Re Noble

[1999] QSC 221

IN THE SUPREME COURT

OF QUEENSLAND

No.  S938  of 1995
Brisbane

Before             Douglas J

[Re Noble]

IN THE MATTER of the Will of BERYL MOLLY WRIGHT late of 64 Moxon Road, Burbank, Brisbane in the State of Queensland, Home Duties, Deceased

- and -

IN THE MATTER of an Application by GAYE NOBLE pursuant to Part IV of the said Act.

CATCHWORDS:     TESTATORS FAMILY MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - DUTY OF TESTATOR - DUTY TO CHILDREN -  whether applicant adult daughter left with insufficient provision.

TESTATORS FAMILY MAINTENANCE - PRINCIPLES UPON WHICH RELIEF GRANTED - GENERAL MATTERS - PRINCIPLES OF EXERCISE OF DISCRETION - circumstances to consider in exercising discretion - application by ill adult daughter where misunderstanding as to true financial position.

Succession Act 1981-1987 s. 41

Coates v National Trustee Executors & Agency Co Ltd (1956) 95 CLR 494
Dunn v Dunn (1959) 100 CLR 361
Re Hardgraves [1955] QSR 601
Re K [1921] QSR 172
Singer v Berghouse No.2 [1994) 68 ALJR 653
White v Barron (1980) 144 CLR 431

Counsel:  Mr K J Lynch for applicant.

Mr H Zillman for respondent.

Solicitors:Cannon Solicitors for applicant.

Bennett Carrol & Gibbons for respondent.

Frank Carroll for intervenor.

Hearing Date:              2 September, 1999

JUDGMENT - DOUGLAS J

Delivered the 10th day of September 1999

1.  The applicant, Gaye Noble, is the only child of the testatrix, Beryl Molly Wright, who died on 27 June 1995.  The present value of the estate of the testator is approximately $675,000.  In her last Will and Testament, of which the respondent is the sole executor, the testator left the following legacies:

a)$2,000 to her friend Barbara Tester;

b)$20,000 to the executor;

c)$50,000 to the applicant; and

d)$150,000 each to the applicant’s two adopted children,

Michael Whitchurch and Kelly Whitchurch.

2.  The residuary estate was left to the Leukaemia Foundation of Queensland.  Both Whitchurches are the adopted children of the applicant from a former marriage.

3.  The applicant is aged 52 years.  Her parents were divorced when she was very young and she was brought up by her mother and a stepfather in Sydney where she met John Whitchurch and married.  She had a previous unfortunate experience when her mother refused to allow her to marry a young man, with whom she had fallen in love, solely on the basis that he was of the Catholic faith.  The applicant’s marriage to Whitchurch failed but in the meantime they had adopted the two children.

4.  The testatrix was an ill woman for a long time before her death.  She was a severe diabetic and ended her days with severely impaired sight which was attributable to that disease.  The testatrix and the applicant had a difficult and changeable relationship over the years but despite her mother’s difficulties the applicant never changed her affectionate view of her mother.  She did get on rather better with her stepfather.

5.  The testatrix’s Will is dated 1 October 1993.  At the time she executed her will she made a statutory declaration where she stated that the provisions she made for her daughter (the applicant) was $50,000 because “she and her husband are both in affluent circumstances and are in well paid employment.  They own two houses.  I do not believe that she is in need of a greater sum under the provisions of my Will”.

6.  There is no doubt that that statement by the testatrix was a complete misunderstanding of the financial position of the applicant and her husband at that time.  Although they did own considerable property it was all subject to mortgage and at no time did they appear to be an excess of assets over liabilities totalling more than about $100,000.  More to the point since then the applicant’s husband has been diagnosed as suffering from colon cancer and is likely to die in the relatively near future.  Unfortunately it appears that the applicant has most probably inherited from their mother’s family a serious and debilitating genetic disease which may cause her to be blind and deaf.  She has retired from her job as a teacher which has had the result of reducing her superannuation entitlement markedly.  At the present time the value of her superannuation fund is about $102,000.  She is not yet old enough to realise that money.

7.  A further factor is that the applicant’s grandfather, one Harry Kemp, died in England leaving a Will whereby the applicant was to receive a benefit.  In fact what happened was that her entitlement from the estate of her grandfather was applied in the purchase of a house at Peakhurst in New South Wales in 1963 being put into the joint names of the testatrix and the applicant’s stepfather and the applicant as joint tenants.

8.  As was submitted by counsel in those days of gift duty the sources of purchase money had to be accounted for when a conveyance was produced for assessment of stamp duty and this would explain why her age was not shown as a minor on that transfer because the provision of some of the price was attributed to her.  The co-owners paid the equivalent of $13,900 in 1963 for that property and sold it ten years later for $37,500.  The applicant swears that she never did receive any payment in respect of her interest in the estate of her grandfather which was applied to that purchase.

9.  Family provision applications are governed by Part IV of the Succession Act (1981-1987) in particular s.41 which relevantly provides:

“41.Estate of Deceased Person Liable for Maintenance

(1)If any person (hereinafter called ‘the deceased person’ dies ... and in terms of the Will ... adequate provision is not made from the Estate for the proper maintenance and support of the deceased person’s ... child or dependant ... the Court may, in its discretion on Application by ... the said ... child or dependant ... order that such provision as the Court thinks fit shall be made out of the Estate ... for such ... child or dependant.

(2)The Court may -

(a)Attach such conditions to the Order as it thinks fit; or

(b)... direct that the provisions 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 ... ”

10.                  It was submitted before me by counsel for the executor that it was the executor’s role to uphold the Will.  This is certainly correct.  He also submitted that the factors which a court will consider when determining whether an order for maintenance should be made are myriad, but include the relationship of the applicant to the testatrix; the age and marital status of the applicant, the financial circumstances of the applicant; the conduct of the applicant; the size of the estate and whether the appalicant has any special needs.  In addition he submitted that the intention and motive of the testatrix must be given due weight and the making of inter vivos gifts is also relevant.  He submitted, referring to Re Hardgreaves [1955] QSR 601 (Full Court) and Re K [1921] QSR 172, that it is not the function of the court to rewrite the Will and therefore testamentary dispositions should only be disturbed to the extent necessary to ensure adequate provision for the proper maintenance and support of an applicantl.

11.                  It is clear that the relevant date when considering the various factors to ascertain whether an order should be made is the date of death see Dunn v Dunn (1959) 100 CLR 361. However, it is also clear that the circumstances prevailing at the date of the order are relevant to the type and amount of award wanted is determined that the applicant is entitled to relief. See Coates v National Trustee Executors & Agency Co Ltd (1956) 95 CLR 494 and White v Barron (1980) 144 CLR 431 at 444.

12.                  In the present case the applicant has to some extent built up the estate of her mother because it includes the applicant’s share of the estate of her grandfather.  It is also clear that the testatrix was mistaken or misinformed as to the extent of the applicant’s and her husband’s wealth at the time the Will was executed.  The evidence reveals, in addition, that over and above their joint superannuation entitlements of about $160,000 the applicant and her husband are being pressed by Westpac Banking Corporation to liquidate the assets they currently have and that it is probable that at the end of this liquidation they will be left with a sum of not more than about $100,000.  It is fair to say that between the date of death of testatrix and the present date the circumstances of the applicant have deteriorated to a marked degree.

13.                  I am of the view therefore that the testatrix failed to observe the statutory obligation to make adequate provision for the proper maintenance and support of her daughter from her quite substantial estate; Singer v Berghouse No.2 [1994] 68 ALJR 653 and that further provision should be made for her benefit.

14. In exercise on my discretion and bearing in mind that it was the intention of the testatrix to permit her grandchildren to benefit substantially from the Will I am of the view that the legacy provided for the applicant should be increased by a further provision of $175,000 making that entitlement in all of $225,000. Bearing in mind the provisions of s.41(3) of the Succession Act I order that that further provision fall as to ^1/₆ over each of the legacies left to each grandchild and _ over the residuary estate left in favour of the Leukemia Foundation of Queensland.

15.                  At the very end of submissions in this case Mr F Carroll (solicitor) appeared for the female grandchild and urged upon me that I would not make an order which impinged upon his client’s legacy of $150,000.  Prior to that time netiher grandchild nor the Leukaemia Foundation of Queensland had taken any interest in these proceedings.  I have, of course, taken into account Mr Carroll’s submissions but I feel that in the circumstances it is appropriate to make the orders which I have proposed.

16.                  Subject to argument I propose that the costs of the applicant and the executor be paid out of the estate assessed on an indemnity basis, with the exception of the costs of and incidental to the reserved costs in relation to the respondents application for disclosure.