Crowley v Crowley [2019] QDC 114

DISTRICT COURT OF QUEENSLAND CITATION: Crowley v Crowley [2019] QDC 114 PARTIES: KELLY CROWLEY (applicant) v MARION ELAINE CROWLEY (AS EXECUTOR OF THE ESTATE OF JOHN PATRICK CROWLEY – DECEASED) (respondent) FILE NO: 226/18 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Cairns DELIVERED ON: 21 May 2019 (ex tempore) DELIVERED AT: Cairns HEARING DATE: 17 May 2019 JUDGE: Fantin DCJ ORDER: Application allowed. CATCHWORDS: SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – compromise of family provision application under Part 4 of the Succession Act 1981 (Qld) – whether provision is adequate and proper having regard to the totality of the relationship between the applicant and the deceased – where the absence of a good relationship is not a disqualifying factor – where the applicant was the son of the deceased – where the applicant and the deceased did not enjoy a close relationship – where the applicant suffers from chronic illnesses and is unable to work – where only a modest provision was made for the applicant in the deceased’s will – where the parties reached agreement at mediation – whether the court should make orders to give effect to the settlement Legislation District Court Act 1967 (Qld), s 68(1)(b) Succession Act 1981 (Qld), s 41 Cases Singer v Berghouse (No 2) (1994) 181 CLR 201 Vigolo v Bostin [2005] 221 CLR 191 -- 1 of 5 -- 2 White v Barron [1980] 144 CLR 431 COUNSEL: C Ryall for the applicant M Treston (solicitor) for the respondent SOLICITORS: Preston Law for the applicant Murray & Lyons Solicitors for the respondent [1] This is an application for final orders to give effect to the compromise of the family provision claim by Kelly Crowley, pursuant to section 41 of the Succession Act 1981 (Qld), in the estate of John Patrick Crowley. [2] The applicant is the 39 year old son of the deceased. The deceased died on 10 August 2018, aged 72, in Cairns. The respondent is the 72 year old sister of the deceased and the executor of his last will. The applicant and the respondent are both competent adults and reached the settlement with the assistance of legal representation at a mediation in April 2019. The deceased was survived only by the applicant and the respondent. [3] By way of background, in 2015, the deceased made a will in which he gave $100,000 to the applicant, $20,000 to his friend, Mr Hards, and the residue to the respondent. At the same time, he wrote to the applicant saying that he may alter the amount given to the applicant in a later will, depending on the amount of contact he had with the applicant and how well they got on. [4] In 2017, he made another will which was his last will. Pursuant to that will executed on 8 June 2017, the deceased appointed the respondent as executor and trustee. Under the terms of that will the deceased left only $20,000 to the applicant, $20,000 to his friend, Mr Hards, and the residue to the respondent. [5] At the time of making his last will, the deceased also made a statement about his relationship with the applicant. In it, he said that the applicant had very little do with him in recent years and had been a great disappointment to him. He expressed the view that the applicant had treated him badly and had been uncooperative in communications. He said that he had provided to the applicant in the past and was disappointed that the applicant had a sense of entitlement to receive his estate on his death. He also expressed the view that he thought the applicant had acted in a way to punish the deceased for past mistakes, but that that was based on incorrect information. He said that the applicant had not been available to discuss this. [6] At the time of his death, the deceased’s assets were modest. He owned a small house in Cairns, valued at about $225,000 and had an amount of cash. As at April 2019 that amount was about $54,000. In April 2019 his assets totalled $278,998.54. At the same time, his liabilities were estimated, in total, at about $84,000. Therefore, as at the date of the mediation in April 2019, the net value of the deceased’s estate was only $194,718.79. [7] Separately to that, the deceased had a potential interest as a beneficiary of a discretionary trust. The deceased was a sole director and shareholder of a trustee company which was the trustee for the Crowley family discretionary trust. In 2012, -- 2 of 5 -- 3 that trust bought rural property at Malanda for $443,000. The only specified beneficiary of the trust was the deceased, but the other potential beneficiaries under the trust included children and brothers and sisters of the deceased. No evidence was filed about the assets of the trust or the control of the trust as at the time of the mediation. [8] On 14 December 2018, the applicant filed the originating application, seeking adequate provision to be made for his proper maintenance and support from the deceased’s estate. In January 2019, Mr Hards, the other beneficiary under the will, was served with the application. He did not respond to it and has not become a party to it. No other eligible applicants have applied under section 41 of the Act. [9] Under section 41 the court may, in its discretion on application, order that such provision as the court thinks fit be made out of the estate of the deceased person. As the applicant here is not seeking to be awarded provision from an estate with a value that exceeds $750,000, this court has jurisdiction to make an order pursuant to section 68(1)(b) of the District Court Act 1967 (Qld). [10] I have had regard to the well known principles applicable to the determination of family provision claims, including the two-stage process identified in Singer v Berghouse (No 2).1 That two-stage process was confirmed in Vigolo v Bostin.2 The issue of quantum is judged according to prevailing community standards of what is right and appropriate at the time: White v Barron.3 [11] It is clear that the application calls for the exercise of the court’s discretion and cannot be achieved by mere agreement. A court will have regard to the fact that the parties have reached agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of the discretion. Nonetheless, whatever the terms of an agreement reached at mediation in this case, it cannot dispose of the application made by the applicant. An order of the court is required to do that. If the court is satisfied that settlement falls within the bounds of the reasonable exercise of discretion, then the court should make orders to give effect to the settlement that the parties have reached. [12] I am also assisted by the principles and authorities set out at paragraphs 12 to 15 inclusive of the applicant’s outline of submissions. They make it clear that in determining whether provision is adequate and proper, the totality of the relationship between those interested in the application is to be considered. Regard may be had to statements like that made by the deceased before his death. However, courts also recognise that there may be poor relationships between family members that do not arise from fault on anyone’s part. The absence of a good relationship is not a disqualifying factor. Disharmony between parent and child and disappointment in a parent’s hopes and expectations are unexceptional and almost inevitable. They do not abrogate the obligation of a parent to provide on death for the child’s needs for maintenance and advancement in life. [13] It is in that context that the factual matters concerning the relationship between the applicant and the deceased must be considered. The applicant’s circumstances at the date of the application are these. He is a 39 year old man. He lives in South Australia 1 (1994) 181 CLR 201 at 208. 2 (2005) 221 CLR 191 at 197. 3 (1980) 144 CLR 431 at 440. -- 3 of 5 -- 4 with his mother. He has lived with her for five years. Before that he lived with his grandmother for three years. He lives with his mother because he suffers from a number of serious health conditions, including chronic fatigue syndrome, fibromyalgia and anxiety with depression. His symptoms include fatigue and pain. They are managed by medication, light exercise and psychology. As a result of his health conditions, the applicant has been unable to work for about 11 years. He has been on a disability support pension for at least eight years because of his health conditions. His assets are limited to about $7,000 in the bank and personal effects worth about $5,000. The applicant has been advised by his doctor that he will continue to suffer from his illnesses indefinitely. [14] The history of the applicant’s relationship with the deceased can be summarised as follows. The applicant’s mother was in a relationship with the deceased from 1976 to 1983. In that time they had two sons, Jason, born in 1977, and the applicant, born in 1980. The applicant’s mother and the deceased separated in 1983 when the applicant was three years old. During the relationship, the deceased drank excessively and frequently. The applicant’s mother also deposes that he was abusive and violent. After the separation, the deceased did not assist the applicant’s mother by supporting her, the applicant, and his brother, either financially or as a parent. The applicant and the deceased only saw each other and spoke sporadically after his parents separated. [15] In 2012 the applicant’s older brother Jason died. The deceased never had any other children. At the date of his death, the deceased did not have a spouse or any dependants. In about 2011 the deceased won $1.1m in a lottery. [16] The applicant’s mother deposed that when the applicant was young, the deceased saw the applicant and his brother only spasmodically and on the deceased’s terms and that this was disruptive and unsettling to the boys. There was a brief period in the early 1990s when the deceased saw the applicant more often, but that comprised occasional visits and some time spent together during school holidays. [17] The applicant met the deceased again in 2013 at the funeral of his older brother. There was some contact between the applicant and the deceased between January 2015 and January 2017. I will say more about that later. The applicant did not receive anything by way of financial provision from his father either before or after his lottery win in 2011. [18] The circumstances of the respondent are these. She is the deceased’s sister. She is 72 years old. She has a house on the Sunshine Coast which she owns and lives in, valued at $300,000. She lives alone and relies on the aged pension. She receives $889 per fortnight and superannuation of $721 per month. She owns a motor vehicle, has about $8,000 in savings and has additional superannuation of about $170,000. [19] Mr Hards’ circumstances are these. He was a friend of the deceased. He lives in South Australia. He is on a disability support pension. He is to receive $20,000 under the will. I infer from the evidence that Mr Hards was a similar age to the deceased. [20] Because of the applicant’s chronic illnesses he has, and is likely in the future to have, only the most modest financial resources. He is now unable to work and has been unable to work for many years. He is therefore in need of provision. His health problems would also, I infer, have affected his ability to travel interstate from South Australia to Cairns, in Queensland, to visit his father in more recent years. The respondent, as residuary beneficiary, is in a better financial position than the -- 4 of 5 -- 5 applicant, notwithstanding that she is older. She has her own home and a superior income to the applicant. There is no other competitor for the deceased’s bounty. [21] It is clear that the applicant and his father did not enjoy a close relationship. I accept the submissions made by the applicant’s counsel that a fair assessment of what occurred in the years leading up to the deceased’s death was that they both did their best and at least made some effort to improve the relationship, although those attempts were not particularly successful. For example, between 2013 and 2015, the applicant travelled from South Australia to Cairns to visit the deceased three times. He stayed with him on each occasion. After that he wrote the deceased a series of letters. In 2016 and early 2017 they also exchanged text messages. They did not communicate again after January 2017. [22] The history of the deceased being estranged from the applicant due to circumstances arising from his separation from the applicant’s mother and the financial circumstances of the deceased when the applicant was a child, mean that their poor relationship cannot be ascribed to fault on the part of the applicant, necessarily, or even the deceased. Nonetheless, that poor relationship did not relieve the deceased of his moral duty to provide support to his son. [23] In the circumstances of this case I am satisfied that there is a basis for making the application. Only very modest provision was made for the applicant in the deceased’s will. The deceased failed to provide proper maintenance and support for the applicant. There is no doubt the applicant has a need and a moral claim. In the circumstances, the requirements of the Succession Act are made out and the jurisdiction of the court is clearly enlivened. [24] Although there is a discretion to be exercised by the court, once (as is the case here) the qualifying requirements for making an application under section 41 are satisfied and there is material indicating an apparent basis for the application and the order sought, then the compromise of the parties is a significant factor. [25] Following a mediation and with the assistance of legal advice, the parties have reached an agreement. The terms of the compromise are that the parties have agreed to vary the will to increase the gift to the applicant by an additional $100,000. So the will is to provide for a gift to the applicant of $120,000. The parties also agree that the estate should meet the applicant’s costs, fixed by agreement between them, at $35,000 inclusive of GST. The orders agreed provide that the applicant will receive more than the residuary beneficiary, who is the respondent. That is justifiable, given that the applicant has greater financial needs of support than the respondent. The orders, however, respect the deceased’s desire to give a gift to his sister and to the other beneficiary, Mr Hards. There is, therefore, no reason for the court not to act on the agreement reached by the parties and make the order applied for. [26] In addition, the relatively small value of the estate and the extent to which it is likely to be depleted by further incidents of legal costs if the matter is litigated further, are clearly relevant circumstances. [27] I am satisfied that the proposed orders to give effect to the compromise are, in all the circumstances, appropriate provisions for the proper maintenance and support of the applicant from the deceased’s estate. I will make orders in the terms of the draft order, signed by me, and placed with the papers. The only amendment I make is to amend the date of the order to 21 May 2019. -- 5 of 5 --