Swain v Inglis

[2012] QDC 143

[2012] QDC 143

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1421 of 2011

ALEXANDER JAMES SWAIN and SASHA ELISE SWAIN	Applicants
and
JENNIFER ANN INGLIS	Defendant

BRISBANE

..DATE 20/04/2012

ORDER

CATCHWORDS
Succession Act 1981 s 41

Adult children seeking increased provision out of modest estate - whether they were in default under a court order allowing until a set date for filing of further material by them, so as to risk being struck out - they developed no intention to file further material - whether respondent executrix (and 50% residuary beneficiary) should have her costs out of the estate in any event - whether an order should be made precluding that outcome
HIS HONOUR: This is an interlocutory application in a "testator's family maintenance" proceeding under s.41 of the Succession Act.

The applicants are adult children of the testator.  The respondent is the executrix under a Will which the Court is told was made only shortly before the death.  She, the Court is told, was in a five year relationship with the testator.  She says he resided with her in her unit for the last 11 months or so and before he died she cared for him.  She is aged 60.  He was about the same age, if not slightly younger.

The interlocutory application before the Court today seeks the striking out of the original application on the basis of the applicants' failure to comply with Court orders.  Mr Byrne correctly apprehended that the Court might be loath to grant that relief.  Indeed, whether there is non-compliance with Court orders at all is debatable.  7th of October 2011 was the deadline set by the Court for provision of further material.

No further material was forthcoming from the applicants and the respondent, who was today's applicant, had difficulty in getting an answer to inquiries as to whether there would be further material.  Subsequent to the filing of her application it's been confirmed that there will be nothing further.  As I say, it's difficult to characterise what's happened as a default, but the wish of the executrix to have the matter advance to determination is understandable.

The delay may or may not be embarrassing her from the point of view of her enjoying access to resources that she needs for her own support because the estate is effectively tied up.  Mr Byrne indicates that the applicants, who each receive 20 per cent of the estate after a monetary bequest to a charity, seek the whole lot of it including a 10 per cent share allocated to the testator's mother and the balance which goes to the executrix.

The Court is given to understand that the applicants' concerns extend to the validity of the Will, a caveat which has now lapsed having been filed in respect of it in the past, and further concerns that assets that might have been in the estate, in particular, a superannuation or like payout, have gone missing.  Those considerations are unlikely to play any part in the current application unless in respect of the latter it could be established that moneys were applied to the benefit of the executrix with the effect that notionally she may be treated as obtaining from the testator more than a 50 per cent share of the residuary estate.

The estate is a modest one.  That appears to have been confirmed following Mr Goodwin's discussions about the supposed "missing assets" as recently as this morning.  The parties appear to be in agreement that the estate is valued at $150,000 to $160,000; a significant part of it is unoccupied land at Crow's Nest which, the Court is told, needs to be slashed urgently.

It's regrettable that costs might eat up a small estate.  I'm not in agreement with Mr Goodwin, however, that that's a reason why the application before the Court today should not have been brought.  The stage seems to have been reached where it was appropriate for something to occur to advance the matter.  There is every reason to hope that that will be its future, the parties having agreed to the Court setting the originating application down for hearing on the 22nd of May 2012.

The contentious issue today is costs of the application.  It's accepted that the respondent will get her costs out of the estate and on the indemnity basis whatever happens.  Mr Byrne's position is that the ordinary course of those costs being taken out of the estate if it's distributed in accordance with what turn out to be the appropriate shares which are thus all reduced pro rata, is not appropriate here that the Court should determine today that those costs shouldn’t come out of the applicants' shares, whatever they turn out to be.

The Court, in my view, doesn't know enough of the circumstances to make an informed decision today and I think the questions of costs ought to be reserved to the trial Judge.  Of course, there may be no need for a trial and the matter may end up coming back before a Judge simply on the question of costs.  The question of costs to be reserved to the trial Judge under today's order is whether the applicants' - meaning the applicants in the originating application - costs of the respondent's application filed the 10th of April 2012 should be paid out of the estate and whether those applicants should indemnify the estate in respect of its costs of that application out of their shares.

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