Ruddy v Clarke [1996] QCA 254

Court of Appeal (Qld)|1996-08-02|Before: Fitzgerald P, McPherson JA, Byrne J, Before Fitzgerald P

This is an appeal from the dismissal of an application made under S.41 of the Succession Act 1981 for provision out of the estate of the appellant's father.

The testator died on 9 July 1994. By his will dated 18 September 1992, he gave all his property to his daughter-in-law, Pamela Clarke, who was also appointed as his executrix. The estate was modest, consisting essentially of a house at the Gold Coast valued at about $150,000 and household furniture worth less than $20,000.

The appellant's affidavit included an argumentative assertion that her husband might lose his job by the time he reaches age 50, but there was no evidence to support this pessimistic apprehension. The appellant deposed to suffering middle lobe bronchiectasis. The only evidence concerning this lung disease was her statement that the condition makes her highly susceptible to colds, influenza and other respiratory viruses. If she contracted such an infection, she "may need an operation to remove the diseased part of my lung". There was no evidence to indicate the degree of risk of such an eventuality.

The respondent was born in May 1951. In 1974 she married the testator's son, Michael. Their daughter was born in 1976. In 1979 the couple moved to the Gold Coast and began living with the testator and his wife. Their son was born in 1981. The testator's wife died in July 1982 after a protracted illness. Shortly before she died, she extracted a promise from the respondent to care for the testator. The promise was honoured.

After the testator's wife died, the respondent cared for him until his death. Because he insisted that he could not cope in the house alone, she gave up plans to work. Instead she became his unpaid constant companion and carer. She and her two children lived in the house with him, sharing household expenses. She attended to his banking and correspondence and other personal administration. She went on outings with him, she cooked and cleaned for him, and she acted as hostess at social functions he conducted at home. As the testator used to tell people, the respondent "has done everything for me".

In 1983 the respondent's husband went to Canberra on a training course. He still lives there. The marriage broke down during 1983, although the respondent and her husband have remained friendly and she and their two children visit him in Canberra occasionally.

During his lifetime, the testator made no secret of his gratitude. One of his friends, Mr Kelly, said that he and the testator discussed what would happen to their properties after they died. The testator used to say that he "had to look after the one that looked after me -and that's Pam. I don't know how I would have got by without her ...". He told the solicitor who prepared his will that he wanted to provide "security" for the respondent and her children in appreciation of all that she had done for him.

While she lived with the testator, the respondent received a single parent pension. Another Social Security benefit - an "additional family payment" - brought her $132.50 per fortnight. By July 1995, when her affidavit was sworn, she earned about $100 per week from house cleaning. She had $1,500 in the bank. Her expenses were about $263 weekly. Apart from a car worth about $4,000, by the time of the hearing her assets apparently consisted of furniture inherited under the will.

As the testator may be taken to have anticipated, the respondent now proposes to seek full-time employment. However, her employment prospects are somewhat restricted by arthritis in the left hip and knees. She cannot stand for protracted periods.

The primary judge considered that the appellant had not established that the will failed to make adequate provision for her proper maintenance and support. The challenge to his evaluation is founded on a contention that the testator should have provided a legacy -$20,000 was suggested - to accommodate the prospect that the appellant might in future encounter adversity: for example, in the event of her or her husband's ill-health.

Whether the will failed to make "adequate" provision for the appellant's "proper" maintenance and support requires an examination of such matters as the size and nature of the estate, the appellant's financial circumstances, the relationship between the appellant and the testator, and the relationship between the testator and others with "legitimate claims" upon his bounty: Singer v. Berghouse [1994] HCA 40; (1994) 181 CLR 201, 209-210; cf. Pontifical Society for the Propagation of the Faith v. Scales [1962] HCA 19; (1962) 107 CLR 9, 19; McCosker v. McCosker [1957] HCA 82; (1957) 97 CLR 566, 571-572. Here the estate was small, and a moral claim competed with the appellant's which the testator was anxious to recognise in a substantial way. The appellant had a house, and the testator wanted the respondent to have one.

The character of the testator's assets was a major impediment to generosity to the appellant. Unfortunately, the nature of the estate meant that a legacy could not have been provided unless the testator's house were sold. Apart from a small amount of cash in a joint bank account with the respondent, all the testator had was his house and household furniture. And it was not suggested that the estate was large enough to provide both a house for the respondent and to afford such provision as the appellant seeks.

It is true, as Mr Newton submitted, that the appellant could live for a time with her mother. The lady is in her late 60s, has her own house, and is happy for the respondent to live with her. But that outcome would not have provided the security the testator wished to accord to the respondent in recognition of her selfless dedication. It would also have exposed the respondent, who is one of eight children, to the high risk of not having a place of her own after her mother dies.

The appellant's circumstances were sufficiently comfortable that neither of her adult children contributed to household expenses. Even so, no doubt she would have found a legacy advantageous. However, especially in view of the character and size of this estate, and the understandable desire of the testator to provide the respondent with a secure future, the judge was entitled to conclude that the appellant had not been left without adequate provision for her proper maintenance and support.

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