Kozak v. Matthews & Messer [2007] QSC 203 (22 February 2007)

Coconut Grove Caravan Park, Pialba, Queensland. He was the de facto husband of the deceased, whose last will and testament is dated 7 December 2004. Under it the deceased's daughters Tracey and Kaylene, the respondents to this application, were appointed executrices and trustees. Probate of the will was granted by the court on 5 May 2005. The applicant claims that adequate provision had not been made for him under the will and seeks an order from this court that adequate provision be made for him out of the estate of the deceased and the costs of and incidental to this application on the indemnity basis be assessed and paid out of the estate of the deceased. He swears also that it is his belief that his application is not within the jurisdiction of the District Court as he has been advised that there are reasonable prospects of his being awarded further provision from the deceased's estate in excess of $250,000.

[2] The deceased was born in England on 23 June 1946. She emigrated to Australia in about June 1963 and married Mr Keith Brian Stanley Messer on 21 March 1964. Mr Messer, a farmer, lives at Kawungan, Queensland. They had three sons and two daughters: Peter Shane Messer born on 14 September 1964, Grant Louis (or Lewis) Messer born on 28 August 1966, Tracey Anne Matthews, former wife of

Mr Noel Matthews, now divorced, born on 17 October 1968, Brian Keith Messer born on 19 March 1971, and Kaylene Joy Taylor, wife of Mr Cameron Taylor, born on 16 November 1972. In paragraphs 3 and 4 of the deceased's will she disposed of her assets as follows:

3. I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and kind and whatsoever situate of or to which I am now or may at the time of my decease be seized possessed or entitled unto and to the use of my Trustees upon the following trusts:-

(a) To pay my just debts funeral and testamentary expenses and any Probate Succession or other Death Duties payable in respect of my estate.

(b) If I am living as husband and wife with my partner PETER KOZAK then I DIRECT my executors to do the following:

(i) Permit the said PETER KOZAK to reside in my property at 16 Windsor Way, Pialba for a period up to and including twelve (12) months rent free;

(ii) Permit the said PETER KOZAK to use all household property and furniture during that rent free period;

(iii) Pay all rates and insurances on the said property from estate funds.

(c) After expiry of the tenancy detailed in paragraph (b) above, to pay and divide the residue of my estate to and among such of my Children as shall be living at my death in equal shares namely KAYLENE JOY MESSER, TRACEY ANNE MATTHEWS, PETER SHANE MESSER, GRANT LOUIS MESSER and BRIAN KEITH MESSER.

4. PROVIDED HOWEVER that in case any child of mine shall die in my lifetime leaving issue living at my death who attain the age of eighteen years then such issue shall stand in the place of such deceased child and take per stirpes and equally between them if more than one the share of my estate which such deceased child would have taken if he or she had survived me and had attained a vested interest.

All five children survived the deceased and all gave evidence at the hearing of this application, as did Mr Keith Messer.

[3] The applicant met the deceased in 1997 when he was working on a farm owned by her husband. He had been living in a caravan from July 1993. He and she began their intimate relationship in January 2000. The deceased and her husband separated in June 2000 and she left the matrimonial home then. From then and until November 2000 the applicant and the deceased lived together in a rented apartment in Freshwater Street, Hervey Bay - I accept the applicant's account on that subject in preference to the inferences drawn by the respondents. In October 2000 the deceased was diagnosed as having cancer. A breast was removed in November 2000. In that month the applicant and the deceased moved into a relocatable cottage owned by her sister, Mrs Anne Organ, and brother-in-law, Mr Wayne Organ, at Scarness, Queensland. They remained there until January 2002. The applicant and the deceased did not pay rent to the Organs but the applicant did mowing and gardening on the property. The deceased later gave Mrs Organ $1,000 in lieu of rent. In January 2002 the deceased purchased a house with established gardens at 16 Windsor Way, where she and the applicant resided until she died there.

[4] On 5 March 2002 the deceased and the applicant executed a deed at the office of the respondents' solicitors. It provided:

[Obscured] DEED is made this 5th day of March 2002

BETWEEN: JACQUELINE CLARE MESSER

of: 16 Windsor Way, Pialba in the State of Queensland ("Jacqueline") of the one part

AND: PETER KOZAK

of: 16 Windsor Way, Pialba in the State of Queensland ("Peter") of the other part

WHEREAS:

A. Jacqueline and Peter have been living together as husband and wife for approximately one and a half years.

B. They have agreed on certain arrangements between them concerning their property and entitlements and wish to record the terms of their agreement.

C. Each party has been independently advised by his or her own legal representative.

NOW THIS DEED WITNESS:

1. This agreement shall be binding upon the heirs executors administrators and assigns of each party.

2. The parties intend this agreement to be binding even if they subsequently are formally married. They understand that this intention does not bind a court under the provisions of Part VIII of the Family Law Act 1975 but express this intention as a factor relevant to the exercise of judicial discretion under Part VIII or any legislation which replaces that part of the Family Law Act 1975.

3. At the date of this agreement all property owned by each of the parties shall remain the sole property of the party who paid for it or received it as a gift.

4. Peter acknowledges that he has made no financial contribution to Jacqueline's assets and agrees that in the event that they cease to cohabit or in the event of Jacqueline's death, he will make no claim upon her or upon her estate as the case may be in respect of her assets.

5. If the parties shall hereafter acquire any property in respect of which each has made a contribution to the cost of acquisition, then in the absence of any express agreement to the contrary, each shall be entitled to that property as tenants in common in shares proportionate to their contributions to the cost of acquisition.

6. During cohabitation each party shall contribute equally to day to day living expenses including routine maintenance of the dwelling in which they reside from time to time provided that:

(a) Peter shall not be obliged to contribute to rates, insurance, capital alterations or improvements, or substantial maintenance (for example re-painting);

(b) But if he does contribute to the cost of the matters referred to in sub-paragraph (a) above, such contribution shall not (in the absence of any express agreement to the contrary) entitle him to any share or interest in the residence.

7. This agreement shall only be rescinded or varied by a written agreement executed by both parties with a similar degree of formality as the present agreement.

IN WITNESS WHEREOF etc.

[5] The applicant swore that he did not receive independent legal advice before executing the deed and that no-one at the office of the respondents' solicitors advised him to do so. He denies having read the deed until he obtained a copy in late 2004, shortly before the deceased's death. He swears he executed it to remove a potential source of stress upon the deceased. He agreed when cross-examined on the subject that he knew what it was, that it provided that he would not contest the deceased's will, that he would not 'go' for anything. He said that at the time he just cared about the deceased's health and well-being, not money. The deceased told the applicant that she was leaving her estate to her five children. He did not say anything to her that would have caused her concern that her will would be challenged and he led her to believe that he respected her express desire to leave her estate to the five children.

[6] The applicant and the deceased enjoyed a loving, mutually-caring, relationship until her death. He performed household chores (mowing, gardening, cleaning of walls and floors, and washing and hanging out clothes), undertook certain odd jobs (oiling external window frames, painting railings and verandah, and enclosing an area under the house with palings), and acted as a full-time carer for the deceased assisting her when required with meals, dressing, showering, going to the lavatory, and taking medicines. He was also able to undertake some painting for

Ms Matthews for which he was paid by the deceased. The applicant provided

full-time care for the deceased from on or about 18 December 2000 until she died. Members of the deceased's family, in particular her sister Anne and the respondents, helped care for her, in particular in the last months of her life from December 2004 to her death. Blue nurses were also in attendance in those last months.

[7] After the separation of the deceased and her husband they entered into an agreement concerning the division of their property. The agreement resulted in a consent order made in the Magistrates Court at Hervey Bay on 22 July 2002. Pursuant to the settlement and consent order the deceased received $1,250,000 from her husband, some of which had been paid to her before the order was made: $22,797.31 received in various sums in 2000 and 2001, $250,000 in January 2002, and a further $250,000 in March 2002. A balance of $727,202.69 was paid in

July 2002. The proceeds of the settlement constituted the bulk of the deceased's estate. The deceased purchased the house at Windsor Way for $230,000. She also bought furniture and air-conditioning for the house, and a motor car. The deceased invested the bulk of the balance of the settlement money in a superannuation policy. She was paid a disability pension. After the settlement the deceased became financially independent for the first time in her life.

[8] In August 2002 the deceased cleared a debt of $7,600 owed by the applicant in connexion with his purchase of a motor car, and on 7 February 2005 she gave him $5,000.

[9] The applicant was the companion of, and carer for, the deceased when she underwent treatment for her cancer, including chemotherapy at the Hervey Bay hospital in 2001, 2003, and 2004, radium treatment at the Royal Brisbane hospital in 2001, and treatment for lumps on her head at the Wesley hospital in 2003. Approximately every six weeks in a fifteen month period they travelled to the

Gold Coast where the deceased consulted a naturopath. They went on frequent holidays together in Brisbane (four to six times a year), Mackay, Canberra, Norfolk Island, Daydream Island, and Maroochydore. They went to clubs at Hervey Bay at least once a week. They visited the deceased's children and grandchildren at Clermont, Moura, and Carnarvon Gorge twice a year. The applicant swore that he and the deceased enjoyed 'common interests including dining out, clothes shopping, and buying gifts for the deceased's children and grandchildren'. The deceased paid for the majority of the expenses incurred in respect of their numerous holidays.

[10] The applicant has no formal qualifications, has never married, has no children or dependents, and is in good health except for having no sight in his right eye. On

17 October 2005, when he swore an affidavit filed on 24 October 2005 in support of this application, he was unemployed and his income was $400 a fortnight from a Newstart allowance. In his oral evidence, however, he swore that he had begun working in September 2005. On 17 October 2005 he swore he had no assets apart from a motor car the value of which he estimated at $8,000, a caravan the value of which he estimated at $2,000, household effects including a print the value of which he estimated at $5,000, a bank account with a balance of approximately $1,000, and a superannuation fund with a balance he estimated at $4,500. He had no debts then.

[11] By 16 November 2006, when the applicant swore a further affidavit filed by leave on 20 November 2006, he was employed as a farm labourer. He was working four days a week earning $420 a week after the deduction of income tax. He estimated his weekly expenses at just under $400. His assets then were his car the value of which he estimated at $4,000 to $5,000, the caravan the value of which he then estimated at $2,000, household effects the value of which he then estimated to be $1,200 to $1,500, and his superannuation fund the value of which he estimated at $10,000. He had then a credit card debt of $1,800. The applicant lived at

16 Windsor Way for a full year after the deceased's death, paying no rent, rates, or insurance.

[12] From January 2000 to December 2000 the applicant received an unemployment allowance called Newstart of about $400 a fortnight which he had been receiving before he began living with the deceased. In December 2000 the applicant received a carer's pension of $90 a fortnight together with another allowance which made his total income about $400 per fortnight. The applicant, who had no savings at the beginning of his intimate relationship with the deceased, made no contribution to the purchase of the house at Windsor Way. The deceased paid the local authority rates and the premiums for the insurance on the house. He paid no rent while he lived with the deceased. Each contributed about $200 per fortnight to a fund earmarked for entertainment, food, and other outgoings.

[13] On 22 February 2005, two days after the death of the deceased, the applicant went to the offices of the respondents' solicitors and notified his intention to challenge the will. In August 2005 he obtained a copy of a letter sent in June 2003 by the second respondent to an old friend of the deceased in England. In it the second respondent referred to the applicant as the deceased's 'partner, companion and full time carer' who 'is very good and manages really well when she needs full time nursing care'.

[14] Each of the deceased's sons has received $60,000 from her estate and each of the respondents $70,000. Under an arrangement with the deceased's children's father, each of them was credited with $6,000 in return for the transfer to him, on or about 25 March 2005, of her motor car. The credit of $6,000 was in each case against a debt owed to him arising from moneys he lent. A statement attached as exhibit A to Ms Matthews's affidavit sworn on 17 November 2006 and filed by leave on

20 November 2006 shows the estimated net value of the deceased's estate is $1,284,460. That estimate includes as assets the interim distribution of $320,000 to the five children and $30,000 as the value of the deceased's motor car, and as liabilities the incurred and expected legal costs of the executrices on this application. No allowance was made for executrices' commission or for the possibility of an adverse costs order on this application. Some minor executrices' expenses may have been paid by the executrices and not claimed from the estate.

[15] Mr Peter Messer, farmer, lives with his wife and four sons rent-free in a

two-bedroom cottage on land owned by his father near Clermont. His eldest son is aged twenty-two years and the youngest fifteen. He farms part of the land owned by his father in partnership with his wife and his brother Brian and Brian's wife. His taxable income for the year ended 30 June 2004 was $42,000 and for the following year $38,900. His wife, who worked as a shop assistant until

November 2005, had a taxable income for the year ended 30 June 2004 of $78,000, and for the following year $71,000. Her income was in part from her employment and in part from her share of the profit of the farming business. Mr Messer estimated their weekly living expenses at approximately $750 a week although he had difficulty in remembering all the items when cross-examined on the estimate. I have, however, no reason to doubt his honesty or accuracy in arriving at his estimate. Mr and Mrs Messer have assets of a net value of approximately $136,000: assets of a value of approximately $312,000 less liabilities of approximately $176,000 including about $34,000 owed to his father, as set out in paragraph 12 of his affidavit filed on 3 March 2006 supplemented by his oral evidence recorded at pp. 147-149 of the transcript. The assets include assets acquired with the $50,000 already distributed by the executrices. Mr Messer has been treated for skin cancer and has been advised to stop farming to avoid further injury from cancer.

[16] Mr Grant Messer, farmer, lives with his wife and three children who are all under ten years old at Yeppoon. Until recently he lived on a farm at Clermont owned by his father, where he worked. He now lives in Yeppoon with his family but continues to work on the farm. His taxable income for the year ended 30 June 2004 was $60,452.42 but in the year before he suffered a loss of $37,100 and in the year ended 30 June 2005 his taxable income was $3,066.86. His farming business has run at a loss over the last three years as the result of frost, locust plagues, drought, and low grain prices. His family receives exceptional circumstances income support of $730 a fortnight. Mr Messer estimates his family's living expenses at approximately $940 a week. Mr and Mrs Messer have assets of a net value of approximately $80,000: assets of a value of approximately $190,000 less liabilities of approximately $110,000 as set out in paragraph 6 of his affidavit filed on

3 March 2006 supplemented by his oral evidence recorded at pp. 171-172 of the transcript. His wife does the farm books but has no outside employment.

[17] Ms Matthews resides at Urraween. She is a primary school teacher. She married in 1994 but she and Mr Matthews separated in August 2001 and they were divorced in November 2003. She had two sons, one born in 1995 and the other in 1997. Her younger son died in March 2006. The elder boy was born with bilateral talipes and a cataract on his left eye. Both conditions have been successfully treated, but he has been left with limited eyesight in his left eye. In February 2006 Ms Matthews estimated her weekly expenses at $920. Her current income comprises $642 a week under an income-protection policy and $120 a fortnight from Centrelink. She has been unable to return to work since her younger son died because she has suffered from post-traumatic shock. Her income as a teacher is about $1,660 a fortnight after the deduction of income tax. She has assets of a net value of approximately $220,000: $430,000 less liabilities of approximately $210,000. That calculation does not include the moneys received from the deceased's estate.

[18] Mr Brian Messer, farmer, lives with his wife and two children near Clermont

rent-free in a house on land owned by his father. The children are under ten years old. He farms part of the land owned by his father in partnership with his wife and his brother Peter and Peter's wife. His taxable income for the year ended

30 June 2003 was $29,306, for the year ended 30 June 2004 $46,080, and for the following year $42,141. His wife had no taxable income in the year ended

30 June 2003, a taxable income of $43,744 for the year ended 30 June 2004, and $43,744 for the following year. She has recently become the proprietor of a plant nursery and florist shop in Clermont. Mr Messer estimated his family's living expenses at approximately $600 to $700 a week. Mr and Mrs Messer have assets of a net value of approximately $156,000: assets of a value of approximately $459,000 less liabilities of approximately $303,000 as set out in paragraph 7 of his affidavit filed on 23 February 2006 supplemented by his oral evidence recorded at pp. 160-161 of the transcript. The assets include items acquired with the $50,000 already distributed from the deceased's estate.

[19] Mrs Taylor lives at Jambin. She is currently fully engaged in domestic duties. She has four young children, the youngest having been born in October 2006.

Mr Taylor is a welder whose taxable income for the financial year ending on

30 June 2003 was $34,540. In the following year his taxable income was $41,226 and in the financial year ending on 30 June 2005 he suffered a loss of $15,500.

Mrs Taylor's taxable incomes for those years were: $1,609, and $927 respectively. Mrs Taylor's family's weekly living expenses are approximately $650.

Mr and Mrs Taylor have assets of a net value of approximately $320,000: assets of approximately $582,000 less liabilities of $262,000 as set out in paragraph 59 of her affidavit filed on 23 February 2006, but taking into account the $6,000 credited by her father to her loan account of $90,000. In November 2003 Mrs Taylor's father gave her a block of land at Hervey Bay. The applicant mowed it four times and she paid him $30 for each mowing. In August 2004 the deceased gave Mrs Taylor $2,500.

[20] The deceased and Mr Keith Messer were never divorced. He was born on

21 November 1936 and so is now seventy years old. At the time of the property settlement the value of Mr Messer's assets was declared at $11,308,342. After he had paid the deceased the $1,250,000 he told her not to worry about the children, that he would look after them, and that she should look after herself spending the settlement money on herself because she was in a bad way with 'a death sentence over her'. He did not, however, give her any formal undertaking to provide for the children. Giving evidence on 22 November 2006, Mr Messer agreed that at that 'stage' it could be that it was his intention that his children would inherit his real estate 'eventually in due course', but he added that circumstances could change. He lives alone, but he has a 'lady friend'. All three sons have spent their adult lives working on his farms with benefit to them and to Mr Messer.

[21] Beginning on 16 July 2002 Mr Messer lent money to each of his five children. The moneys owing at present are: Peter $126,008.90, Grant $59,925.85,

Tracy $9,700, Brian $356,007.50, and Kaylene $84,000. Mr Messer made each loan on the condition that it be repaid when the child had the money to do so, but, except in one instance, did not require any interest on the moneys owing. The one exception to his not requiring the payment of interest was a loan of $240,000 to Brian upon which Mr Messer requires six per cent. per annum with monthly repayments of $3,000. Three weeks before he gave evidence Mr Messer sent letters to his children asking for repayment of their loans because he thought it was time they could pay something.

[22] Section 41 of the Succession Act provides that the estate of a deceased person is liable for the maintenance of others in defined circumstances. Section 41(1), so far as it is relevant, provides that if any person dies testate and in terms of the will adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse or dependant, the court may, in its discretion, on application by or on behalf of the said spouse 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 or dependant. It was not in issue before me that the applicant was the spouse of the deceased within the meaning of that term in the Act: see s.5AA. On behalf of the applicant it was submitted that he was also a dependant of the deceased. He was clearly largely dependant on her during the term of their association, but he was not a dependant as defined in part 4 of the Act. Definitions for part 4 are to be found in s. 40, which, so far as it is relevant, provides:

40 Definitions for pt 4

...

"dependant" means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person's death being -

(a) a parent of that deceased person; or

(b) the parent of a surviving child under the age of 18 years of that deceased person; or

(c) a person under the age of 18 years.

[23] The court must then determine first whether it is satisfied that adequate provision was not made from the estate for the proper maintenance and support of the applicant. That calls for an assessment of whether the provision made for him was inadequate for what, in all the circumstances, was the proper level of maintenance etc., appropriate for the applicant, having regard to, among 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 people who have legitimate claims on her bounty. If the court is satisfied that adequate provision was not made for the applicant it must then proceed to determine what provision should be made for him. Considerations similar to those arising on the first stage of the consideration of an application arise at the second stage: Singer v. Berghouse [1994] HCA 40; (1994) 181 C.L.R. 201, at pp. 209-210 per Mason C.J., and Deane and McHugh JJ. The question of the adequacy, or inadequacy, of the provision made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise the deceased made to the applicant, the circumstances in which it was made, and, changes in the arrangements between the parties after it was made. Those matters will however never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must also be taken into account and weighed with all of the other relevant factors: Vigolo v Bostin [2005] HCA 11; (2005) 221 C.L.R. 191 at p.231 per Callinan and Heydon JJ.

[24] The applicant is an able-bodied man whose lack of sight in one eye appears not to have affected his earning capacity. His association with the deceased was one, it is reasonable to conclude, that brought her comfort and happiness in her last years. In the context of her entire life it was, however, brief - though of course important. In it the applicant devoted his time and energies to caring for her, and in return lived a more comfortable and carefree life than he had before. He lived in a comfortable house rather than in a caravan and had a number of pleasant holidays. He was able to escape the need to earn his living. The deceased made no promises of bounty to him and indeed their relationship proceeded on the assumption, clearly understood by the applicant, that she would leave her estate to be divided among her children.

[25] Apart from providing the applicant with rent-free accommodation during the period of their life together the deceased made two gifts of money to him and provided in her will for the substantial benefit of free accommodation for a year in the house at Windsor Way. Each of the deceased's children has dependants and none is in more than modest circumstances. If only they all share equally in the bulk of the deceased's estate, as she intended, each will receive only a modest sum. The sons all depend for their livelihood on farming and so are subject to all the vicissitudes that farmers encounter: frost, locust plagues, drought, low prices for produce and so on.

[26] Taking all of the circumstances of the case into account, I am not satisfied that the applicant has established that adequate provision was not made for him in the deceased's will. Of particular relevance are: the brevity of his relationship with the deceased and the absence of issue from it; his age and good health; the absence of any promise of bounty by the deceased emphasized by her stated intention, unconditionally accepted by him until immediately after her death, that she wished to leave her estate to her children; the provision she made for him in the will; and the claims of her children, none of whom could be regarded as in other than modest circumstances, on her bounty. The evidence shows the deceased to have been an intelligent, decent woman, fully aware of her responsibilities to those who might have claims on her bounty. Her will supports that conclusion, and I am not in the least persuaded that it would be appropriate to substitute the assessment of her responsibilities contended for by the applicant for that she reached after, it appears clear, thoughtful, wise, and just consideration.

[27] The court cannot of course give effect to an attempt by the applicant to contract out of making an application, in this case in the deed executed nearly three years before her death on 5 March 2002 (Lieberman v Morris (1944) 69 C.L.R. 69), but the evidence of the execution of the deed by the deceased and the applicant is relevant to an understanding of the terms upon which they cohabited after it was executed. In Singer v. Berghouse a widow applied for provision out of her husband's estate. An ante-nuptial agreement was held to be admissible for the limited purpose of showing that the parties thought its terms fair at the time they signed it: in the event of her husband's death the wife could not say that she had expectations of a more affluent life than she had led before the marriage. In this case the deed is relevant to the totality of the relationship between the applicant and the deceased, because, at least after its execution, the relationship between the applicant and the deceased proceeded on the assumption, reinforced by assurances by the applicant, that its terms would be honoured. At the hearing something was made on behalf of the applicant of his evidence that he had not read the deed before he executed it and did not receive any legal advice about it. I do not regard those matters to be of any moment since he freely admitted that he knew what the effect of the deed was.

[28] Something was also made on behalf of the applicant of the present wealth of Mr Keith Messer. The suggestion was that the claims of the children on the deceased's bounty should be seen in the context of their inheritance of shares in Mr Keith Messer's large estate on his death. I am not persuaded that that expectation of windfalls at an indeterminate future time is of great moment in this case. There is no certainty that Mr Messer will leave the bulk of his estate to his children, although they may with justification expect him to do so. It is not certain that if the bulk of his estate is left to his children it will be left in equal portions. Mr Messer's circumstances may change, particularly if he remarries. In addition, Mr Messer's estate may or may not remain as valuable as his assets at present appear to be. The market value of his assets may decline in changed economic circumstances.

[29] Accordingly, for the reasons I have given, I have come to the conclusion that this application should be dismissed. Recognizing that it might be thought that I am wrong in that conclusion, I should record that if it were thought that this application should succeed, in my opinion it should do so only to a modest extent - no more than $50,000.

[30] I shall invite further submissions on costs.