Atthow v McElhone

(a) Kay, now aged 66, who is the applicant for provision from the estate;

Dianne is an executor under a will dated 27 October 1999. Probate was granted to Dianne on 22 June 2009.

[2] The estate has a value of slightly less than $300,000 before the deduction of the costs of selling its real property, which is worth $220,000.

[3] The will, in effect, provided for the whole of the estate, after payment of debts, funeral and testamentary expenses, to Dianne. No effective provision was made for Lance or Kay. Lance has made no application for provision from the estate and does not intend to do so.

[4] Kay has net assets of approximately $2.3 million. In recent years she has been employed as a nurse, but it is uncertain for how long into the future she will gain income from employment. She last worked for Queensland Health in March 2010. Her 2009 tax return indicates other employers. Leaving aside income from nursing, she earns income from two rental properties and from dividends on shares. The submissions on behalf of Dianne analyse Kay's income for the year ended

30 June 2009 and her expected income for the 2010 financial year. The submission is made that if all nursing income is taken out, Kay has the potential to earn approximately $73,000 gross per annum from rental and investment income. Of course, expenses which Kay estimates at about $13,600 are associated with the maintenance of the two properties. In any case, Dianne submits that it is difficult to accept, on the basis of Kay's capacity to provide for herself, that the deceased had an obligation to make provision for her.

[5] Kay was estranged from her mother. There is conflicting evidence about the original source of strains in their relationship. It is inappropriate, and in any event impossible, on an application of the present kind to resolve issues about why Kay's relationship with her mother was poor. In essence, Kay describes her mother as an unhappy, bitter woman who took most of her unhappiness out on Kay, while adoring Lance and favouring Dianne over her. Dianne agrees that Kay's relationship with the deceased was poor, and rejects the suggestion that her mother was bitter. The existence of these factual disputes about the deceased's personality and the reasons for her poor relationship with Kay do not alter matters about which there is no real dispute. There is no dispute that the relationship between Kay and her mother was never good and the relationship deteriorated in more recent times, particularly after Kay's father died.

[6] He died on 26 January 1998, leaving a property described as Bella Springs and cash to the deceased, and his residuary estate to Lance. Kay commenced proceedings claiming provision from her father's estate, as did Dianne. Those claims were settled at a mediation on 10 September 1999, the result of which was that:

(a) Kay received $250,000 inclusive of costs from the estate;

(b) The deceased received a further $200,000 plus costs from the estate;

(c) Dianne withdrew her claim, but her costs were paid from the estate.

[7] In early 2000 the deceased sought legal advice about how to prevent Kay making an application for provision against her estate. By this time Kay's relationship with the deceased was very poor. On 7 July 2000 Kay wrote to her mother about financial issues, inquiring about whether her mother was able to live comfortably, and saying that she had always wanted her mother to be financially independent. The letter continued:

"Much and all as I loved my father, I considered the will to be sexist to the women of the family. It is no longer considered that the son inherits everything. At the same time I didn't want to see "Bella-Springs" sold. Nor did I agree with Shirley's will, that the grandchildren inherit a large slice of a will, bypassing the next generation who have worked hard. Would you have like that to have happened to you? I certainly wouldn't bypass my children for my grandchildren.

You are the victim of envy, jealousy, greed and above all, a gross lack of communication. When Lance came down to see me, I put forth a number of proposals which would have seen you comfortable. Whether this was communicated to you or not I don't know. I also urged him to utilise various resources that were at hand to make your life more comfortable. At the same time I stated that I wanted equal to what my sister had.

Why was I the one expected to make up the difference to her?

My very worst enemy in this sorry saga in Paul. Paul is once again in financial trouble. He is feeding into Dizzy's envy and jealousy beautifully. He's firing the bullets at Dizzy and she's firing them at you, about me. Sit back and take a look at what is happening there. I also happen to know that he has sort (sic) advice on what he is entitled to from her, once she inherits. He has been a failure in every business dealing he has ever been involved with.

Yet both Dizzy and Lance's spouses are set to inherit more. I note the very people who criticized us for daring to mention 'money' were the very people who have never had to go out and support a family without parental, support, or educate them.

We were also a resource which could have been utilized - 3 with business degrees and one who'd worked as a financial analyst.

I'm saying 'Goodbye' to you to you (sic) now. You won't see me again ever. Nor will I be there if your leukaemia accelerates and you are hospitalised. Primarily, I wouldn't wish for any unpleasantness at your bedside.

My brother and sister will never darken my door step again. My sister for her jealousy and envy and my brother for his greed and for trying to take me down. I received the least out of the three siblings. Out of interest, how much did you think I should receive?

We must be a laughing stock of such an old fashioned mentality, that the son inherits everything.

You'll go to your grave with a permanently split family. It's not something I would wish for in my own family nor would I condone it.

[8] Kay says that this letter was written in response to a vitriolic attack that her mother launched on her, which made unfounded claims that she had received more than her mother from her father's estate. Kay's affidavit filed 4 May 2010 attempts to explain the letter's severance of her relationship with her mother by saying:

"There was no point continuing a relationship with an abuser and going back for more."

[9] Kay did, however, write another letter to her mother. The letter was dated

20 February 2002. Its main subject were rumours that were said by Kay to have been circulating in the family about what Kay had received from her father's estate and from the estate of an aunt. By this time the deceased had transferred

Bella Springs to Dianne. In her February 2002 letter Kay complained that her family had received in total less than what Dianne would receive in total, and "obviously less" than Lance. She asserted that she had not been left well off.

[10] Although Kay's children had contact with their grandmother on occasions, Kay did not. The deceased's health progressively failed after 2004 and Dianne regularly travelled from her home in Sydney to spend time with her mother at Imbil. In 2006, 2007 and 2008 she visited several times a year, and helped nurse her mother. The deceased was hospitalised for the last month of her life, and Dianne visited her daily during this period.

[11] Kay was not informed of her mother's hospitalisation, and did not know that her mother had died for about a month.

[12] Dianne works as a medical receptionist. Her husband has a half share in a hotel/brokerage business. There are some issues in dispute about the value of that business. Dianne says that it is unprofitable and is being wound up. I have had regard to Dianne's affidavit concerning her income, assets and liabilities and the assets and liabilities of her husband. I have also had regard to Kay's response to this affidavit.

[13] Section 41 of the Succession Act 1981 (Qld) provides:

"41 Estate 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."

[14] In Vigolo v Bostin[1] the High Court referred to what was said in Singer v Berghouse[2] about the approach to an application for family provision. This has been described as the "two stage" approach. Mason CJ, Deane and McHugh JJ in

"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 be 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'.

[15] The first stage question of whether the applicant has been left without adequate provision for her proper maintenance and support is determined as at the date of death. Adequate provision for the proper maintenance and support of the applicant means more than maintenance at a basic level. It means maintenance and support at a level or degree appropriate to the applicant in all the circumstances of the case. The Court has regard to, amongst other things, "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".[4]

[16] Dianne's application for summary determination of Kay's application rests on the proposition that there is no viable ground for Kay to contend that the deceased failed to make adequate provision for Kay's proper maintenance and support out of the deceased's relatively small estate. Dianne points to Kay's assets and income and submits that the deceased did not have an obligation to make provision for Kay.

[17] Dianne submits, and there is no dispute about this, that there is no evidence that Kay made any contribution to the creation of the deceased's estate.

[18] Kay does not suggest that any promises were made to her by the deceased with respect to provision out of her estate. This is not a case, unlike some, in which an applicant for provision was induced to make personal or financial sacrifices in caring for the deceased during her life or in contributing to the financial worth of the estate. On the contrary, Kay severed ties with her mother quite emphatically in her letter of 7 July 2000 and her subsequent letter of 20 February 2002 made no attempt to restore relations.

[19] Higgins v Higgins is authority for the proposition that the Court may intervene summarily in its inherent jurisdiction or pursuant to r 658 of the Uniform Civil Procedure Rules.[5] It has been said that a family provision application may be summarily dismissed if the applicant's material does not disclose "a prima facie case" in respect of the first stage inquiry.[6] In such a context "prima facie case" connotes that in the absence of further evidence there is evidence upon which the tribunal of fact can, but not must, find for the party raising the prima facie case.[7] As in any application for summary dismissal of a proceeding I should proceed with caution and not grant summary judgment unless it is clear that the application cannot possibly succeed. The present application for summary judgment is not governed by UCPR r 293.

[20] It would be inappropriate to grant summary judgment on the basis of disputed facts, the determination of which at trial in Kay's favour would support her claim. However, not every disputed item of evidence in the affidavit material read before me is of such a character. In respect of factual issues that may bear upon Kay's prospects of success at trial, I shall proceed on the assumption in Kay's favour that those factual disputes will be resolved in her favour.

[21] It remains, however, to be determined whether Kay has established a prima facie case in the sense discussed by Jones J in Laursen v Laursen.[8] At the hearing before me counsel for Kay summarised her claim on the basis that she was the deceased's daughter, and emphasised that her claim had to be determined in light of the evidence led at trial about the true nature of the relationship between the deceased, Kay and Dianne, the financial standing of Kay and Dianne and Dianne's competing claim.

[22] I accept that an application for provision requires consideration of inter-personal relationships. However, a detailed exploration of the causes of Kay's difficult relationship with her mother is not required in order to determine the application. The essential facts of the relationship between Kay and the deceased are clear enough. They were estranged and Kay terminated the relationship in 2000 for the reasons expressed in her letter. The nature of the relationship between the deceased and Dianne is not the subject of any real contest. As to whether Dianne had a legitimate claim upon her mother's estate, the observations of Miles CJ in

"There is no requirement in the law that a person to whom a testator has left all or part of the testator's estate should have to justify the testator's decision at all, let alone on the basis that what the testator did was compelled by moral duty."

However, Dianne's support for her mother, particularly in the later stages of her mother's life compared to Kay's self-imposed estrangement, probably serves to explain why the deceased's relatively small estate was left to Dianne. On the present application there is no suggestion that Lance had a legitimate claim upon his mother's estate, and he has told his sister Dianne that he does not intend to claim family provision out of the deceased's estate.

[23] Kay has adult children. She has substantial assets. At the time of her mother's death she was in employment, but was of an age at which she might reasonably have expected to no longer pursue full time employment. She had and still has other sources of income to support her.

[24] The simple fact remains that this is not an application by someone who was dependent on the deceased and prima facie has a claim to be maintained and supported. I respectfully follow the observations of Jones J in Laursen v Laursen[10] that in a case such as this an adult claimant is in the position of needing to show some basis to justify intervention by the Court under the Act. The Court does not exercise jurisdiction under the Act to build up out of the estate of the testator the capital assets of a person who has built up enough assets for their proper maintenance.

[25] In accordance with the approach identified above, I shall assume for the purpose of the summary judgment application that relevant disputed questions of fact would be resolved at any trial in Kay's favour. I shall assume for the purpose of the application that the deceased favoured Dianne and Lance. There is no dispute that Kay was not favoured by her mother. Kay terminated her relationship with her mother for all practical purposes in her letter of 7 July 2000. The deceased in effect cut Kay out of her will and reduced the size of her estate because she felt no obligation towards her eldest daughter. Kay said her "goodbye" in the terms contained in that letter.

[26] I do not refer to the letter as evidence of disentitling conduct for the purpose of

s 41(2)(c) of the Act, since that issue was not argued before me. The discretion to refuse an order for disentitling conduct was considered in Collett v Knox.[11] I note that the successful female applicant in that recent case was not well off, had an extremely modest income and had health problems. Her estrangement from her mother "was due to the conduct of both but principally of the deceased and was maintained by both, almost in equal degree".[12] The estrangement in that case began over the deceased's husband's estate. Before the estrangement the applicant and her mother were on good terms, and the applicant's behaviour towards her mother was "unimpeachable".[13] The applicant in that case had a strong case for relief and the circumstances of her estrangement from her mother were not of a character that entitled the Court to say that the applicant had forfeited or abandoned her moral claims on the testator.[14]

[27] I refer to Kay's letter of 7 July 2000 and her declaration that her mother would not see her during her mother's declining years as relevant to her mother's entitlement to make no provision in her will for an adult daughter who was able to adequately maintain herself. Bergin CJ in Equity in Ford v Simes[15] stated:

"... it is very important for the maintenance of the integrity of the process in these types of applications that this Court acknowledge once again the entitlement of testators, in certain circumstances, to make no provision for children: The Pontifical Society for the Propagation of the Faith and Saint Charles Seminary, Perth v Scales [1962] HCA 19; (1961) 107 CLR 9. This is particularly so in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility."

[28] Even assuming relevant factual disputes would be resolved in Kay's favour at any trial it is extremely hard to see any basis to conclude that the deceased at the time of her death in fact had an obligation to make provision for the proper maintenance and support of Kay. Kay's application amounts to little more than a contention that an obligation was owed to her because she was, after all, the deceased's daughter and because her siblings had always been favoured by their mother.

[29] Having reserved the matter, and reflected on Kay's prospects at any hearing, I am extremely reluctant to find that she has a prima facie case in the sense discussed in the authorities. Her claim for provision to be made in her favour out of her mother's estate seems practically hopeless. However, exercising the extreme caution that is appropriate to applications for summary judgment, I decline to exercise my discretion to summarily terminate the proceeding.

[30] Dianne seeks in the alternative an order that the proceedings be remitted to the District Court at Brisbane. No opposition was raised to making such an order.

[31] Kay's costs through to a final hearing are estimated to be $45,000. Dianne's costs through to trial and judgment are estimated to be between $50,000 and $60,000. Dianne's costs of defending the proceedings in all likelihood will be ordered to be paid out of the estate of the deceased on an indemnity basis. This will reduce the relatively small estate to an even smaller estate, the total worth of which will be within the jurisdiction of the District Court.

[32] Dianne, as executor of the will of the deceased, acted reasonably in bringing the application for summary judgment. It was brought in the legitimate interests of preserving the estate against an unmeritorious application.

[33] Although Kay has resisted the application for summary judgment, I decline to make an order for costs in her favour in respect of the application for summary judgment. Instead, I order that Dianne's costs of and incidental to the application filed by her on 23 April 2010 be assessed on an indemnity basis and paid out of the estate of the deceased. Kay's costs of and incidental to the application filed 23 April 2010 will be reserved. If the matter does not settle at mediation then it will be for the trial judge or another judge to determine whether Kay's costs of and incidental to the application dated 23 April 2010 should be borne by her. If her case for provision out of the estate proves to be as weak as I presently assess it to be, there would be good reason for Kay to bear her own costs, rather than have the value of the estate diminished by legal costs associated with an unmeritorious application.

1. The proceeding be remitted to the District Court at Brisbane;

1. The costs of the respondent in the proceedings/the applicant on the application filed 23 April 2010 of and incidental to the application filed 23 April 2010 be assessed on an indemnity basis and paid out of the estate of the deceased.

2. The costs of the applicant in the proceedings/the respondent on the application dated 23 April 2010 of and incidental to the application filed 23 April 2010 be reserved.

[1] [2005] HCA 11; (2005) 221 CLR 191 at 202 [21] per Gleeson CJ, 212 [56] per Gummow and Haynes JJ, 230 [120] per Callinan and Heydon JJ. I respectfully adopt the analysis of White J in Higgins v Higgins [2005] QSC 110 concerning the judgments in Vigolo v Bostin.

[2] [1994] HCA 40; (1994) 181 CLR 201.

[5] [2005] QSC 110 at [15].

[6] Sellars v Maeykc [2005] QSC 368 at [37] - [39].

[7] Laursen v Laursen [2009] QSC 30 at [18].

[9] (1989) 97 FLR 410 at 415.

[11] [2010] QSC 132 at [138] - [149].

[15] [2009] NSWCA 351 at [71].