Apps v Corbett & Anor [2023] QDC 55

DISTRICT COURT OF QUEENSLAND CITATION: Apps v Corbett & Anor [2023] QDC 55 PARTIES: MELVYN JOHN APPS (applicant) v JACOB JAMES CORBETT (first respondent) and DIMITY SHANEEN PARRY (second respondent) FILE NO: D102/22 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT District Court of Queensland Maroochydore DELIVERED ON: 6 April 2023 DELIVERED AT: Maroochydore HEARING DATE: Decided on the papers without oral hearing JUDGE: Cash DCJ ORDERS: Order as per draft. CATCHWORDS: SUCCESSION – FAMILY PROVISION – JURISDICTION – GENERALLY – where claim made for provision from estate of deceased – where parties reached an agreement as to distribution – whether the applicant has been left with adequate provision for proper maintenance and support CASES: Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Afoo v Public Trustee of Queensland [2012] 1 Qd R 408 SOLICITORS: Greenhalgh Pickard Solicitors for the applicant Bradley & Bray Pty Ltd for the respondents [1] This is an application made by the respondent pursuant to s 41 of the Succession Act 1981 (Qld). It arises from the death of Lurline Yvonne Apps (the deceased) on 15 November 2021 at Nambour Hospital. Prior to her death the deceased resided at Estia Health, an aged care facility in Mount Coolum. The deceased’s estate is sizeable with -- 1 of 4 -- a total value of just over $1,246,000. It is mostly comprised of $807,500 in bank accounts and a refundable accommodation deposit worth $380,000. These assets were derived from the sale of the deceased’s former home in Maroochy River. There is also a modest share portfolio valued at $65,000. The deceased is survived by two of her children, Melvyn John Apps (the applicant) and Shaneen Lurline Joyce (commonly referred to as ‘Shan’). A second son died before the deceased in September 2011. The deceased also has several grandchildren. One of them, Dimity, who is the daughter of Shan, was appointed an executor of the deceased’s will along with Mr Corbett, a solicitor. They are the respondents to the application. [2] The deceased’s will left most of her estate, being the proceeds of the sale of the house and the refundable accommodation deposit, to her daughter Shan. Some shares were gifted to the applicant and some to the deceased grandchildren. The applicant was also to share the residue of the estate, but it is unlikely this has much value. [3] In July 2022, the applicant made a claim for provision out of the estate. Since then, the parties have attended mediation and agreed to a distribution of the estate that would see the applicant receive $250,000 from the proceeds of the sale of the house. The issue to be resolved by the present application, in accordance with section 41, is whether the deceased left adequate provision for the applicant under the will and whether the court should exercise its discretion to make further provision from the estate of the deceased. Evidence [4] The essential evidence in this application consists of the affidavit of Melvyn Apps filed on 20 July 2022 and the affidavits of Dimity and Shan Apps, both filed on 22 November 2022.1 These reveal the following matters. The partnership and the family trust [5] The deceased and her husband were farmers. The deceased maintained the household and cared for their children while her husband tended to crops and manual labour. In 1965, they formed a farming partnership and began purchasing several farming properties together. Their two sons, the applicant and his brother, later joined the partnership. Unfortunately the family fell into dispute and the partnership was dissolved in 1982. Applicant’s personal circumstances and financial position [6] The applicant is 75 years old. He is married with three adult children and five grandchildren, for whom he provides to varying degrees. The applicant commenced an apprenticeship in motor mechanics and a subsequent course in diesel mechanics following Grade 10. He then worked as a diesel fitter for several years before joining the family partnership as outlined above. Following its dissolution, the applicant moved 1 There are also subsequent affidavits from the respondents and Shan Lurline Joyce (a residuary beneficiary), but these deal with the value of the estate and the compromise agreed to by the parties. -- 2 of 4 -- to Papua New Guinea where he worked as a workshop foreman. He then returned to Australia at the end of 1984, where he obtained employment as a diesel fitter in Blackwater. He remained in this role until 2009 when he sustained a back injury during a workplace accident. Following the injury, the applicant only performed casual and sporadic farming work before retiring. The applicant suffers from ongoing back pain and limited mobility because of the injury. [7] There is dispute about the circumstances and settlement of the dissolution of the partnership. It is not necessary to resolve this dispute for the present application. [8] The applicant’s wife has provided for the family financially since 2010. Her last paid role was as a farm hand in 2018. Since then, the applicant and his wife have relied on their joint pension which consists of a $5,000 payment per month. This income is supplemented by an additional $70 Centrelink allowance per quarter. The applicant and his wife jointly own several assets, the most valuable of which is their home, valued at approximately $700,000. As well they have a caravan ($18,000), investment banking account ($65,000), everyday banking account ($3,000) and household contents ($10,000). Melvyn additionally owns, in his own name, a 1991 Toyota Landcruiser ($6,000) and tools and equipment ($5,000). The applicant and his wife’s joint expenses amount to approximately $7,000 per month. In addition to these monthly expenses, they are providing financial support to each of their children and grandchildren, some of whom have special needs. [9] There is dispute about the financial assistance the applicant is said to have received from his mother and father during their lifetime. Again, it is not necessary to resolve this dispute in the present application. Consideration [10] The present application is intended to give effect to the agreement of the parties reached in February 2023 following mediation. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two-stage process is employed.2 First, the court must determine a jurisdictional question of whether an applicant has been left without adequate provision for his or her proper maintenance and support. If an applicant has been left without adequate provision, the court will determine what provision ought to be made in the circumstances. In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.3 The question of whether an applicant has been left without adequate provision is to be answered having regard to their financial position, the size and nature of the 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 the estate. If an applicant has a legitimate claim on the estate, the second question is what amount 2 Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191. 3 Afoo v Public Trustee of Queensland [2012] 1 Qd R 408. -- 3 of 4 -- they should properly receive. This requires consideration of what provision a ‘wise and just testator’ would have made. [11] It is difficult, and unnecessary, to form a concluded view about the totality of the relationship between the applicant and the deceased. There are some indications the deceased held affection for the applicant, and there is no suggestion she intended to deprive him of any benefit under the will. As for the applicant’s financial circumstances, he shares a valuable asset with his wife, but he has little income while having responsibilities to his family. [12] The parties attended mediation in February 2023 where a resolution to the present application was achieved. The effects of the draft order proposed would be that $250,000 be paid to the applicant from the net proceeds of the sale of the Maroochy River property. The balance of the bequests will be undisturbed. The applicant will bear his own costs and the respondent’s costs are to be paid from the estate. Litigation would reduce the value of the estate and in turn, the beneficiaries’ entitlements. Substantial weight should be given to the compromise achieved by the parties [13] For these reasons, there will be an order in the terms of the draft that has been provided. -- 4 of 4 --