King & Anor v Condon & Anor

[2] Douglas William King is Robyn King's father, and entitled to the administration of her estate. He has applied for an order that he be substituted in the proceeding for his deceased daughter.

[3] Kevin Maurice Condon and Jennifer Leigh Goodrum are the personal representatives in the estate of John W F Evans. They have cross-applied for an order that the application made by Ms King be struck out or stayed.

[4] The short question is whether an order for further provision may only be made in favour of a living applicant. Counsel's research suggests the point has not has yet been determined by a court in this jurisdiction.

[5] Mr Stevens, who appeared for Mr King, submitted that in determining whether adequate provision was made, one looks to the position as at the date of death of the testator, while allowing for foreseeable future events. He relied especially on Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 507-8 and White v Barron & Anor [1980] HCA 14; (1980) 144 CLR 431, 441. At the date of her stepfather's death, on Mr Stevens' submission, a cause of action arose in favour of Ms King, being the cause of action she asserted in the proceeding she commenced on 11 September 2008. With her death, that cause of action survived for the benefit of her estate, because of s 66 of the Succession Act.

[6] Mr Schulte appeared for the personal representatives of the deceased stepfather. His essential submission was that properly construed, the Succession Act presupposes that an applicant under s 41 will be living as at the determination of the application for further provision. He submitted that White v Barron did not support a view that one looks first to the position as at the date of death of the testator in determining whether an order for provision or further provision should be made. He also submitted that one of the elements of the cause of action which s 66 would embrace is the existence of a living applicant at the date any order is made.

[7] Section 41(1) of the Succession Act provides:

"(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."

[8] It is very well established that a court must first look to the position obtaining at the death of the testator, in order to determine whether or not the testator made adequate provision for the applicant. If not, then the court determines the extent of any further provision. The estate's liability for further provision is to be determined as at the date of death, which would suggest that any cause of action accrues then. As Dixon CJ said in Coates (p 508), "[t]he ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the testator's death."

[9] In White v Barron, Wilson J (in the majority), by reference to comparable New South Wales legislation, described the so-called "two stage process" (Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208; Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, 212) in this way (p 455):

"The jurisdiction of the Court to deal with such a claim appears from s 3 of the Act. It depends upon a finding by the Court that the testator: 'disposes of or has disposed of his property either wholly or partly by will in such a manner that the widow, husband, or children of such person, or any or all of them, are left without adequate provision for their proper maintenance, education, or advancement in life as the case may be'. Given such a finding, then, 'the court may at its discretion, and taking into consideration all the circumstances of the case, on application by or on behalf of such wife, husband, or children, or any of them, order that such provision for such maintenance, education, and advancement as the court thinks fit shall be made out of the estate of the testator for such wife, husband, or children, or any or all of them'."

[10] On that basis, it is my view that when Ms King commenced her proceeding on 11 September 2008, she was asserting a subsisting cause of action.

[11] Section 66(1) of the Succession Act provides:

"(1) Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after the 15 October 1940 all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate."

[12] That operated, upon Ms King's death on 22 November 2008, to continue the cause of action for the benefit of Ms King's estate.

[13] In assessing the extent of any further provision which should be allowed, the court would obviously recognize the circumstance of Ms King's death, and presumably confine any further provision to the period from the death of her stepfather to her own death. That Ms King died prior to the determination of her application did not extinguish her cause of action, or forestall its accrual. The cause of action had arisen upon the death of her stepfather. Her own subsequent death bears only on the assessment of the quantum of any further provision to be allowed.

[14] As put by Dixon CJ in Coates (p 508), referring to the period between the death of the testator and the determination of the application for further provision, "it is...impossible to treat actual intermediate occurrences as more than evidentiary facts". In other words, they do not bear on the question of liability.

[15] I mention Mr Schulte's reference to Re Bodman [1972] Qd R 281, where Hoare J said (p 285):

"It is important to remember that events which have happened after the date of the testator's death may be taken into consideration 'because they suggest or tend to show what antecedently might have been expected, but they must not be outside the range of reasonable foresight.' Coates v National Trustees Executors and Agency Co Ltd (supra) per Dixon CJ at p 508. However, as stated by Townley J in Re Brown deceased (supra) if the primary question whether the testator has failed to make provision for the proper maintenance and support of the applicant, which is to be determined upon the circumstances existing at the date of the testator's death, including circumstances which could reasonably be foreseen at that time, is answered in the negative, then no subsequent alteration in those circumstances confers jurisdiction to make an order under the Act."

[16] That was, with respect, an orthodox rendition of the analysis, in Coates, of how one approaches the so-called jurisdictional question, the "first stage", where one looks at the position as at the testator's death, while allowing for subsequent circumstances then reasonably foreseeable.

[17] Mr Schulte went on to challenge the contention that an estate's liability for further provision is in this State to be determined by reference to the position as at the death of the testator, on which he submitted White v Barron was not authoritative. He fastened on the present tense of the words of the New South Wales legislation, where by the will the children "are left without" adequate provision. The Queensland words are to similar effect, in providing that under the will "provision is not made" for an applicant's proper maintenance and support. Each piece of legislation requires one to look to the position at the testator's death, at the "first stage" of the inquiry. The present tense language is not however referable to the date of determination: it is not a question of whether the applicant is then left without adequate support.

[18] In McEvoy v Public Trustee (1989) 16 NSWLR 92, Powell J held that under the New South Wales Family Provision Act, an order may only be made in favour of a living person. But as Mr Schulte fairly acknowledged, there are important differences between the New South Wales legislation and the Queensland legislation. It suffices to reproduce this observation at p 101, in the course of His Honour's listing of the reasons for his conclusion:

"3. The requirement that the court be satisfied, at the time of dealing with the application, that the applicant 'is an eligible person', seems to lead inescapably to the view that an order may only be made in favour of a person then living."

[19] My conclusion accords with the tentative view of the authors of de Groot and Nickel: Family Provision in Australia (3rd ed, Butterworths, 2007) para 2.27:

"Although it is not possible to express a firm opinion on the result of an application where the applicant dies before the hearing, the better view would seem to be that the cause of action does survive because of the relevant survival legislation."

[20] One rhetorically asks, why should not an estate be compensated, as an example, for expense incurred prior to an indigent applicant's death, to maintain the applicant at an adequate level, which may have involved borrowings, where a sufficiently well-off testator should have recognized the need and satisfied it. In that sort of case, why should the applicant's beneficiaries be left to shoulder the burden of the neglect of the testator?

[21] My conclusion is that the applicable cause of action arose upon the stepfather's death, Ms King asserted it in her filed application, and upon her death, it survived for the (potential) benefit of her estate.

1. on the application by Douglas William King, that he be substituted in the proceeding for Robyn Ann King, in his capacity as administrator of her deceased estate, and that the costs of and incidental to his application be reserved; and

2. on the application by Kevin Maurice Condon and Jennifer Leigh Goodrum, that the application be dismissed, and that the applicants pay the respondent Douglas William King's costs, to be assessed on the standard basis.