher McDermott, the applicant. All three children benefited under William’s Will dated 17 July 2015 and Codicil dated 3 October 2017. The question is whether the Court should make additional provision for Christopher than was made by William under his Will and Codicil.
By his originating application filed 6 July 2018, Christopher seeks by way of further provision under s 41 of the Succession Act 1981 (Qld) (“Succession Act”), that the Will is read and construed as if:
(a)Unit 2/19 Bank Street, West End was given to the trustee of Christopher Martin McDermott’s Testamentary Trust (“CMMTT”); and
(b)Unit 8, Kenmore Medical Centre was “shared” by Shona and the trustee of the CMMTT as the Court determines.
Shona and Helen are the executors under their father’s Will and respondents to this application.
Without any disrespect, I will refer to each family member by their first name.
This matter has a long and protracted history with many delays complicated by Christopher acting for himself. In particular, after the hearing of this matter was complete, Christopher sought to put in further evidence and submissions. While he was told he would need to seek to relist the matter and make an application in respect of any evidence, the Court finally listed the matter to ascertain what Christopher was seeking to do and made orders to allow him to provide further authorities he wished to rely on and for the respondents to reply.
The Court’s determination in family provision cases requires a two-step process:
(a)first, the Court must determine whether the disposition of the estate by the Will made adequate provision for the proper maintenance and support of Christopher; and
(b)secondly, if satisfied that adequate provision was not made, the Court must then determine what provision should be made to make adequate and proper provision for Christopher.
During the course of the hearing, Christopher wished to raise many allegations, particularly in respect of the executors’ conduct after William’s death, which I determined were not relevant to the family provision application. Christopher was therefore not permitted to pursue those allegations at the hearing. He did, however, wish to raise a question in relation to the construction of the Will and the ejusdem generis rule. I will consider that matter as it is relevant to determining what provision was made for him under the Will.
Relevant factual background
Assets
William was a retired dentist. He appears to have made sound investments during his lifetime and when he died his assets were as follows:
59 Lather Road, Moggill
$1,075,000.00 Unit 11 Kenmore Medical Centre,
2081 Moggill Road, Kenmore
$446,000.00 Unit 8 Kenmore Medical Centre
$446,795.00 Unit 2/19 Bank Street, West End
$1,050,000.00 Cash
$86,613.45 1400 Telstra shares
$4,632.60 Ford Laser Motor Vehicle (228-REZ)
$ Nominal
$3,109,041.05
Less tax
$42,595.80
$3,066,445.25
As at the time of hearing, the assets and liabilities of the estate were estimated to be:
59 Lather Road, Moggill
$1,200,000.00 Unit 11 Kenmore Medical Centre, 2081 Moggill Road, Kenmore
$600,000.00 Unit 8 Kenmore Medical Centre
$575,000.00 Unit 2/19 Bank Street, West End
$1,100,000.00 Cash
$222,609.83 1400 Telstra shares
$5642.00 Ford Laser motor vehicle (228-REZ)
$ Nominal
$3,703,251.83
Less:
Tax (2022)
$2,200.10
Legal fees/admin costs for trial and completion of administration
$108,300.00 Statutory interest on legacies to grandchildren
$18,800.00
$129,300.01
$3,573,951.73
Any other assets?
Two issues were raised at the hearing about the extent of William’s assets and whether they were part of the estate.
Christopher contended that a pouch containing silver coins was kept by his father at the family house. He sought to contend, or at least infer, that the coins had been removed by one of his sisters. I accept both respondents’ evidence that if such coins existed, they were unaware of them. According to Christopher, the coins cannot be found. I cannot on the evidence before me determine whether such coins existed or what happened to them, but I am not satisfied that at the time of William’s death they still existed or that they were removed after his death. They are therefore properly not included as part of the assets of the estate for the purposes of this application.
A further question arose during the hearing in relation to monies given by William to two of his grandchildren, Kesley and Dorian, which had not been repaid at the time of his death. It was uncontentious that William had made such loans and they had not been repaid. A spreadsheet found in William’s financial papers, which was identified as being in his writing, had a notation beside Kesley and Dorian’s debts suggesting they had been “written off”. I accept that the spreadsheet was created by William. That the loans were recorded as “written off”, which given the figures applied to both loans, accorded with what William had told his daughter Shona over coffee in relation to his intention. Shona and Helen interpreted the spreadsheet as indicating that William had forgiven those debts and were treating them as such. Ultimately, Christopher did not contend that those debts remained outstanding.[1]
[1]See page 15 paragraph (a) of Christopher’s Closing Submissions.
William’s Will and Codicil
Under the Will and Codicil, William, amongst other things:
(a)appointed Helen and Shona as executors. Probate was granted to them on 19 February 2018;
(b)left $20,000.00 to each of his grandsons: Kesley, Dorian (Shona’s sons) and Jack (Helen’s son);
(c)left Unit 2/19 Bank Street, West End (Unit 2) and one-third of the residuary estate to Helen;
(d)left Unit 8 Kenmore Medical Centre, 2081 Moggill Road, Kenmore (Unit 8) and one-third of the residuary estate to Shona;
(e)left 59 Lather Road, Moggill (the Moggill Property), which had been the family home, to Gilbert May (or if that appointment failed to Jason May) as trustee to permit Christopher to live there for life, but having power, at Christopher’s request or if the trustee deemed appropriate, to sell the Moggill Property and buy another residence for Christopher including by paying the entry fee into a care facility;
(f)directed that any surplus money remaining from the proceeds of sale of the Moggill Property after the purchase of alternative accommodation for Christopher be given in equal shares to Helen, Shona and a trust established under the Will for Christopher, the CMMTT;
(g)provided that, on Christopher’s death, the Moggill Property (or the alternative accommodation) was to fall into the residuary estate;
(h)established the CMMTT with Gilbert May (or if that appointment failed, Jason May) as trustee thereof and under cl 9(e) provided for Unit 11 Kenmore Medical Centre (Unit 11) and one-third of the residuary estate to form part of the trust fund to be held by the trustee of that trust;
(i)nominated Christopher, Helen, Shona and any lineal descendant of each of them as beneficiaries of the CMMTT;
(j)cl 8(a) of the Will was amended by the Codicil to provide that:
“… Upon the receipt of the net lease income derived from the lease of Unit 11, Kenmore Medical Centre my trustees will pay, after the commission provided for in clause 16, all expenses associated with the maintenance and upkeep of the Moggill house including but not limited to the rates, levies and taxes imposed on the house and land, the premiums on any insurance policies taken out by my trustees on the house and the costs associated with the upkeep of the residence;”
(k)the CMMTT was to hold the assets of that trust “upon the terms set out in clauses 10 and 11”. Clause 9(e) of the Will provided that the CMMTT:
“… pay a regular allowance from the trust fund to Christopher for his use and benefit for his lifetime …”
(l)by cl 11(c) gave the trustees of the CMMTT discretion to distribute trust income and capital of the trust fund to one or more of the beneficiaries of the trust until the vesting date (80 years from the date of the deceased’s death or such other date as the trustee appoints); and
(m)provided that on the vesting of the CMMTT, the trust capital be divided between the beneficiaries then living in equal shares.
Three provisions in the Will sought to explain the disposition made by William to Christopher and his intention in doing so, namely cls 2, 8(f) and 15 which are in the following terms:
2My will has been drafted to complement the plan and structure of my estate and financial affairs. I have determined that my son CHRISTOPHER MARTIN MCDERMOTT (“Christopher”) should take his inheritance to a testamentary discretionary trust created by this will …
8(f)My intention is to ensure Christopher’s well-being as he suffers from a medical condition which has precluded him from being gainfully employed for many years and in respect of which he has been receiving the disability support pension. He has difficulty with saving money and cannot budget …
15The primary purpose for creating “Christopher Martin McDermott’s Testamentary Trust” is to provide or promote the maintenance and well-being of Christopher during his lifetime and I accordingly express the wish that the capital of the trust fund of “Christopher Martin McDermott’s Testamentary Trust” be preserved as much as is practicable and income only be drawn upon.
Christopher seeks, by way of further provision under Succession Act that the Will is read and construed as if:
(a)Unit 2/19 Bank Street, West End was given to the trustee of CMMTT; and
(b)Unit 8, Kenmore Medical Centre was “shared” by Shona and the trustee of the CMMTT as the Court determines, although in his closing submission he stated that he needed “half of Unit 8 to fix up all of the damage caused by the White Ants”.
What provision was made for Christopher?
Thus, under the Will, Christopher is a beneficiary of the CMMTT from which provision can be made for him to have a regular allowance. The Moggill Property is also held on trust. Provision is made under the Will for Christopher’s accommodation. The trustee must permit Christopher to live at the Moggill Property or, in the event the property is sold, purchase another property for Christopher’s accommodation with any sale proceeds not used to fall into the residuary estate in the terms set out above. The expenses of the Moggill Property were to be met, at least in part, by the trust fund of the CMMTT.
One of the difficulties in this application is the fact that Christopher approached it as if the CMMTT was already set up. It has not been set up, as the executors were, quite properly, awaiting the outcome of this application.
Another difficulty is the scope of what expenses the trustee is to meet when the CMMTT is established. As it effects the scope of what provision has been made for Christopher, it is necessary for the Court to consider the issue, although it will be for the trustees to determine whether or not expenses fall within cl 8(a) of the Will.
In respect of cl 8(a) of the Will, there was some controversy between the parties as to what fell within “my trustees will pay all the expenses associated with the maintenance and upkeep of the Moggill [Property]” and “including but not limited to the rates, levies and taxes imposed on the house and land, the premiums on any insurance policies taken out by my trustees on the house and the costs associated with the upkeep of the residence”.
The first point of issue is whether, as Christopher contends, cl 8(a) of the Will provides for the trustees to pay any expenses associated with Christopher living at the Moggill Property, including Christopher’s electricity, telephone and internet charges. Christopher contends they are expenses associated with the maintenance and upkeep of the Moggill Property.
The respondents contend that those costs are costs for services consumed by Christopher personally and are not costs associated with the maintenance and upkeep of the Moggill Property, nor are they rates, levies and taxes imposed on the house and land. The respondents contend that Christopher’s personal expenses are provided for under cl 8(e) of the Will,[2] which provides for Christopher to be paid “a regular allowance from the trust fund for his use and benefit for his lifetime”.
[2]Wrongfully referred to as cl 8(c) in the respondents’ submissions.
Clause 8(a) is broad in its terms but is directed to those expenses which are needed to preserve[3] the Moggill Property by ensuring all statutory taxes or levies which arise from the fact of ownership of the land are met, that insurance policies to insure the house are maintained, and that the property is maintained in a good condition.[4] The respondents give examples of expenses that are likely required to be paid by trustees such as the cost of maintaining structures connected to or providing access to the house such as water pipes on the septic tank.
[3]The Australian Oxford Dictionary (2nd ed, online at 18 July 2023) defines ‘maintain’ to include “preserve” and “provide for the preservation of (a building, machine, road, etc) in good repair”.
[4]The Australian Oxford Dictionary (2nd ed, online at 18 July 2023) defines ‘upkeep’ to mean “maintenance in good condition”.
Christopher also contends that cl 8(a) extends to the cost of maintaining the land namely mowing, removing rubbish from the yard and gardening, being costs relating to the “maintenance and upkeep of the Moggill [Property]” and “costs associated with the upkeep of the residence”.
In construing wills, the plain or common meaning of words must be used, unless the testator has used technical legal words. The will must be considered as a whole in determining the testator’s intention. In that regard, the question is not what the testator meant to do when making the will but what the written words used mean in their context.[5]
[5]Perrin v Morgan [1943] AC 399 at 420. See also Carrington v Wallace [2019] NSWSC 1301 at [57] citing GE Dal Pont and KF Mackie, Law of Succession (LexisNexis, 2nd ed, 2018) at [8.4].
The usual or ordinary meaning of the word “residence” is “the place, especially the house, in which one resides; dwelling place; dwelling”.[6] That would extend to the immediate surrounds of the house. Where a property includes, as in the present case, a large amount of land, it is unlikely that a person would be regarded as residing in bush surrounds, although some work may need to be done in those areas to maintain the residence from time to time.
[6]Macquarie Dictionary (online at 29 June 2023) ‘residence’ (def 1). See also Australian Oxford Dictionary (2nd ed, online at 18 July 2023), which defines ‘residence’ to include “the place where a person resides; an abode”.
In some cases, where a particular class is spoken of and general words follow, the class mentioned is to be taken as the most comprehensive and the general words treated as referring to matters “ejusdem generis”, that is, “of the same kind”. The rule was applied by Hogarth J in Re: Alleyn (deceased).[7] In that case, his Honour held that a bequest of “all my shares, bonds &c I have” did not include money on fixed deposit because “&c” was to be read as referring to property ejusdem generis with shares and bonds.
[7][1965] SASR 22 at 24–26.
However, if a clause construed in the context of the entire will reveals a contrary intention, the words take the ordinary meaning and the ejusdem generis rule will not apply so that the words will not be confined by the narrower class.
In the present case, it does not appear to me to be necessary to revert to the ejusdem generis rule given the meaning of the words are apparent from the context in which they appear. The words of cl 8(a) of the Will, while of a broad nature, pertain to those costs and expenses with respect to the maintenance and upkeep of the Moggill Property or upkeep of the residence. On any natural reading, notwithstanding the use of the phrase “including but not limited to”, the expenses in respect of maintenance or upkeep of the house or residence do not extend to personal expenses that may be incurred while residing at the house and which rely on personal consumption albeit connected to the house such as an internet connection or telephone. Similarly, electricity also depends on personal consumption albeit connected through the house. This is consistent with the Will when read as a whole, particularly given the provision for Christopher to be paid a regular allowance for his use and benefit. To the extent that “rates, levies, and taxes imposed on the house and land, the premiums on any insurance policies” identifies a class, it is a cost imposed by a regulatory authority or a cost to preserve the house and its immediate surrounds. The class does not extend to expenses relating to personal usage. It does not, therefore, extend to things such as electricity, telephone, and the internet. In this case, the residence has a pool which would require a pool filter for which electricity would be necessary. It may be that if the trustees consider that the pool requires the pool filter to be run to maintain it, they need to contribute to the electricity. It is not appropriate for me to decide that question as part of this application.
There was also a dispute as to whether the mowing man’s expenses fall within the meaning of the “upkeep of the residence”. The upkeep of the residence would at least extend to the land immediately surrounding the house and would include mowing. However, it is unlikely that maintenance or upkeep of the broader area surrounding the house would constitute such an expense, at least on a regular basis, unless it impacted on the residence. That would be a judgement needed to be made by the trustees.
There is, however, some misconception on Christopher’s behalf insofar as he appears to believe that cl 8(a) of the Will in terms of the upkeep of the yard and house at the Moggill Property would require the trustees to undertake any work which he considers should be done, which may or may not be necessary for the upkeep of the residence. Christopher may, of course, request that certain works be done, and no doubt, because he is living at the Moggill Property, give valuable input to the trustees as to what needs to be done. It is however the trustee’s decision, not Christopher’s decision, to determine what is necessary for the maintenance and upkeep of the Moggill Property.
While the executors have been meeting costs in relation to the house and garden, albeit not to the extent Christopher thinks necessary, that has been done in their role as executors and not as trustees of the nominated trust. Thus, to the extent that Christopher complains that costs have not been met as required under the terms of the CMMTT, that complaint is misconceived.
Christopher’s regular allowance
As to the construction of a “regular allowance … for [Christopher’s] use and benefit”, that is an allowance to be provided from the income of Unit 11 and one-third of the residue of the estate in the event the Moggill Property is sold. The allowance is within the trustee’s discretion, having regard to the fact that there is also an obligation to meet the expenses of the Moggill Property out of CMMTT property. The trustee will also have to take into account the fact that pursuant to cl 15 of the Will, the purpose of the CMMTT is to “provide or promote the maintenance and well-being of Christopher during his lifetime” with the expressed wish “that the capital of the trust fund of [CMMTT] be preserved as much as is practicable and income only be drawn upon.” The reference to “allowance” in the context of that clause means an amount of money paid regularly to a person to meet needs or expenses.[8] In the context of it providing for the allowance to be paid regularly, it is a sum to be used by Christopher as he considers necessary to meet his needs and expenses, not a payment for each and every expense incurred by him. Given that Christopher had not worked for some time prior to the Will being made and was on a disability pension, one can infer that the allowance was intended to supplement any government support he received such as a disability pension, a matter which was acknowledged in cl 8(f) of the Will.
[8]The Australian Oxford Dictionary (2nd ed, online at 20 July 2023) ‘allowance’.
The respondents’ counsel framed the intent of the Will to be to provide Christopher with accommodation and contribute towards his other expenses but also that Christopher pay his own way after William’s death. In my view, the correct characterisation of William’s intention reflected from the terms of the Will as a whole and its structure is slightly different. It is clear from the terms of the Will that William intended to benefit all those he considered had a legal claim on his estate, which was primarily his children and to a lesser extent his grandchildren. In Helen and Shona’s case, he determined that they would have the benefit of Unit 2 and Unit 8 absolutely when the estate was distributed. While they are each entitled to one third of the residuary estate, that entitled will not arise until after Christopher’s death or when the Moggill Property is sold and there is surplus after the purchase of accommodation for Christopher. His grandchildren were given a specific gift. As to Christopher, William wished to ensure that Christopher had accommodation for the rest of his life and the means of paying for the incidental expenses associated with having a property. If Christopher wished to stay at the Moggill Property, then William recognised the costs of being able to maintain the property by providing for its expenses to be met from the trust fund. In that regard, William provided for Unit 11 to be placed into the CMMTT. Christopher was not the only beneficiary but provision was made to allow the trustee to pay him a regular allowance out of the trust fund which would supplement his disability pension, or if the Moggill Property was sold his share of the residuary estate which was surplus after the property was sold. The amount available is subject to the trustee meeting the costs and expenses of the Moggill Property as provided under cl 8(a) of the Will. It is evident, however, that it was not William’s intention that the trustees had to meet every cost and expense of Christopher under the CMMTT.
Principles for determining whether adequate provision for the proper maintenance and support of Christopher was made under the Will
Sections 41(1), (1A) and (2) of the Succession Act provide that:
41Estate 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.
(1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.
(2)The court may—
(a) attach such conditions to the order as it thinks fit; or
(b) if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
(c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.
Section 41(1) of the Succession Act requires the Court to undertake a two-stage process, as was set out in the joint judgment of Mason CJ, Deane and McHugh JJ in Singer v Berghouse:[9]
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination is made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant. The first stage has been described as the ‘jurisdictional question’.”
[9](1994) 181 CLR 201 at 208–209.
The majority further described what was involved in the determination of each stage:[10]
“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant.”
[10]Singer v Berghouse (1994) 181 CLR 201 at 209–210 affirmed in Vigolo v Bostin (2005) 221 CLR 191 at 207 [37], 218 [74] and 220 [82]–[83].
The Queensland Court of Appeal in Hartley v Hartley[11] recently reiterated the two-stage approach to be adopted by a court in determining a family provision application, adopting the observations of Mullins J (as her Honour then was) in Pizzino v Pizzino:[12]
“[50] The first stage of the process or the jurisdictional question is one of fact determined at the date of the hearing, even though it involves the making of value judgments on whether the applicant has been left without adequate provision for his proper maintenance and support, as at the date of the deceased’s death: Singer at 209-211. The factors that will be considered on the jurisdictional question include the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims on her bounty: Singer at 210. The nature of the enquiry undertaken by the court on the jurisdictional question was analysed in Hills v Chalk [2008] QCA 159 at [39]-[41] (per Keane JA), [128]-[139] (per Muir JA) and [212] (per Fraser JA).
…
[53]If it is necessary to proceed to the second stage of the process, it involves similar considerations to the jurisdictional question (Singer at 210) and s 41(1A) of the Act is applicable. In addition to the matters specified in s 41(1A) of the Act, the respondents and applicant’s sons also rely on the application of s 41(2)(c) of the Act.
[54]In determining the second stage, the court exercises its discretion on whether to make an order in favour of the applicant by reference to the circumstances as they exist at the date of the order: White v Barron (1980) 144 CLR 431, 444.
[55]The jurisdiction under provisions such as s 41(1) of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice: Hughes at 146.”
[11][2022] QCA 96.
[12][2010] QSC 35 at [49]–[55].
As to the first stage and determining the question of jurisdiction, the phrase “adequate provision for the proper maintenance and support” means “maintenance and support … at a level or degree appropriate to the applicant in all of the circumstances of the case.[13] The concept is a relative one, with no fixed standards, and the Court is left to form opinions upon “the basis of its own general knowledge and experience of current social conditions and standards.”[14] According to the Privy Council in Bosch v Perpetual Trustee Co Ltd, the amount to be provided is not to be measured solely by the need of maintenance, otherwise the Court would only be concerned with adequacy.[15] The Privy Council in particular noted that the use of the word “proper” is of significance and “proper maintenance” required the Court to take into consideration the size of the estate left by the deceased. If the estate is a large one, the Court will be justified in meeting contingencies that might have had to be disregarded if the estate was small.
[13]Anthony Dickey, Family Provision After Death (Law Book Co, 1992) at 102.
[14]Goodman v Windeyer (1980) 144 CLR 490 at 502.
[15][1938] AC 463 at 478.
In Hills v Chalk, Keane JA stated:[16]
“Judicial statements of high and longstanding authority explain that the evaluative assessment whether ‘adequate provision’ has not been made for the ‘proper maintenance and support’ of an eligible person must be made from the perspective of the deceased person on the assumption that the deceased was alert to the considerations relevant to the making of ‘adequate’ provision for the ‘proper maintenance and support’ of the claimant. In Bosch v Perpetual Trustee Co, Lord Romer, delivering the advice of the Judicial Committee of the Privy Council said that ‘in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father.’ There have been expressions of doubt as to the validity of supporting the postulate of the wise and just testator or testatrix by referring, as Lord Romer did, to the ‘moral duty’ of the testator or testatrix. In Singer v Berghouse, Mason CJ, Deane and McHugh regarded the introduction of notions of ‘moral duty’ or ‘moral obligation’ as a gloss upon the language of the Act. Neither these observations in Singer v Berghouse nor the discussion of the point in Vigolo v Bostin cast doubt on the continuing validity of approaching the determination of whether ‘adequate provision’ has been made for the ‘proper maintenance and support’ of an eligible claimant by reference to the postulate of a wise and just testator or testatrix.” (footnotes omitted)
[16][2008] QCA 159 at [40].
In considering the question of adequate provision, the Court must look to what is “necessary or appropriate prospectively from that time”, namely the time of death, including events which are contingent as well as those which are more certain or likely.[17] Unusually, hindsight may be taken advantage of provided the subsequent occurrences fall within the range of reasonable foresight.[18]
[17]Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508 (per Dixon J).
[18]White v Barron (1980) 144 CLR 431 at 441 (per Mason J).
As is apparent from the authorities cited above, the Court must take into account all relevant circumstances including the applicant’s financial position, the size and nature of the estate, the relationship between the applicant and the deceased and between the deceased and others with a legitimate claim upon the estate, whether the person is able-bodied, and the effect of inflation.[19] The standard of living of the applicant during the deceased’s lifetime is also relevant, as is the amount necessary for the applicant’s maintenance and survival.[20]
[19]Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9 at 19.
[20]Daley v Barton & Anor; Barton v Daley [2008] QSC 228 at [150].
In making its determination, the Court must take into account those with competing claims on William’s estate. Those claims are the claims of persons who would expect to be benefited under a deceased’s will, even if those persons would not be eligible to make a family provision claim by virtue of their circumstances.[21] In the present case, it is the claims of William’s three children and grandchildren to which the Court has regard. It was not in dispute that William’s grandchildren should receive the benefit of their legacy under the Will regardless of the outcome of this application.
[21]Albury & Anor v Sammut [2019] QSC 105 at [74].
The Court’s role in determining the family provision application is not to seek to achieve a “fair” or “equitable” disposition of the deceased’s estate.[22] Nor is the purpose of the legislation to ensure that siblings are treated equally.[23]
[22]Perpetual Trustees Queensland Limited v Mayne [1992] QCA 417; GE Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2021) at [15.14] and the cases cited therein.
[23]See, for instance, Higgins v Higgins (2005) 2 Qd R 502 at [46].
Christopher’s contention is that the provision made for him by his father is insufficient to meet the expenses of maintaining the Moggill Property and allowing him to meet personal expenses which he contends were formerly met by his father.
The question of whether or not Christopher was left without adequate maintenance must be answered at the date of William’s death.[24]
[24]Hills v Chalk [2008] QCA 159 at [47] referring to Barwick CJ in White v Barron (1980) 144 CLR 431 at 437.
In December 2022, Christopher provided some 12 pages of case and text references which he considered were relevant to the present case. I have reviewed that list of authorities and to the extent that I could determine they are relevant I have considered them. In particular, Christopher referred to cases in relation to able-bodies sons and to the fact that in some cases a person can show that their earning powers are impaired by a disability such that they have a special need for maintenance and support.[25] That of course is relevant. The fact that someone is an able-bodied son does not exclude them from being able to make a claim for a family provision, although earlier authority suggested otherwise. A testator may have a moral obligation to an adult son. In the present case, William recognised Christopher’s impairments and limitations which meant that he could not be employed and recorded them in the Will. They are clearly part of the circumstances which the Court considers in determining whether adequate provision has been made for Christopher, as is Christopher’s relationship with William and his living arrangements with William prior to his death.
Relevant position of each of the beneficiaries
[25]For example, Anderson v Teboneras & Anor [1990] VR 47.
Christopher
At the time of William’s death in October 2017, Christopher was 59 years of age. He was and is single and has no children. He has been unemployed and receiving a disability pension for some years. Christopher lived with William for several years prior to William’s death. It was not in contention that Christopher has no assets of significant value.
Notwithstanding the numerous affidavits and the clear effort that Christopher has made, the evidence presented by Christopher is disorganised, prolix and difficult to navigate in order to identify the evidence that is relevant to his application. The respondents did not undertake an exercise of going through each affidavit to isolate the evidence that was relevant and object to that which was not due to the size and cost of the task. Christopher’s evidence was particularly focussed on what he considers needs to be carried out at the Moggill Property, particularly in respect of damage caused to the Moggill Property by white ants since 2020, the need for more lawnmowing and removal of trees and roots, and some plumbing issues.
At the time of his father’s passing, Christopher was receiving a disability pension and evidently had not been employed for a number of years. In his 2019 affidavit, Christopher referred to receiving $933.40 a fortnight. He provided a Centrelink statement from 12 December 2019 which showed he received a disability support pension of $850.40, an energy supplement of $14.10 and a pension supplement of $68.90, and indicated that he had $1,000 worth of assets.[26] Christopher estimates that he now receives some $987.60 per fortnight from the disability pension paid by Centrelink, which is an increase from the amount which Helen used in estimating his income and expenses to assist the Court.
[26]Exhibit CMM-40 to the Affidavit of Christopher Martin McDermott affirmed 30 December 2019 (CFI 9).
The evidence available in relation to Christopher’s debts was scant. On 10 January 2020, Christopher had credit card debts of about $1,700 and a SPER debt of approximately $2,500. According to Christopher’s submissions, he has paid off those debts. He provided Bank of Queensland statements identifying visa card transactions and his NAB statements.[27] Christopher drives William’s 1991 Ford Laser, which has been transferred into Christopher’s name by the executors.
[27]Affidavit of Christopher Martin McDermott affirmed 10 January 2020 (CFI 12).
Christopher appears to suffer from an unidentified psychological condition. There is some suggestion by Christopher of Obsessive-Compulsive Disorder and observations of anxiety in medical reports at different times. Christopher has had a number of investigations in the past, particularly in 2010, which show he has had issues with respect to his shoulder, hip, spine (with mild spondylosis reported) and an injury to his knee.[28] Christopher indicates that some of those issues are ongoing such that, for instance, he needs a car for shopping. He states he had Ross River fever in the past and needs a special blood test which is not paid for by Medicare. There was, however, no evidence before the Court as to how these matters actually affected Christopher in his day-to-day functioning, any ongoing medical needs or any long-term effects, save for a letter from Kenmore Medical Clinics indicating Christopher was suffering from low back, back, neck and foot pain on 16 December 2021 which would take some seven months to settle.[29] The respondents accept that Christopher suffers from conditions which cause pain and limitation in the movement of his neck, back and knees and may have limitation of movement of the tendons of both hands and Ledderhose disease of the feet.
[28]For which there was a further radiology report dated 16 March 2020. See Exhibit 2 to the Affidavit of Christopher Martin McDermott affirmed 10 August 2022 (CFI 37).
[29]Exhibit 13 to the Affidavit of Christopher Martin McDermott affirmed 16 May 2022 (CFI 34).
Christopher also had a significant car accident after William’s death in which he suffered some significant injuries.
Christopher was educated up until Grade 12 and did a university course in accounting for one year but did not complete it.
When Christopher lived with William, he lived rent free. It was uncontentious that a number of the household expenses and some of Christopher’s additional expenses were paid by William, although the particularisation of those expenses is fairly scant. Christopher provided a schedule and some invoices which he stated was incomplete and sporadic rather than allowing the Court to come to any view about his average annual expenses.
As to the expenses for maintaining the Moggill Property, Christopher amongst other things relies on a schedule prepared by his father.[30] The schedule has “2015” in the right-hand corner but “2015” was crossed out and replaced with “2017”. According to Christopher, the schedule demonstrates that at least $27,000 is needed to maintain the Moggill Property. The schedule is headed “Possible Expenses and Income”. It refers to rent of $40,000 excluding GST and a pension of $24,400. It further refers to “Expenses” including rates of $4,140, insurance of $1,600, electricity at $4,000, “repairs-mowing etc” of $5,000, “car reg” of $700, pool of $1,000, car repairs of $800, and phone/internet of $2,000. Those expenses total $19,000. The schedule also refers to “Surgery B/C fees” of $1,500 and rates of $4,500, which presumably relate to the surgery at the Kenmore Medical Centre, as well as “tax/accounting” and 5% to the trustee at $2,000. All expenses recorded in the schedule total $27,000.
[30]Exhibit CMM-42 to the Affidavit of Christopher Martin McDermott affirmed 30 December 2019 (CFI 9).
Christopher asserts that there is no provision for long-term maintenance. He refers to needing a cleaner and states that William had once a fortnight. Christopher states his father paid for the phone, internet, car expenses, dentistry, some medical treatment, and electricity. According to Christopher, his father told him everything would stay the same and all expenses would be taken care of after his death. Christopher has provided an affidavit of costs which show a snapshot of things which he paid for in 2019, 2020 and 2021,[31] which mostly includes personal consumables or costs but also some car maintenance, vehicle registration and insurance, dental costs, plumbing repairs, computer service and equipment, and carpet cleaning.
[31]Affidavits of Christopher Martin McDermott affirmed 7 August 2022 (CFI 38, 39 and 40). While invoices were not attached, no issue was taken. The exercise was not completed.
Christopher has provided numerous quotes for matters which he considers need to be repaired or household items which will need to be replaced in the future. These include matters such as repairs of walls, absorbent trenches, a chimney sweep, repairs of carport roof, roof cleaning, installation of solar systems, installation of air-conditioning, interior and exterior painting, curtains, double-glazed windows, repair of the driveway, repair and installation of fencing, installation of a new hot water system, installation of new carpet for six bedrooms, the hall and lounge and dining rooms, a four-car garage at Banksia St, re-pointing and cleaning of brickwork, and adjustments to drainage to ensure the toilet does not leak.[32] He also includes quotes for cleaning and pool cleaning, termite inspections, a salt water chlorinator, and lawn and ground maintenance.
[32]See, eg, Affidavit of Christopher Martin McDermott affirmed 9 January 2020 (CFI 10).
Christopher makes reference to the executors ceasing payments after he made the family provision application. It is generally accepted, however, that a prudent executor should refrain from distributing any part of the estate after an application is made save in particular circumstances.
Christopher is now 64 years old. There is no suggestion that Christopher lacks capacity or cannot live independently. Christopher stated he and William had a good relationship. The respondents did not suggest otherwise, and I accept that Christopher and William had a good relationship.
Shona
Shona provided affidavit evidence. Shona was 60 years of age at the time her father died and is now 65 years old. She is single and has two adult children who live independently, Kesley and Dorian.
Shona’s most recent statement of total assets indicates that her assets are estimated to be valued at $503,412.54. Her assets consist of:
(a)a unit valued at $440,000;
(b)savings of approximately $55,000;
(c)a 2012 Hyundai motor vehicle estimated to be worth $8,000;
(d)approximately $248,000 in superannuation which pays her a pension of approximately $435 per month; and
(e)an annual income of about $13,771.
Her expenses estimated on an annual basis were $38,330.43, which includes rent of an apartment at Kirra for several months. She states she uses cash savings when her income does not cover her expenses.
Shona works intermittently as a part-time cleaner. She has no significant liabilities.
Christopher makes allegations in his closing submissions about Shona owning a property overseas in India. Shona was not asked about this in cross-examination and there is otherwise no evidence of the existence of such a property. I therefore do not take into account the possibility of such a property.
Shona gave evidence that she had a close relationship with the deceased, particularly after she returned from New South Wales and saw him on regular occasions, up to every second day and at lunch up to twice weekly. In his closing submissions, Christopher suggested that this was not the case, and that Shona and William met no more than once a week. Shona was not challenged about her evidence in cross-examination and I therefore accept her evidence. In any event, whether they met once or twice a week is of little moment. I accept Shona and William had a close relationship. I accept that William also had a close relationship with Shona’s two children, now both adults, particularly once Shona was separated and had moved back to Brisbane to bring up the two boys.
Shona has arthritis in both hands and bilateral carpal tunnel syndrome which limits her ability to work. She had a significant operation in 2008 for cancer.
Shona does not support Christopher’s application because she considers that her father left sufficient assets in trust for Christopher’s maintenance and support and that her father’s testamentary wishes should be respected.
Helen
Helen and her husband, Robert Buchanan, provided affidavit evidence as to their financial position and personal circumstances which had to be corrected at the outset of their oral evidence.
Helen is the youngest child. She was 56 years old at the time her father passed away and is now 61 years old. She is married and has one child, Jack. Jack is 21 years of age and a university student. He presently lives at home and is financially dependent on his parents. He will graduate in the next two years, all going to plan.
Robert has his own business and is a director of Rob Buchanan Electrical Pty Ltd. Helen works in that business providing administrative support.
Helen and Robert have combined assets estimated to be worth over $2.4 million. Those assets and liabilities include:
(a)a unit at West End worth approximately $750,000;[33]
(b)a house at Mt Crosby worth approximately $960,000;
(c)some cash in the bank;
(d)shares in the family company worth $73,625; and
(e)a motorbike worth approximately $12,500.
[33]Unit 1, which she had owned as joint tenant with William but repaid his contribution prior to his passing.
Their liabilities consist of a mortgage of $619,661 which is held by a company owned by Robert’s brother, a personal loan of $69,316.18 and credit cards debts of approximately $15,000, providing a net position of $1,116,447.40.
Helen’s evidence in relation to her superannuation required correction, as did her husband Robert’s, due to their failure to take into account the fact that the proceeds of the sale of a property were paid into their respective superannuation accounts. Helen has superannuation of about $571,863 and her husband has superannuation of about $1,098,154.
Taking into account her superannuation, Helen’s net asset position[34] would be approximately $1.67 million.
[34]Excluding her annual income, estimated to be $50,443 net although it varies year to year, with joint expenses with Robert of $61,781.14.
Robert’s net asset position,[35] taking into account his superannuation, would be approximately $1.6 million.
[35]Excluding his annual income of $82,000 per annum with expenses of $88,727.33.
Helen and Robert each earn an annual income from Robert’s electrical business. Between 2017 and 2021, Helen’s income varied from $40,068 up to $83,134 while Robert’s varied from $34,487 up to $76,310. Robert now earns $82,000 per annum after tax. According to Robert, in recent times they had downsized their company.
Helen and her family had a close relationship with William. He dined and stayed overnight with them weekly, and they took several holidays together.
In recent times, Helen has suffered anxiety and depression which have apparently increased as a result of this litigation.
Was adequate provision made?
The first question is whether the deceased made adequate provision for the proper maintenance and support of the applicant. The onus lies on the applicant, Christopher, to satisfy the Court that in all of the circumstances, the Will fails to make adequate provision for his proper maintenance and support. If the provision is found to be inadequate, then the jurisdiction of the Court to make an order for further provision under Part 4 of the Succession Act is invoked. The relevant time for the considering the reasonableness of the provision made is the date of death of the deceased. The test is an objective one.[36]
[36]In re Goodwin [1969] 1 Ch 283 at 287–288.
As is set out above, provision for Christopher was made by establishing two trusts, one in respect of the Moggill Property and the CMMTT. Unit 11, which was designated trust property, was and is income producing. By his Will, William provided for Christopher to be assured of accommodation rent free and a means to pay the expenses and upkeep of the Moggill Property as well as for the trustee to pay a regular allowance to Christopher.
It is relevant for the Court to take into account the fact that Christopher was in receipt of the pension.[37]
[37]AA Preece, Lee’s Manual of Queensland Succession Law (Thomson Reuters, 8th ed, 2019).
One of Christopher’s principal contentions is that William did not make adequate provision for his proper maintenance and support because the CMMTT was not provided with sufficient funds for long-term maintenance issues and replacement of old household goods.
It is evident from the terms of the Will that William gave careful consideration to providing for Christopher and his well-being in circumstances where Christopher had lived with him for a number of years as an adult and had benefitted from his father meeting the expenses of the house and land and it appears buying sufficient groceries for both he and Christopher. William was also aware of the reasons Christopher could not work and at least his assessment was that Christopher had difficulty saving money and budgeting. Although Christopher challenges that assessment, it does appear to be supported by the fact that Christopher only has personal assets and the lifestyle he enjoyed is as a result of the receipt of the disability pension and his father’s support.
Christopher contends that adequate provision was not made under the Will in order for him to continue to reside at the Moggill Property and for his ongoing expenses on the basis that:
(a)since William has died, the Moggill Property has been affected by white ants and there is evidence of white ant damage which requires significant repair;
(b)the Moggill Property has to be mowed with greater regularity than the executors have been having it mowed and sufficient provision has not been made for its maintenance;
(c)sufficient provision has not been made for Christopher’s expenses under the Will given that William paid for a number of household expenses, purchased grocery items which he shared and paid for car expenses;
(d)he considers provision should be made for cleaning of the house and pool given that was done by him prior to William’s death and he has physical limitations preventing him from doing so;
(e)he has identified a number of items which require repair or replacing and the house and household items are becoming aged and may need replacement in the future for which provision has not been made.
Evidence as to matters in dispute
The Moggill Property
The evidence took some three days. A number of factual issues were, however, not in dispute or were the subject of concessions. Christopher, Shona and Helen were all cross-examined. Ms Hajnal Ban, a friend of Christopher, gave evidence but was not cross-examined. Robert also gave evidence. The real dispute in terms of whether adequate provision has been made arises from Christopher’s assertion of what work needs to be done on the Moggill property or household items purchased and whether and to what is the extent of that work which needs to be done for adequate provision to be made for Christopher’s proper maintenance and support.
Christopher gave evidence. While I found him to be a generally honest witness, though prone to exaggeration and conspiracy theories such that I did not consider that his evidence was reliable in all respects. Christopher’s evidence therefore had to be treated with considerable circumspection and was of limited weight. In particular, Christopher sees the present case in a vortex of what he considers should be the outcome of his application. Notwithstanding Christopher had lived at the Moggill Property for several years, most recently with his father, I did not find his evidence about the state of the property and what needed to be done to be reliably informing the Court as to the state of repair of the Moggill Property at the time of William’s death and what was needed to provide him with a house that was adequate for his proper maintenance and support. I found that Christopher formed his views of what is required to be done at the Moggill Property based on a wish list of matters which he would like done, rather than identifying matters which reasonably needed to be addressed in order to make provision for him. This is reflected by the quotes he obtained, for example to re-carpet the lounge, dining room, hall, and all six bedrooms of the house.
Putting to one side the difficulties that Christopher experiences as a self-represented litigant, his evidence was skewed to accord with his view of what he considers should be done and to advance his case. He lacked objectivity, given he believes his sisters have not acted in the proper way in acting as executors, and sought to raise serious allegations against them with little thought. While Christopher appears to have limitations which have affected his ability to be employed, Christopher appeared to have a view that he was entitled to a greater share of his father’s estate which was not just based on need but by comparison to what his sisters had compared to him.[38] He showed little appreciation for the fact that his sisters had competing claims to his father’s estate, particularly Helen, although in his mind what he sought was partly justified by the fact that improvements to the Moggill Property would benefit all of them because it was part of the residuary estate.[39]
[38]Other beneficiaries do not have to justify a testator’s decision as to what they have left in respect of the estate: Re Adamow (1989) 97 FLR 410 at 415.
[39]For example, Christopher regarded Unit 2 as being something which he should have the benefit of, which included provision being made for him to build additional garages which he considered necessary to accommodate the tenants.
While some criticisms as to the respondents delay in responding to matters Christopher raised may have been justified, a number of those delays arose because of Helen and Shona disagreeing with Christopher as to whether things needed to be done or due to Christopher’s unrealistic view of the time things should take. When Christopher was told in evidence by Helen that she had been told by a contractor that they did not wish to return to do work on the Moggill Property, he spent considerable time arguing that it could not have been due to anything he had done, notwithstanding Helen said she was not there and that was just what she had been told. While William met a lot of household’s expenses, I also considered Christopher was expanding the list as the case progressed to improve his claim, rather than necessarily identifying what is needed for his proper maintenance.
Regular visitors to the Moggill Property were Ms Ban and another gentleman, Mr Stephen Galowski. Ms Ban gave some evidence as to her observations of the white ant damage.[40] Her evidence did not add greatly to the other evidence already given and related to the extent of termite damage. She clearly was giving evidence to assist Christopher’s case. Christopher asked her several leading questions with which she readily agreed, even though she had appeared to have no independent recollection of the matter earlier in evidence. To the extent her evidence was corroborative of other evidence given, I have had regard to it but otherwise gave it little weight. Mr Galowski was not cross-examined but his evidence did not add significantly to other evidence save to the extent that his observations of the Moggill Property which post-dated William’s death supported some of Christopher’s observations.[41]
[40]Ms Ban’s affidavits affirmed 22 December 2019 (CFI 11, 31 and 42) were largely ruled inadmissible.
[41]Affidavit of Stephen Galowski filed 11 June 2021 (CFI 22) part of which was excluded for admissibility.
Notably, Ms Ban did not notice any white ant damage in 2017 when William was alive and had only noticed the damage since that time. She could not remember when she observed the deterioration in the house, but it appeared to be when Christopher started to raise issues about it which was, particularly on Christopher’s evidence, at the end of 2020. Christopher’s evidence was that he had not observed white ants before that time. Ms Ban was not cross-examined.
While Christopher has an attachment to the Moggill Property and it holds many attractions for him, including the ability to see rainbows, William did provide a mechanism by which Christopher could still be assured of accommodation that makes adequate provision for his proper maintenance and support and ensures there are funds in the CMMTT to provide Christopher with an allowance. As was submitted by the respondents, Christopher’s attachment to the property does not establish that he has needs which require him to live only at the Moggill Property. Nor is there evidence that a suitable alternative could not be found for Christopher which he may also enjoy. While he refers to needing a pool for physiotherapy exercises, there was no evidence supporting that and it may well be that alternative premises could have proximity to a pool or a pool within the complex. No doubt if this eventuality arises some sensitivity will be required.
It may be that the trustees will not have sufficient funds to maintain the Moggill Property or to provide Christopher with a sufficient allowance even if they utilise all of the income of Unit 11. However, that does not satisfy Christopher establishing that adequate and proper provision has not been made for him under William’s Will because there is provision for the Moggill Property to be sold and alternative accommodation to be purchased for Christopher with reduced expenses and for one-third of the surplus to be placed in the CMMTT.
I did consider whether, in the event of such a sale of the Moggill Property and purchase of alternative accommodation, adequate provision has not been made for Christopher’s proper maintenance and support as there is no specific provision for payment of rates, levies and taxes to be paid by the trustee for the new accommodation. However, upon further consideration, such a provision is not necessary. In this event, the property purchased would be trust property and the trustee would still have a trust fund from the income for Unit 11 and one third of any surplus of sale proceeds after the purchase of the alternative accommodation. The trustee would therefore have the funds to meet those costs.
Christopher’s proposal is that he be provided with the income from Unit 2, which is to be left to Helen, as well as half the income from Unit 8 which under the Will is to be gifted to Shona. Shona is unable to work full-time and has several medical conditions. Helen is younger, still able to work in the family business and in a better financial position than Shona but is also close to retirement age and also shared a strong relationship with William. While Christopher points out that work improving the Moggill Property will benefit Shona and Helen as well, given they are to each receive one third of the surplus proceeds after its sale and the purchase of alternative accommodation, the effect of Christopher’s proposal is that Shona and Helen would be deprived of any benefit under the Will for Christopher’s lifetime, unless the trustees determined to distribute some money held on the CMMTT in their favour. Christopher also seeks to exonerate some part of the estate from being sold by the executor or the trustees, namely the Moggill Property and Unit 11. For the reasons set out above, the provision for the sale of the Moggill Property is to ensure that if the trustee in his discretion considers it appropriate, he can sell the property but must purchase Christopher alternative accommodation. It may be that Unit 11 does not generate significant income as time goes on and it is not practicable for the trustee to retain it and only draw on the income. In those circumstances, it may be in Christopher’s interest for the property to be sold and the proceeds placed in the CMMTT.
In formulating his Will, William acted as a wise and just father in making provision for Christopher’s proper maintenance and advancement in life.
In all of the circumstances, the evidence does not establish that adequate and proper provision has not been made for Christopher under the terms of the Will. The Court does not have jurisdiction to make further provision and the application should be dismissed.
Other matters
A significant number of the arguments raised by Christopher in his closing submissions are irrelevant to the present application. As a result, I have not dealt with each and every argument raised where it is not relevant to do so. Dealing briefly with some of the arguments which Christopher raised:
(a)there is no suggestion that Christopher lacks capacity or that William acted on that basis in formulating his Will;
(b)if the coins were found they would form part of William’s estate and are not “household chattels” for Christopher’s use;
(c)I do not find that the lack of termite inspections between William’s death up until February 2021 formed part of any deliberate plan to sell the Moggill Property. The possibility of selling the Moggill Property is provided for in the Will and its sale would not constitute a change of Will. Nor would an order under s 41 of the Succession Act constitute a resettlement. It would arise as a result of a statutory right;
(d)the storage of other people’s possessions at the Moggill Property is not relevant to the present application. The present application is not for the sale of the Moggill Property but has been raised by the respondents in the context of the provision in the Will;
(e)there is no evidence that Christopher has a medical condition which requires a swimming pool;
(f)the money in the estate’s bank account contains rent for the properties left to Shona and Helen. It belongs to the devisees of those properties and is not part of the residue of the estate;[72]
(g)the first stage of the two-stage inquiry in Queensland involves determining whether the Court has jurisdiction to hear the application as at the date of death of the deceased. The second question is to be determined upon the circumstances as at the date of trial;[73]
(h)section 41(2)(c) of the Succession Act refers to disentitling conduct of the applicant for family provision and does not apply to the respondents. The respondents are not seeking an order in their favour but merely an order that upholds the Will;
(i)Christopher’s wishes and his father’s wishes that Christopher live at the Moggill Property are matters which are part of the consideration of the application. They are not the only considerations in terms of whether adequate provision has been made for Christopher’s proper maintenance. There is no medical evidence supporting any health reasons requiring Christopher to live at the Moggill Property. There is no evidence about alternative accommodation to draw the comparisons which Christopher seeks to make with the Moggill Property; and
(j)based on the reasonable expenses and providing for an allowance for Christopher, there remains some surplus for contingencies to replace some ageing items such as a household appliance. The white ant damage in the way that it has occurred was not reasonably foreseeable by William and a contingency that a wise and just testator would have provided for after there had been treatment for white ants in 2016.
[72]O’Brien v McCormick [2005] NSWSC 619 at [38]–[39].
[73]While the Court of Appeal in Hartley v Hartley [2022] QCA 96 referred to the decision of Mullins J (as her Honour then was) in Pizzino v Pizzino & Anor [2010] QSC 35, where her Honour referred to the two-stage process which is accepted as the proper approach to adopt, it was by reference to the High Court case of Singer v Berghouse (1994) 181 CLR 201 which originated in New South Wales not Queensland such that s 9(2) of the Family Provision Act 1982 (NSW) applied. Mullins J in Pizzino v Pizzino & Anor [2010] QSC 35 at [61] determined the question of jurisdiction as at the date of the deceased’s death.
Orders
In the circumstances the appropriate orders are:
(a)the proceedings are dismissed;
(b)the parties make any submissions as to costs, limited to three pages, within 28 days.
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