Dunne v Dunne

Judgment Introduction 1This is an application under part 3.2 of the Succession Act 2006 by an adult son for an order for provision out of the estate of the late John Joseph Dunne (the Testator). The matter was heard on 12 December 2013 but time did not permit the giving of an ex tempore judgment on that day. However the Court is indebted to Ms D V Robinson who appeared for the plaintiff and Mr J S Emmett who appeared for the defendant for their helpful submissions. Facts 2The Testator died on 23 December 2011, aged 93. He had been married twice. He had two children by his first marriage, a son and a daughter now both deceased. He had six children by his second wife, namely Darrel now deceased, Jacqueline, Gregory and John, plus the plaintiff (Joseph) and the defendant (Paul). Without meaning any disrespect I will refer to the children of the deceased by their first names. 3The deceased's last will left the whole estate to Paul, the defendant. Paul obtained probate on 17 May 2012. 4It would seem that the only asset in the estate is the testator's home at Narrabri valued at $270,000. 5The plaintiff is almost 49 years of age. He has been married to Jennelle for 29 years but they have no children. 6The plaintiff is illiterate and has been unemployed since about 1997. His income comes from a disability pension plus the occasional sale of livestock. His wife is also a pensioner. The plaintiff's health is poor, he has been diagnosed with Type 1 diabetes. He is under medication for depression, hypothyroid and epilepsy. 7The plaintiff lives on a property near Kingaroy, Queensland, which is owned by himself and his wife. His dwelling does not have local council approval and the occupation may well be illegal. However he has been living there for some years. Unfortunately, because of the status of the structure on the property, if the property were to be sold it could only be sold as vacant land and there is evidence of a valuation by a local real estate agent that the land would only be worth some $40,000 to $50,000, though some of the comparable sales mentioned would suggest the figure might be even double that. 8There is no doubt that there was relatively little contact between the plaintiff and the testator after 1989 when the plaintiff left the family home at Narrabri and moved to other country towns in New South Wales and Queensland before settling at his present house. However, the parties came to some agreement on certain factual matters and it was admitted that the plaintiff had visited the deceased as set out in the schedule of visits which was annexed to his affidavit of 2 August 2013. There was no hostility between the plaintiff and the deceased from at least 2003 to the date of death. It was also agreed that the defendant had a close relationship with the deceased and was the deceased's carer for the last five and a half years of the deceased's life. It was also common ground that Gregory, Jacqueline and John received interest free loans from the deceased during his lifetime which they repaid and that a gift of $10,000 to two of those children was the only financial aid which the testator provided for them during their respective lives. 9The schedule to the plaintiff's affidavit shows that he did visit the testator at Narrabri on probably two or more occasions each year. Doubtless he was having to drive from Kingaroy to Narrabri and the evidence shows that he only had a rather old unreliable vehicle. This had something to do with the infrequency of visits. 10The plaintiff says that he was virtually excluded from the family circle before he left Narrabri in 1989. He says that it would appear that his father did not approve of his marriage to his wife, Jennelle. It would seem that this was originally because she was not a Catholic and the testator was a very strict Catholic. Later on relations got worse because Darrel was accused of improper conduct with a young girl and Jennelle gave evidence for the prosecution after the young girl had complained to her about what had happened. The jury found Darrel guilty but he was later acquitted on appeal. The fact that their daughter-in-law sided with the prosecution seems to have completely soured relationships for quite a while. 11The evidence seems fairly clear that the plaintiff and his wife were made most unwelcome in the family home. Despite this, from 2003 the plaintiff did visit the testator and some other members of the family, all of whom seem to live in the Narrabri area. The Claim 12The plaintiff's wish list is that he receive a sum to enable him to build a proper house on his land at Kingaroy. The evidence shows that kit homes can be purchased for about $117,000 but there is a further $10,000 installation cost so that $130,000 has been taken as a round figure for the cost of putting up such a home. In addition, the plaintiff seeks to have a good four-wheel drive motor vehicle, even a second hand one, which he could use not only for personal transport but also for some use on his property which he could, with the aid of a vehicle, use to grow crops to at least a limited extent. His doctor has advised he could work up to two hours a day. The evidence is that such a second-hand vehicle could be purchased for $34,500. Further, the plaintiff seeks to have a more efficient water supply. At the moment he has to get water from the nearby creek and he would like to install a pump and ancillary equipment which would cost about $10,000. He also seeks a tractor which would cost another $30,000 but this claim has been strongly resisted by the defendant on the basis that (a) the plaintiff could not in his state of health be able to operate the tractor for any worthwhile period; and (b) the land which the plaintiff has which is timbered would not need a tractor to do work involved in growing crops on what part of the land has already been cleared. I am in accord with the defendant's submissions on the tractor. 13So far as the house is concerned, the wish list just cannot be met. The estate consists of $270,000 if the valuation of the testator's home is accurate and the market does not change. The defendant wishes to retain the property so one does not have to make any allowance for estate agent's commission and solicitor's costs on sale etc so that I can take the value of the testator's house at $270,000. Affidavits as to costs have been filed. These affidavits do not disclose the precise figure that will be charged at the end of the case but the costs of both sides are in the vicinity of $100,000. Accordingly there is something like $170,000 which could be diverted to the plaintiff if he has established his case. 14Under the will the whole of the estate passes to Paul. In his will the deceased acknowledged that Paul had been his sole carer for the last part of his life. 15It is however also true that Paul benefited at an earlier stage by the deceased transferring property into Paul's name. Paul paid for these properties, but I have not investigated whether he paid full value or not. As a result, Paul does not wish to have his financial circumstances considered as a factor in this case. 16Jacqueline, Gregory and John have made it clear in their affidavits that they do not wish to upset their father's will. It would seem from what they have said that there are two reasons for this: (a) that they think that Paul deserves what he obtained from his father; and (b) they respect their father's wishes. However there is also some evidence to suggest that two of them are not in wealthy circumstances.