Williams v Gulliford
[2006] QDC 411
•15 December 2006
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Gulliford [2006] QDC 411 |
PARTIES: | ADAM JUSTIN WILLIAMS (Applicant/Respondent) AND RICHARD EDWARD GULLIFORD (Respondent/Applicant) |
FILE NO/S: | 275 of 2006 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore |
DELIVERED ON: | 15 December 2006 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 8 December 2006 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application of Adam Justin Williams pursuant to s. 41(1) dismissed with costs. |
CATCHWORDS: | Application - Succession Act 1981, seeking adequate provision and proper maintenance for support out of an estate; where application out of time; where estate had been distributed prior to notice of application; whether applicant has reasonable prospects on the merits. Cases cited: Holman v McClelland & Holman (as executors of the estate of Holman, dec’d) [2003] QCA 509 Re Donkin, deceased; Riechelmann v Donkin [1996] Qd R 96 Re McPherson [1987] 2 Qd R 394 Easterbrook v Young (1977) 136 CLR 308 Legislation: Succession Act 1981, s. 41(1) and (8), s. 44 (3) and (4) |
COUNSEL: | S. Barclay (for the applicant/respondent) A. Macklin (for the respondent/applicant) |
SOLICITORS: | Paul Pattison (for the appellant/respondent) Warren Gardiner & Co (for the respondent/applicant) |
Margaret Gulliford died on 7 May 2005. Her last will dated 31 October 2003 appointed her husband Richard Gulliford as executor. It provided for three specific bequests of $2000 each to Adam Williams and his sister Kylie Spencer (both adult children of the deceased by a prior marriage) and Michelle Gulliford an adult child of Mr Gulliford, and Mr Gulliford as the residuary beneficiary.
Mr Gulliford and the deceased married on 4 November 1995 and were living as man and wife at the date of her death.
Adam Williams filed an application in this court on 11 October 2006 pursuant to s. 41(1) of the Succession Act 1981 (the Act) seeking adequate provision and proper maintenance for his support out of his mother’s estate.
The application also seeks a direction pursuant to s. 41(8) that the application be heard notwithstanding that the application is made outside the 9 month time limit provided for in the sub-section. Mr Macklin correctly points out that the application does not in terms seek such a direction but the parties have proceeded on the basis that it does and I will proceed accordingly.
There has been no grant of probate, and no issue arises before me because of that.
Mr Gulliford has applied to the court for an order that Mr William’s application pursuant to s. 41(1) of the Act be dismissed.
No notice in writing (or otherwise) was given within 6 months of the date of death as provided for in s. 44(3) and (4) of the Act.
It is common ground that notice of a possible application under s. 41(1) was not given until 8 June 2006 when Mr Pattison (Solicitor for Williams) wrote to Mr Gardiner (Solicitor for Gulliford), that is some 13 months after the date of the death.
The material discloses that Mr Williams first consulted Mr Pattison in February 2006. The 9 month time limit expired on 7 February 2006. Mr Pattison first wrote to Mr Gulliford on 21 February 2006, but it was not until 8 June 2006 that he gave notice of his client’s application.
It is tolerably clear that neither solicitor, despite extensive letter writing between them, thought about the time limit issue at all until after Mr Gardiner consulted Mr Macklin and wrote to Mr Pattison on 31 August 2006. Mr Barclay, on behalf of Mr Williams made this argument in his written submission:
“The correspondence between the parties implies, through its course of conduct, that there was acquiescence to the matter being litigated albeit outside the statutory time limit.”
There is absolutely no support for this proposition in the material before me, and it was not actively pursued at the hearing.
The applications involve an exercise of the court’s discretion. There are a number of matters which are relevant to this exercise which are non-contentious.
The jointly owned property
It is accepted by Mr Williams that the property which passed to Mr Gulliford by way of survivorship does not form part of the estate of the deceased. At the time of her death, the deceased and Mr Gulliford owned a property at 41 Middle Park Court, Coes Creek and two motor vehicles as joint tenants. As is said by Megarry and Wade in the Law of Real Property (4th edition) 1975 at page 391:
“On the death of one joint tenant, his interest in the land passes to the other joint tenant by the right of survivorship … This right of survivorship takes precedence over any disposition made by a joint tenant’s will…”
At the date of death the real property was subject to a mortgage to the Commonwealth Bank of Australia (known as a Viridian Line of Credit) which stood at $258,455.74).
Distribution of Estate
The main asset of the estate was the proceeds of a Q Super entitlement as a result of the deceased’s employment as a nurse with Queensland Health for 15 years prior to her death.
Q Super paid the proceeds in two instalments of $143,617.61 and $36,585.56 on 23 June 2005 and 16 June 2005 respectively directly in reduction of the line of credit, and as at 23 November 2006 the mortgage debt (for which Mr Gulliford is solely responsible) stood at $115,625.39. Q Super made these payments at the direction of Mr Gulliford after (presumably) sighting a certified copy of the last Will.
Mr Gulliford has paid the $2000 bequest to his daughter, and has attempted to pay the 2 remaining bequests to Mr Williams and his sister but these have not been accepted.
In an affidavit filed 27 November 2006 Mr Gulliford deposes that:
“I have completed all the executorial duties required of me and have fully administered the Estate, save and except for payment of the bequests, each of $2000 to the Applicant and Kylie Anne Spencer.”
In following Re Donkin, deceased; Riechelmann v Donkin [1996] Qd R 96, Connolly J. in Re McPherson [2987] 2 Qd R 394 held that an asset ceased to be part of the testator’s estate when it was distributed or vested in trustees for a beneficiary. In distinguishing Easterbrook v Young (1977) 136 CLR 308, his Honour held that provision (for adequate maintenance) could not be made from an asset which was no longer part of the testator’s estate on a testator’s family maintenance application.
The learned authors of Family Provision in Australia and New Zealand, de Groot & Nickel (at 411; page 114-115) do not refer to Re McPherson but appear to favour the same reasoning employed in part by Connolly J to distinguish Easterbrook v Young.
In Faulkner [1999] 2 Qd R. 49 at 51, Moynihan J (as his Honour then was) in determining an application by a beneficiary pursuant to s. 8 of the Trusts Act 1973 to set aside distributions made by the executors of an estate said:
“Section 41 of the Succession Act empowers the Court to make an order for further provision “out of the estate”. Since the estate has been fully distributed, there is nothing out of which provision can be made and the application will be defeated…”
Mr Barclay on behalf of Mr Williams did not submit that the estate has not been effectively distributed, and he certainly did not suggest (nor could he) that the distribution of the Q Super funds was unlawful.
The delay in giving notice
There is no evidence to suggest that Mr Williams was aware of the Act time limits. It appears that his solicitor also was unaware, and I agree with Mr Macklin that after receiving instructions in February 2006, he was, at best, casual as to the need to comply with the time limits set out in the Act. Indeed, when informed of the time limits in Mr Gardiner’s letter of 31 August 2006, Mr Pattison in his reply of 5 September 2006 seemed to regard compliance with the time limits as “trite”. The material discloses that there was contact between Mr Williams and Mr Gulliford after the death of the deceased which appears to have deteriorated to the point where Mr Williams sought legal advice. It is not clear if he was aware of the terms of the will prior to seeing the solicitor, however he accepts that he was told (prior to 6 February 2006) by Mr Gulliford that he had received a pay-out of the deceased’s superannuation which had greatly reduced the financial burden on him. On one occasion he and his sister collected some personal effects of the deceased from Mr Gulliford’s residence which Mr Gulliford values at over $10,000.00. He made it clear (prior to 6 February 2006) that he would not be accepting $2000.00 which does suggest some knowledge of the terms of the will.
The Merits of the Application
Mr Williams is 33. In 1993, he obtained employment as a wardsman at Royal Brisbane Hospital and has maintained that employment since. He owns a house at 22 Winifred Street, Mango Hill which he purchased in 2005, and borrowed against the equity in that property to purchase a half share in a rural block with one Albert Conely, a former life partner of the deceased. He says he has encountered serious problems with his back, but there is no medical evidence to support this. He says that he and his sister lent the deceased $5000.00 each but that this money was repaid when she and Mr Gulliford sold a home on Beech Road prior to purchasing the Coes Creek property.
It is accepted that to succeed Mr Williams must show, pursuant to s. 41(1) of the Act that adequate provision is not made from the estate for his proper maintenance and support.
In my view, on the material placed before me, Mr Williams’ case appears to fall into a similar category to that of the unsuccessful appellant in Holman v McClelland & Holman (as executors of the estate of Holman, dec’d) [2003] QCA 509 described by the primary judge as a case “not without difficulty, but while this is so, it cannot be said definitely that it is a case without any merit”.
Holman is a case where the deceased died on 24 December 2001 and any application should therefore have been filed by 24 September 2002. The relevant application was filed on 28 November 2002, approximately 2 months late.
Finally, Mr Macklin argues that Mr Williams has shown no basis for disturbing the equality in the will amongst the 3 adult children. In her will, the deceased treats the three equally, referring to them as “my children”. As he points out there is nothing in the evidence to suggest that Mr Williams has any greater moral claim upon the deceased than either of the other two who have not applied.
Conclusion
In my opinion, the discretionary factors overwhelmingly, in the circumstances of this case, favour a dismissal of Mr Williams’ claim, and I so order.
Costs
At the conclusion of the hearing last Friday, I indicated to the parties that I intended to dismiss the s41(1) application made by Mr Williams and I invited submissions on costs. On 7 September 2006 Mr Gardiner wrote to Mr Pattison advising that in effect any application would be defended and costs would be sought on an indemnity basis. The application was filed on 11 November 2006 and Mr Gulliford’s successful cross application on 5 November 2006.
On 21 November 2006, Mr Pattison was served with an offer to settle pursuant to r. 353 UCPR term which effectively proposed that each party withdraw their applications and meet their own costs.
Needless to say, the offer was not accepted.
It is clear that Mr Pattison had not turned his mind to the difficulty facing his client by the lawful distribution of the majority of the estate, and that he regarded the time limit issue as trite.
Nevertheless, it is not a situation where the awarding of indemnity costs must follow. That decision is discretionary under the rules and because Mr Williams’ application was not hopeless or bound to fail, I have decided to order that he pay Mr Gulliford’s costs on the standard basis only.
0
2
1