Recent Cases Relating To Family Maintenance Provisions Pursuant To The Succession Act

Matter of Merita Ruby Evelyn Nesbit v The Public Trustee of Queensland (2003) QDC 322, the family provision application by Merita Nesbit and joined by Joan Nesbit.  Other interested parties were The Public Trustee as Executor and two adult sons who are beneficiaries.

The Court had regard to the matter of Singer v Berghouse.  The Court held that moral claims or duties must be taken into account and it was accepted that moral issues retain relevance in this jurisdiction.  The Court in that matter rejected the application.

Matter of Leonard Anthony Daniels v Arthur George Brooks and Denise Kay Halliday Executors.  A further claim was made by Leonard Anthony Daniels out of the estate requesting a payment of $100,000.00.  The Court in that regard upheld the application.  The circumstances were that a Will was made wherein the Executrix left $2,000.00 to each of Leonard’s sons, Gerard and Gregory, and the residuary estate to the sister Daphne Wilson.  The total amount of the estate was $410,500.00.  The Court had regard to the financial circumstances of Leonard and also his circumstances in life.  He was unemployed, 70 years of age and had very little assets or income.  The Court applied the principles and had regard to Singer v Berghouse and confirmed a two stage process.  The first stage was a determination as to whether the provision made with inadequate for what in all the circumstances was the proper level of maintenance appropriate for the applicant having regard amongst other things to the applicant’s financial position, the size and nature of the deceased 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.  The Court also referred to Digolo v Bostin (2005) HCA 11 a High Court case.

The Court had significant regard to Leonard’s health and current circumstances.  The Court also had regard to the contribution to the build up of the estate by Leonard.

Leonard had significant health concerns and had previously received an inheritance of one sixth of his father’s estate.

In respect of the second stage, the Court considered that the Court must determine is an assessment as to the order which should be made in favour of the applicant and that there are some circumstances in which a Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance.  The question however is of objective fact to be determined by the Court and the second stage involves the exercise of a discretion by the Court.

The Court ordered that a payment of lump sum of $100,000.00 be made to Leonard which represented one quarter of the estate.

In the matter of Warren William Hiscock v Darryl John Hiscock as Executor of the Estate of Louisa Ann Hiscock (2004) QDC 407 the Court considered an application for provision in the circumstances that a Will was left in which probate was granted to the son, Darryl Hiscock, the applicant under the Will was to receive $25,000.00 and one half of the balance of proceeds of the sale of the residence at Nerang after $5,000.00 is paid to the Respondent.  The Respondent is the sole legatee of a home unit at Fairlight, New South Wales and the residue of the estate of the Testatrix.  This amounted to an amount of $70,000.00 and that the estate amounts to a total amount of $802,000.00 however after taking off costs the amount of the estate was $561,626.00.  The applicant also suggested a debt was owed to the estate by the Executor and residuary beneficiary of $90,000.00.  The financial position of the applicant was not strong, he has an income of $8,000.00 per annum, he is struggling financially, has no other assets and lives in the same as where his shop is located.  He however owned a rental property in New South Wales but it was valued at $42,000.00.  He also owns land valued at $30,000.00.

The applicant is 60 years of age and the total of his assets were $120,000.00 net.

The Court in that regard ordered a sum of $150,000.00 to be paid to him in lieu of the amount that he was entitled to.  This represented an increase of an $80,000.00 on top of the amount that he was granted.  This is in respect of a estate that is valued at $560,000.00.

There also have been a substantial number of cases in which the estate was $100,000.00 or around that figure and which a claim has been by a prospective beneficiary who has been left something under the Will.  The application in the most part is usually rejected as in small estates the Court are loathe to make orders for maintenance and are loathe to allow applications to succeed having regard to the costs that are incurred by the parties.  Costs are usually ordered against that applicant on an indemnity basis and certainly not out of the estate.

In the Supreme Court matter of Sylvester v Sylvester & Anor (2010) QSC 331 the Court had regard to an application for provision by one of the children of the deceased with an estate having a value of $4.5 million.  The applicant was specifically excluded from the Will and the Court had regard to the relationship and the particulars relating to the estate and consequently dismissed the application.  The application however was an application for summary judgment.

In the Supreme Court matter of Freeman v Jacques (2005) QSC 200 in a matter where an applicant who is the daughter of the deceased made application for provision together with other children making applications for provision the Court ordered that a sum of $100,000.00 be paid to one applicant, another $100,000.00 be paid to another applicant and the claims filed by the remainder of the children were dismissed.  The estate represented a sum of approximately $1 million.  The Will provided that the whole of the estate would go to the respondent who was the Executor.  There was no relationship between the applicants and the deceased and the applicants were stepchildren.  The applicant who received $100,000.00 showed financial circumstances where those circumstances showed she was impecunious, that she had very little assets and same for the other applicant.  What is interesting is that the other applicants failed having regard to their financial position.  What is important is that they were not mentioned in the Will specifically as a result of their having no relationship with the deceased.

In the matter of Peter Geoffrey Daley and Barton being Daley v Barton and Anor (2008) QSC 322 the Court had chance to consider an application for indemnity costs to be paid where a calderbank offer had been made.  In this regard the Plaintiff had sent letters containing a calderbank offer which was rejected.  The orders made by the Court were that the Defendant be paid his costs on an indemnity basis up to 2 May 2007 and that the Defendant pay the Plaintiff’s costs from 7 February 2008.  The Court on the whole upheld the calderbank offer and the final order was that the Plaintiff was otherwise entitled to indemnity costs from the date of the offer.

In the matter Remay (2000) QSC 478 the Court had regard to an estate which had a value of $2 million and four children who were not referred to in the Will made application for provision.  Each child gave circumstances as to their assets and the Court considered each of the applicants was in good health, lives in modest comfort and all had substantial financial liabilities and children for whom to provide. The Court considered that while each applicant could survive without the testator’s bounty, the size of the estate suggested that adequate provision had not been made.  The greater the estate the more contingencies may arise in the future.  In this regard the Court ordered $150,000.00 to two applicants, $200,000.00 to another applicant and $125,000.00 to a further applicant who had no spouse and no children.  This represented approximately one tenth of the estate to each applicant.


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