Christopher v McFarlane as executor of the Estate of Buss (Deceased) [2017] QDC 154

DISTRICT COURT OF QUEENSLAND CITATION: Christopher v McFarlane as executor of the Estate of Buss (Deceased) [2017] QDC 154 PARTIES: CAROL MARGARET EVELINE CHRISTOPHER (Applicant) v DALE RUTH McFARLANE AS EXECUTOR OF THE ESTATE OF MALCOLM CHARLES BUSS (DECEASED) (Respondent) FILE NO/S: 70 of 2014 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: Cairns DELIVERED ON: 16 May 2017 DELIVERED AT: Cairns HEARING DATE: 8 December 2016 JUDGE: Morzone QC DCJ ORDER: 1. Pursuant to s 41(8) of the Succession Act 1981 the application be heard and determined although a grant of probate has not been made. 2. Further provision be made for the proper maintenance and support of the applicant, Carol Margaret Eveline Christopher, from the estate of Malcolm Charles Buss (deceased) being one half of the estate of Malcolm Charles Buss, leaving the residual estate to be shared equally by the respondent beneficiaries. 3. I will hear further from the parties as to the terms of orders and any issue as to costs. CATCHWORDS: SUCCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – FORMER DEPEMNDANT SPOUSE - last will invalid regarding applicant due to divorce – small/moderate estate – whether dependant former wife or de-facto spouse of the deceased – beneficiaries are deceased -- 1 of 33 -- 2 adult children of former marriage - whether adequate provision – assessment. Legislation Succession Act 1981(Qld), ss 5AA, 33P, 41, 48, Acts Interpretation Act 1954 (Qld), s 32D Cases Anslow v Journeaux [2009] VSC 250 Blore v. Lang (1960) 104 CLR 124 Bosch v. Perpetual Trustee Co Ltd (1938) AC 463 Cf. PY v CY [2005] QCA 247 Clifford v Mayr [2010] NSWCA 6 Collett & Anor v Knox & Anor [2010] QSC 132 Dudic v Jakovljevic [2014] NSWSC 169 FO v. HAF [2006] QCA 555 Freeman & Ors v Jacques [2006] 1 Qd R 318 Golosky v Golosky [1993] NSWCA 111 Gray v Mather [2016] NSWSC 699 Green v. Holtom [2006] WASC Hibberson v George (1985) 12 Fam LR 725. Hills v Chalk & Ors [2008] QCA 159 Hobbs v. Russo [2005] QSC 201 Jonah v White [2011] FamCA 221 Kazama v Britton [2013] FamCA 4 Kowalski v Kowalski & Ors [2012] QCA 234 KQ v. HAE [2007] 2 Qd.R 32 Lohse v Lewis [2004] 2 Qd R 648 Luciano v Rosenblum (1985) 2 NSWLR 65 Manly v. The Public Trustee of Queensland [2008] QCA 198 Milillo v Konnecke [2009] NSWCA 109 NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894 O’Loughlin v O’Loughlin [2003] NSWCA 99 Perpetual Trustee Queensland Ltd v. Mayne [1992] QCA 417 Plunkett v. Bull (1915) 19 CLR 544 Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 Re Adamow (1989) 97 FLR 410 Re Cobb [1989] 1 Qd R 522 Re Gould [1994] QSC 216 Re Will of MacKenzie (unreported, S Ct (Qld) Richard v AXA Trustees Ltd [2000] VSC 341 S v B [2004] QCA 449 Serle v Walsh & Ors [2006] QSC 377 Singer v Berghouse (1994) 181 CLR 201 Spencer v. Burton [2015] QCA 104 Stewart v Stewart [2015] QSC 238 Sung v Malaxos [2015] NSWSC 186 Vigolo v Bostin (2005) 221 CLR 191 Weston v. Public Trustee (1986) NSWLR 407 White v Barron (1980) 144 CLR 431 -- 2 of 33 -- 3 Yeomans v Yeomans & Anor [2011] QSC 344 COUNSEL: J Trevino for the Applicant R Whiteford for the beneficiaries SOLICITORS: Morris Blackburn Lawyers for the Applicant Jeneve Frizzo Estate Law for the Respondent The Estate Lawyers for the beneficiaries [1] The applicant claims that she was in a de facto relationship with Malcolm Charles Buss and seeks the transfer of one half of her former matrimonial home as adequate provision from his estate. She already has the other half interest pursuant to an informal property settlement after their divorce. [2] The deceased’s surviving children, who are the beneficiaries under the deceased’s last will, oppose the application. The executor has taken a neutral position. [3] The evidence was adduced by affidavit and supplemented by oral testimony. The relevant facts are largely uncontroversial, and I find them as follows. Background [4] Malcolm Charles Buss (“the deceased”) was born in about 1943.1 [5] He had two children by his first marriage, Rebecca Ochsner, born 17 August 1974,2 and Stephen Peter Charles Buss, born 19 November 1975.3 They are the remaining beneficiaries under his last will. [6] The applicant and deceased met in 1982 and started dating in 1983.4 The deceased was a customs officer and the applicant was a salesperson.5 [7] The deceased separated from his first wife 1983 and divorced by 1985.6 His first wife assumed the primary care of the children and moved to Tasmania.7 After achieving a property settlement with his first wife,8 the deceased purchased a house at Alice Street, Rosewater in Adelaide.9 It is not clear whether the applicant had an interest in the house. [8] The applicant and the deceased started living together in the Rosewater property in 1985.10 From an early stage, the parties occupied separate bedrooms because of the deceased’s snoring.11 1 Death Certificate, Affidavit Christopher [2], Exhibit CMEC-2. 2 Affidavit Ochsner, para 6. 3 Affidavit Buss, para 5. 4 Affidavit Christopher filed 17 April 2014 at [23]. 5 Affidavit Christopher [2], para 26. 6 Affidavits Buss, para 13 & Ochsner [10], para 25. 7 Affidavit Buss, para 13. 8 Affidavit Christopher [2], para 25. 9 Affidavit Christopher [2], paras 25 & 26. 10 Affidavit Christopher [2], para 24. 11 Affidavit Christopher, [16], para 134(c). -- 3 of 33 -- 4 [9] The applicant’s son from a former relationship had moved to New Zealand to live.12 There is a dispute about the nature and extent of the contact between the deceased and his children. Suffice it to say that the deceased was not proactive in fostering an ongoing or close relationship with his children in their formative years.13 [10] In about 1994, the Rosewater property was sold and the applicant and the deceased bought a house in Brooklyn Park in Adelaide in joint names.14 [11] The applicant and the deceased married on 22 November 1995.15 [12] In 1996, the deceased was transferred to Cairns as a regional manager for the Australian Customs Service.16 The applicant worked in Cairns as a travel agent.17 They rented until August 1997, when they bought a house at in Whitfield, as joint tenants using the sale proceeds of the Adelaide house.18 In 1998, they bought (perhaps from the sale of Whitfield) and moved into a house in Kanimbla.19 There was a mortgage to the NAB over this property.20 [13] The applicant and the deceased did not have sexual relations after 1998.21 [14] The applicant ceased employment in 1998.22 The deceased retired from Customs in November 1998 to take up a position working as a customs officer for the Seychelles government.23 [15] The deceased made his last will on 27 January 1999, by which he bequeathed his estate to the applicant, but if she died before him, then the estate would go to his son Stephen, his daughter Rebecca and the applicant’s son Rhys in equal shares.24 Of course since they held the house as joint tenants, it was not the subject of their wills at that time. [16] The deceased ‘gave away’ Rebecca when she married during 1990.25 Rebecca had a daughter on 4 November 1996 and a son on 13 February 1999.26 [17] In early 1999 until April 2002 the deceased and the applicant lived in the Seychelles. There the deceased worked as a customs officer but the applicant did not work.27 12 Affidavit Christopher, [16], para 27. 13 Eg. Affidavits Buss [9], paras 13; Ochsner [10], paras 25, 26 & 37(h), & Christopher [16] paras 57, 58, 59, 62, 63, 140 & 152. 14 Affidavit Christopher [2], para 28. 15 Affidavit Christopher [2], Exhibit CMEC-4. 16 Affidavit Christopher [2], para 30. 17 Affidavit Christopher [16], para 35. 18 Affidavit Christopher [2], para 31. 19 Affidavit Christopher [2], para 32. 20 Affidavit Christopher [2], para 33. 21 Affidavit Christopher [16], para 134(a). 22 Affidavit Christopher [2], paras 18, 35. 23 Affidavit Christopher [16], para 39. 24 Affidavit Christopher [2], Exhibit CMEC-1. 25 Affidavit Ochsner, para 34. 26 Affidavit Ochsner, paras 7, 8. 27 Affidavit Christopher [2] paras 37, 39, 44. -- 4 of 33 -- 5 [18] The contact between the deceased and his children reduced further during 1996 to 2002. Again, it seems that the deceased was not proactive in fostering an ongoing or close relationship with his children before leaving to the Seychelles,28 and there was little or no contact during the 3 years the deceased was in the Seychelles.29 [19] When the applicant and the deceased returned from the Seychelles in April 2002, they resumed living in the Kanimbla property. They were not employed,30 and began hosting international students.31 [20] The applicant’s son died on 7 May 2002.32 Sometime between 2002 and early 2004, Stephen and Rebecca moved from Tasmania to the Gold Coast.33 [21] In late 2003, the deceased decided to work in China as an English teacher.34 To that end, he travelled to China and worked as an English teacher from 7 February 2004 on yearly employment contracts.35 He returned to Cairns at least once a year and resided in the Kanimbla property with the applicant.36 The applicant remained living in Cairns, but visited the deceased in China between 22 July 2004 and 30 August 2004.37 [22] The marriage was in difficulty by this time and on 21 February 2005 the applicant filed for divorce.38 They opened separate bank accounts.39 During the deceased’s further year in China he continued to correspond in terms of endearment, such as “Babe”.40 On 25 July 2005, the applicant discontinued the divorce proceedings in the hope they “would be able to work things out”.41 But they couldn’t, and the applicant again filed for divorce on 27 January 2006.42 [23] On 5 February 2006 the applicant and deceased executed enduring powers of attorney appointing each as the other’s attorney.43 The deceased again returned to China to work in 2006. [24] The divorce was granted on 6 May 2006.44 They were not legally represented. .And neither of them made new wills. [25] The applicant remained living in Cairns, but again visited the deceased in China between 26 July 2006 and 30 August 2006.45 At the end of the academic year in 28 Affidavits of Buss [9] para 14; Ochsner, para 37(i), & Christopher [16], paras 60-64 & 111. 29 Affidavit Christopher [16], para 103. 30 Affidavit Christopher [16], paras 44 & 46. 31 Affidavit Christopher [16], para 48. 32 Affidavit Christopher [16], para 16. 33 Affidavit Christopher [16], para 146. 34 Affidavit Christopher [16], para 58. 35 Affidavit Christopher [16], paras 60, 61 & 114. 36 Affidavit Christopher [16], para 86. 37 Affidavit Christopher [2], para 61. 38 Affidavit Christopher [2], para 66. 39 Affidavit Christopher [2], para 71. 40 Affidavit Christopher [2], Exhibit CMEC-27(p.69). 41 Affidavit Christopher [2], para 66. 42 Affidavit Christopher [2], para 67. 43 Affidavit Christopher [2], Exhibit CMEC-9. 44 Affidavit Christopher [2], para 67. 45 Affidavit Christopher [2], para 69. -- 5 of 33 -- 6 2006, the deceased returned to the Kanimbla property until his new contract began in China.46 [26] In the meantime, the parties never made any formal property settlement and not much changed financially. The deceased’s income and the international student board money continued to be paid into a joint bank account;47 the home expenses were paid by the deceased’s credit card,48 which was then paid off in full at the end of each month from the joint account.49 [27] The applicant and the deceased remained on reasonably good terms.50 The deceased continued to correspond in terms of endearment such as “Dearest Carol”,51 and he also referred to the applicant as his “wife” which she was “not always happy about”.52 Indeed, on 12 February 2007, the applicant changed her surname from “Buss” to her maiden name “Christopher”.53 [28] The applicant describes several informal agreements about finances and maintenance provided by the deceased since their divorce as follows:54 “(a) We agreed that the joint tenancy should be severed: I had previously worked at the Adelaide Bank in the credit department, and was aware of the difference. I drafted and lodged the severance of the joint tenancy. Copies of the registration confirmation regarding the severance dated 26 March 2007 … (b) We reached a written agreement about our house, a copy of which is exhibit CMEC-8 of this my affidavit (marked as page 14). (c) Malcolm never agreed to sell the house at McFarlane Drive, despite many conversations about this over the years. He couldn’t buy my share either. I had no choice but to stay there. (d) We discussed that I would need to apply for a Centrelink benefit – I couldn’t take money from him, but I couldn’t afford to maintain the house. He wanted to retain the house, so he agreed to keep paying for the maintenance on the house. (e) We had an agreement where: (i) he paid for the maintenance issues – such as rates, insurances, painting the house, upkeep and registration of the car and motor scooter, the installation of a solar system and that type of thing; 46 Affidavit Christopher [2], para 80. 47 Affidavit Christopher [2], para 73(f). 48 Affidavit Christopher [2], para 135(d), Exhibit CMEC-15, (p.53). 49 Affidavit Christopher [2], para 73(f). 50 Affidavit Christopher [2], paras 86-89. 51 Affidavit Christopher [2], Exhibit CMEC-6. 52 Affidavit Christopher [2], para 108. 53 Affidavit Christopher [2], para 83. 54 Affidavit Christopher [2], para 73. -- 6 of 33 -- 7 (ii) I did the actual maintenance, including the mowing and garden maintenance, (4-6 hours per week), cleaning, water blasting the drive and paths, and so on. I learned to do lots of general maintenance. (iii) I learned to do lots of things myself to save money – pop rivets so I could fix screen doors, replace locks. I painted the interior of the house and flat myself. (f) We continued to run our finances together through our Westpac credit card, which would then be paid in full each month by our NAB account that Malcolm’s income went in to. The income from the foreign students living in our house, that I took care of, also went into the NAB account. (g) Once I started to receive the Widow’s Allowance, that was paid into an account I opened for that purpose, firstly at the National Australia Bank and then moved to Suncorp.” [29] The applicant also deposes that:55 “(a) Malcolm and I never conducted any formal property settlement after our divorce, other than the severance of the joint tenancy. (b) As such, all of our finances remained the same as they had previously, up until the time of Malcolm’s death. (c) All of our insurances continued in joint names, including: (iv) House insurance with RACQ, a copy of which is exhibit CMEC-19 of this my affidavit (marked as page 57); (v) Car insurance with APIA, a copy of which is exhibit CMEC- 20 of this my affidavit (marked as page 58); (vi) Scooter insurance with APIA, a copy of which is exhibit CMEC-21 of this my affidavit (marked as page 59); (vii) Health insurance with HCF, a copy of which is exhibit CMEC-22 of this my affidavit (marked as page 60). (d) Our bank accounts also continued in the same way, so that: (viii) Malcolm’s income from his ComSuper pension was paid in to the NAB line of credit account; (ix) All of our expenses were paid on credit cards, as follows: (1) Westpac Visa 4564 7270 8058 3295 (in the name of Malcolm Charles Buss); and 55 Affidavit Christopher [16], para 73. -- 7 of 33 -- 8 (2) Westpac AMEX 3778 500417 80142 (in the name of Malcolm Charles Buss). (x) Once per month we would completely pay off the credit cards from the funds held with the NAB account. (xi) Our utilities continued in joint names including for example our Ergon account which is exhibit CMEC-23 of this my affidavit (marked as page 61). (e) The only thing that changed significantly was that when it became clear that we would divorce, I applied for and received a Widow Allowance (as I genuinely believed we would going our separate ways). I continued to receive that pension up until Malcolm’s death. (f) Because I received so little income from the Widow’s Allowance, Malcolm’s superannuation pension was essential for paying the costs of maintaining the McFarlane Drive house, particularly the rates, insurances and general maintenance. (g) As we wanted to become debt free I also cashed in almost all of my superannuation lump sum with Asgard in Perth, WA, in the amount of $23,500 which was paid in to the joint NAB account on 31 August 2011.” [30] The written agreement severing the joint tenancy of the Kanimbla house was signed on 21 February 2007 in the following terms: “Joint Owners’ Agreement regarding 179 McFarlane Drive, Kanimbla, QLD 4870 We, Malcolm Charles BUSS and Carol Margaret Eveline BUSS, being the joint owners of the house and land at 179 McFarlane Drive, Kanimbla, QLD 4870 (Lot 69/SP101074 County of Nares, Parish of Cairns. Title Ref 50209292) do hereby enter into the following agreement with regards to the disposal of this property following the death of either of us prior to the other. This mutual agreement is to ensure that the death of either owner does not cause hardship to the survivor if the property is their principle place of residence at that time. 1. The ownership of this property is that of Tenants in Common with the shares being 50% each. 2. In the case of the death of either owner the surviving owner shall be permitted to reside in the property for up to five years before putting the property on the market for sale. 3. We agree that the property will be retained only as the principal place of residence of the surviving owner and will not be retained as an investment property (in other words, it will not be tenanted by any other person than the surviving owner and any immediate family who may be living with them at that time). -- 8 of 33 -- 9 4. We both agree to maintain the property to the highest standard and to take all available measures to achieve the best possible price for the property for the benefit of both of us. 5. The 50% share of the proceeds from the sale of the house, after any encumbrances have been discharged, will immediately be paid to the estate of the deceased owner. Signed this day 21st Feb 2007” [31] It was around this time in late February 2007 that the deceased was diagnosed with cancer of the tongue. He underwent surgery and radiotherapy in Adelaide.56 In May 2007, he returned from Adelaide to the Kanimbla property to recuperate.57 [32] He returned to China to work in August 2007.58 He probably returned home at the end of the 2007 academic year before returning to China to work again in early 2008. The applicant again visited the deceased in China between 4 July 2008 and 9 August 2008.59 Photographs taken of them at this time reveal them relating in a fond and affectionate manner.60 In the usual way the deceased returned to the Kanimbla property in February 2009 before returning to China for work.61 [33] In July 2009, the deceased returned to Cairns and underwent a colonoscopy which revealed colorectal cancer. He underwent surgery and radiotherapy in Brisbane. The applicant stayed with him in Brisbane for one week after the surgery. The deceased remained in Brisbane for treatment for about four months.62 During this time he visited his daughter, Rebecca, on the Gold Coast.63 [34] There is a dispute about the extent of the contact between the deceased and his children between 2004 and 2013. [35] Stephen says that he “constantly” communicated with the deceased using MSN messenger and Skype, especially on occasions such as Father’s Day and birthdays.64 [36] Rebecca says that after taking up the teaching job in China, the deceased visited her on the Gold Coast once a year.65 She says that although “family milestones have never been overly important within my family”, the deceased often attended her son’s birthday events in February.66 She says that when the deceased visited, she “would always take a day or two off work to spend time with him.”67 She admits that she and the deceased “did not contact each other much” unless there was “something of particular interest to convey”68 when they would email or text each 56 Affidavit Christopher [2], para 81. 57 Affidavit Christopher [2], paras 80, 81. 58 Affidavit Christopher [2], para 82. 59 Affidavit Christopher [2], para 92. 60 Affidavit Christopher [2], Exhibit CMEC-11. 61 Affidavit Christopher [2], para 96. 62 Affidavit Christopher [2], para 97-99. 63 Affidavit Christopher [2], para 98. 64 Affidavit Buss, paras 15 & 19. 65 Affidavit Ochsner, para 29. 66 Affidavit Ochsner, para 35. 67 Affidavit Ochsner, para 31. 68 Affidavit Ochsner, para 29. -- 9 of 33 -- 10 other.69 She says she would have liked to have visited the deceased more often in Cairns, but as she had four children by 2005, travelling to Cairns with her family was too expensive.70 [37] The applicant denies there was any or any significant contact between Stephen and the deceased.71 She also says there also was “little contact” between the deceased and Rebecca, although she concedes that there was “warmth” between them and that they got “on well when they were in contact or together”.72 She also admits the deceased did not take the initiative to call his children and did not write to them or send them gifts.73 She says: “… after Malcolm divorced his first wife, Rachel Moses, apart from two trips to Tasmania to attend Rebecca’s wedding and to see Rebecca’s family after the birth of her eldest daughter, Malcolm never intentionally travelled to see his children or grandchildren for the purpose of celebrating their birthdays, or any other celebration, nor did Malcolm ‘try to attend’ whilst living in Australia.”74 [38] Of course, the applicant was not present for most of the time the deceased was living in China, and her remarks ought be limited to her direct knowledge minus the cynicism. I prefer the evidence of the children in this regard. [39] The deceased returned to Cairns in about October 2009.75 The applicant identifies this time, and the deceased’s apology to her for his previous behaviour, was a “turning point” in the relationship.76 The relationship improved after this and they were in regular (increasing to daily) contact after the deceased returned to China on 18 February 2010.77 As he has always done, in his communications with her, the deceased continued to refer to the applicant in terms of endearment.78 [40] When the deceased returned to Cairns between 29 June and 24 July 2010,79 the applicant and the deceased executed fresh enduring powers of attorney provoked by the applicant’s continued use of her maiden name “Christopher”.80 [41] The deceased returned to China to teach in 2011. The applicant visited him in China between 15 July 2011 and 27 August 2011.81 On 13 August 2011, the applicant cashed in most of her superannuation ($23,500.00) and used this to reduce the mortgage debt over the Kanimbla property.82 69 Affidavit Ochsner, para 35. 70 Affidavit Ochsner, para 33. 71 Affidavit Christopher [2], paras 78ff. 72 Affidavit Christopher [2], para 111. 73 Affidavit Christopher [2], paras 104, 105. 74 Affidavit Christopher [2], para 93. 75 Affidavit Christopher [2], para 99. 76 Affidavit Christopher [2], para 110. 77 Affidavit Christopher [2], paras 93, 94, 95, 102; affidavit CME Christopher [16], paras 45-50. 78 See e.g. Affidavit Christopher [2], Exhibit CMEC-27 (pp.71, 100). 79 Affidavit Christopher [2], para 103. 80 Affidavit Christopher [2], para 84; Exhibit CMEC-10. 81 Affidavit Christopher [2], para 104. 82 Affidavit Christopher [2], para 135(g). -- 10 of 33 -- 11 [42] The deceased returned to Australia between 12 January and 14 February 2013.83 A photograph taken during this time shows the applicant and the deceased continuing to relate on friendly terms.84 [43] On 29 May 2013, the deceased wrote to Westpac notifying them that applicant had changed her surname from “Buss” to “Christopher” and she had continuing authority to operate the credit cards under either name.85 [44] Rebecca visited the deceased in China between 30 June and 12 July 2013 to celebrate the deceased’s 70th birthday and her 40th birthday. They had a “wonderful trip” together.86 [45] The applicant recalls that the parties often discussed re-marrying “over the last 1 or 2 years” of the deceased’s life.87 [46] The deceased was due to return to Australia on 20 July 2013. The applicant explains: 88 “We had discussed, and agreed, that upon Malcolm’s return from China on this trip, we would attend a course about communicating with each other (it was called ‘Strong Conversations’) and would re-marry.” [47] But the deceased died in China on the eve of his departure on 19 July 2013.89 He was then 70 years old. Last Will [48] It is undisputed that the deceased made his last will on 27 January 1999. The will:90 (a) Appointed Dale Pett and Robert Weymouth as executors; (b) Bequeathed the whole estate to the applicant if she survived him; (c) If the applicant predeceased him, the whole estate would go to his son Stephen, his daughter Rebecca and the applicant’s son Rhys in equal shares. [49] Since the last will pre-dated the divorce, it was rendered ineffective vis-à-vis the applicant by operation of s 15(1)(a) of the Act. Further, since the applicant’s son, Rhys, died in in 2002,91 Stephen and Rebecca stand to take the entirety of the deceased’s estate in equal shares.92 And since the house was held as tenants-in- common, the deceased’s interest was subject of the will. 83 Affidavit Christopher [2], para118. 84 Affidavit Christopher [2], Exhibit CMEC-14. 85 Affidavit Christopher [2], Exhibit CMEC-15. 86 Affidavit Christopher [2], para 152; Affidavit Ochsner, para 37(j). 87 Affidavit Christopher [2], para 113. 88 Affidavit Christopher [2], para 116. 89 Affidavit Christopher [2], Exhibit CMEC-2. 90 Affidavit Christopher [2], Exhibit CMEC-1. 91 Affidavit Christopher [2], para 16. 92 Succession Act 1981, s 33P. -- 11 of 33 -- 12 [50] Mr Weymouth has renounced his executorship, leaving Ms McFarlane (now Dale McFarlane), as the sole executor and trustee.93 Ms McFarlane is the applicant’s sister.94 No application for probate of the will has been made.95 Estate [51] The deceased’s estate is of a very modest size. [52] According to the list of estate assets and liabilities prepared on behalf of the executor,96 and the supplemented material provided by the applicant, the estate is comprised of the following: Assets: One half share of the Kanimbla property $250,000.00 Personal chattels and household effects Minimal Liabilities National Australia Bank Homeside Lending Account 084-069 685777903 -$27,581.98 Billed (but unpaid) invoice from Jeneve Frizzo Estate Law -$3,740 Unbilled work by Jeneve Frizzo Estate Law -$3,000 Further costs of administration estimated by JFEL as at 6.12.16 at $2,000 - $5,000 (adopt average) -$3,500 TOTAL $212,178.02 [53] The mortgage debt over the property at the date of death was $6,117.70.97 However, since the deceased’s death, the applicant has drawn down on the mortgage. The amount now outstanding is $112,051.00.98 The applicant says the $94,910.18 drawn down was used as follows:99 Upkeep and maintenance $32,317.64 Applicant’s legal fees $59,720.34 Payments to executor’s solicitors to prevent sale of house $2,872.10 [54] The applicant contends that the estate’s share of the current mortgage debt is $27,581.98 including 50% of the costs attributed to “upkeep and maintenance”.100 93 Affidavit McFarlane, para 3. 94 Affidavit Christopher [2], para 8. 95 Affidavit Christopher [2], para 9; Affidavit McFarlane para 6. 96 Affidavit McFarlane [17]. 97 Affidavit Christopher [16] para 14. 98 Affidavit Christopher [23] para 18. 99 Affidavit Christopher [23] para 20. 100 Affidavit Christopher [23] para 20(a). -- 12 of 33 -- 13 These costs were the subject of challenge in cross-examination of the applicant, which cast doubt on the reliability of the applicant’s spread sheet and apportionment calculations.101 Although these expenses are consistent with the ongoing support and maintenance provided by the deceased, it becomes unnecessary to determine the matter since the respondent beneficiaries concede the point for the purposes of the proceeding.102 Applicant’s Standing [55] The applicant claims to have standing to apply for further provision from the deceased’s estate as de facto spouse, or alternatively, as an dependant former wife, within the meaning of s 5AA of the Act. [56] Section 5AA provides: “5AA Who is a person’s spouse (1) Generally, a person’s spouse is the person’s– (a) husband or wife; or (b) de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA. (2) However, a person is a spouse of a deceased person only if, on the deceased’s death- (a) the person was the deceased’s husband or wife; or (b) the following applied to the person- (i) the person was the deceased’s de facto partner, as defined in the AIA, section 32DA; (ii) the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or (c) for part 4, the person was- (i) a person mentioned in paragraph (a) or (b); or (ii) the deceased’s dependant former husband or wife. (3) Subsection (2) applies- (a) despite the AIA, section 32DA(6) and section 36, definition spouse; and (b) whether the deceased died testate or intestate.” 101 Affidavit Christopher [23] para 20. 102 Beneficiaries’ submissions, para 68. -- 13 of 33 -- 14 (4) In this section— dependent former husband or wife or civil partner, of a deceased person, means— (a) a person who— (i) was divorced by or from the deceased at any time, whether before or after the commencement of this Act; and (ii) had not remarried or entered into a civil partnership with another person before the deceased’s death; and (iii) was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased; or (b) a person who— (i) was in a civil partnership with the deceased that was terminated under the Civil Partnerships Act 2011, section 18; and (ii) had not married or entered into another civil partnership before the deceased’s death; and (iii) was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased. [57] The applicant contends that, having regard to the nature and quality of the relationship between the applicant and the deceased, she was the deceased’s de facto partner for a continuous period of at least 2 years ending on the deceased’s death in accordance with ss 5AA(1)(b) and (2)(b) of the Act. [58] This is disputed by the respondent beneficiaries, but they concede that the applicant has standing as a “dependent former wife” of the deceased in accordance with s.5AA(2)(c)(ii) of the Act. Dependant Former Wife [59] Here ss 5AA(2)(c)(ii) and 5AA(4)(a)(iii) invoke consideration of whether the applicant was “on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.” [60] “Maintenance” is not defined by the Act. The term is defined in the Concise Australian Legal Dictionary as the “Provision of the means of existence or continuation …”.103 However, the term has also been the subject of judicial interpretation. It received a narrow construction in New South Wales with the court finding that the term refers to a provision for the supply of the necessaries of life.104 103 Concise Australian Legal Dictionary, Lexis Nexis, 5ed, p.391. 104 Dudic v Jakovljevic [2014] NSWSC 169 at [53]. -- 14 of 33 -- 15 However, members of the High Court considered that the term could imply provision over and above “a mere sufficiency of means upon which to live”.105 No regular periodicity of payment is required.106 [61] In Lohse v Lewis,107 Mullins J considered the matter and reviewed a number of relevant authorities, including the decision of Kneipp J in Re Cobb,108 and the unreported decision of Ryan J in Re Will of MacKenzie.109 [62] In respect of Re Cobb her Honour observed:110 “… The parties in that matter until Mr Cobb’s death had both worked, earning substantially the same amounts of income and had come to an agreement as to the dispositions of their respective incomes with the applicant in that matter spending the whole of her income on groceries, electricity, the telephone and her personal expenses and Mr Cobb paying the rent and for the maintenance of the premises in which they lived. Mr Cobb lived very frugally and after the agreed payments out of his income he had balances which by agreement between the parties were banked in his name, but were intended in due course to be used for the establishment of a jointly owned home. Kneipp J stated at 523: “However, I do not think that it is necessary that the provision of support or maintenance is necessarily confined to the provision of support or services or the like. It seems to me that if savings are being accumulated for the benefit of two parties, and if the savings come out of the income of one party, there is support or maintenance being provided to the other if the moneys are to be used partly or wholly for the benefit of that other in the event that the relevant plans come to fruition. In the present case, having regard to the agreement between the parties as to the dispositions of their respective incomes, it seems to me to be at least arguable that the applicant might have claimed a proportion of the moneys which had been invested by the deceased in accordance with the agreement between them. In the result, it seems to me that one should take an overall view of the situation, and in these circumstances I think that one can appropriately take the view that each was contributing to the support of the other as a result of their living together in a household to whose finances both made contributions. I therefore find, although I must confess I have found the matter to be one of considerable difficulty, that the applicant was a dependant of the deceased.” [63] In respect of Re Will of MacKenzie her Honour said:111 “In Re Will of MacKenzie (unreported, S Ct (Qld), Ryan J, 27 November 1992 the parties lived in a house which was owned by them as tenants in common in equal shares for 9 years until Mr MacKenzie’s death. Mrs 105 Vigolo v Bostin (2005) 221 CLR 191 at 228 per Callinan and Heydon JJ. 106 Re Gould [1994] QSC 216. 107 Lohse v Lewis [2004] 2 Qd R 648. 108 Re Cobb [1989] 1 Qd R 522. 109 Re Will of MacKenzie (unreported, S Ct (Qld), Ryan J, 27 November 1992. 110 Lohse v Lewis [2004] 2 Qd R 648 at [87] 111 Lohse v Lewis [2004] 2 Qd R 648 at [89] -- 15 of 33 -- 16 Hayes was in receipt of a social security benefit for about 5 years prior to Mr MacKenzie’s death, but it was found that she used that for gambling purposes and the living expenses of the household were being met by Mr MacKenzie. Ryan J concluded that Mrs Hayes was being substantially maintained by Mr MacKenzie on the basis that: “He provided a substantial part of the resources that went into the maintenance of their life together.” [64] In this case, the deceased’s pension that provided the most significant resource contributing to the maintenance of the couples’ lifestyle, and continued during the period in which their relationship breakdown and up until the time of the deceased’s death. The resource funded rates, insurances, house painting, car registration, and the like.112 [65] It seems to me, and it is accepted by the beneficiaries, that applicant was “receiving maintenance” from the deceased when he died, and therefore, she has standing to make this proceeding as a dependent former wife of the deceased. [66] However, the applicant urges the court to find that she was the de facto wife of the deceased. De Facto Partner [67] The applicant contends that she was the de facto wife of the deceased for at least two years before he died on 20 July 2013.113 Such a finding would galvanise her claim for further provision and the considerations regarding widows. [68] In Luciano v Rosenblum,114 Powell J said: “It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of the testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforseen contingencies.” [69] Consideration of this “broad general rule” must not undermine the two stage approach as outlined and explained below, and should not be used to give primacy to a widow’s claim regardless of the particular circumstances of the case at hand,115 but as Ipp JA observed in Bladwell v Davis [2004] NSWCA 170 at [2]: 112 Affidavit Christopher [2], para 73(e). 113 Succession Act 1981, s 5AA(2)(b). 114 Luciano v Rosenblum (1985) 2 NSWLR 65 at 69. See also the observations of Kirby P in Golosky v Golosky [1993] NSWCA 111 and O’Loughlin v O’Loughlin [2003] NSWCA 99 where this “broad general rule” met with the approval of the New South Wales Court of Appeal. The principle is equally applicable to the position of a person who occupies the position of de facto wife: Clifford v Mayr [2010] NSWCA 6 at [144]. 115 Yeomans v Yeomans & Anor [2011] QSC 344 at [42] –[43]; Serle v Walsh & Ors [2006] QSC 377 at [46] to [53]; Manly v. The Public Trustee of Queensland [2008] QCA 198 at [38] per Daubney J refering to Young CJ in Eq in Marshall & Carruthers. -- 16 of 33 -- 17 “[W]here competing factors are more or less in equilibrium, the fact that one party is the elderly widow of the testator, is permanently unable to increase her income, and is never likely to be better off financially, while the other parties are materially younger and have the capacity to earn more or otherwise improve their financial position in the future, will ordinarily result in the needs of the widow being given primacy. That is simply because, in such circumstances, the widow will have no hope of improving herself economically, whereas that would not be the position of the others. In that event, the need of the widow would be greater than the others.” [70] A circumstance of significant relevance is the length of the relationship. In Collett & Anor v Knox & Anor,116 McMeekin J observed in respect of an applicant widower: “I envisage that it would be a very rare case where the first obligation of a spouse of 20 or 30 years is not to ensure that their partner is provided with a home, if able to do so.” [71] In Gray v Mather,117 Hallen J noted: “In this case, the de facto relationship of the deceased and the Defendant spanned 26 years (and perhaps longer). It was, as was accepted by the Plaintiff, a very long relationship. In the circumstances, as the deceased recognised, and as he explained to the Plaintiff, his obligation to her, to the extent to which his assets permitted him to do so, was to ensure that she was secure in the home in which they lived together, to ensure that she had an income sufficient to permit her to live in the style to which she was accustomed, and to provide her with a fund to enable her to meet any unforseen contingencies.” [72] His Honour also noted at [96] that concern as to the capacity of a widow to maintain herself independently and autonomously also have significant bearing upon what provision ought to be made.118 De facto Partner [73] The critical question is whether the applicant and the deceased were in a de facto spouse for at least two years before he died on 20 July 2013. The focus is on s 5AA(2)(b) of the Act and the meaning of ‘de-facto partner’ defined in the Acts Interpretation Act 1954 (Qld) as follows: “32D References to persons generally (1) In an Act a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family. 116 Collett & Anor v Knox & Anor [2010] QSC 132 at [133] 117 Gray v Mather [2016] NSWSC 699 at [95] 118 citing Richard v AXA Trustees Ltd [2000] VSC 341 and Anslow v Journeaux [2009] VSC 250 at [43] -- 17 of 33 -- 18 (2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances – (a) the nature and extent of their common residence; (b) the length of their relationship; (c) whether or not a sexual relationship exists or existed; (d) the degree of financial dependence or interdependence, and any arrangement for financial support; (e) their ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life, including the care and support of each other; (g) the care and support of children; (h) the performance of household tasks; (i) the reputation and public aspects of their relationship. (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons are living together as a couple on a genuine domestic basis. (4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence. …” [74] It is well established that, in determining de facto status, none of these criteria is of decisive significance.119 They must be weighed up with other factors or circumstances that the court considers relevant.120 Essentially, the court must be satisfied that the parties have so merged their lives that they were for all practical purposes living together as a married couple.121 [75] As the applicant is making a claim against a person who has died and cannot give his side of the story, the court must scrutinize her case very carefully and with suspicion to see whether it is true or untrue.122 As was said in Weston v. Public Trustee:123 “… because only the deceased and the applicant really know exactly what went on between them … the Court must be very careful to make sure it is not misled by over-enthusiastic evidence from the only party alive who can still give evidence as to the exact relationship.” The nature and extent of the common residence 119 FO v. HAF [2006] QCA 555 at [24]. 120 Spencer v. Burton [2015] QCA 104 at [123]. 121 KQ v. HAE [2007] 2 QdR 32 at [19]. 122 Plunkett v. Bull (1915) 19 CLR 544 at 548-9. 123 Weston v. Public Trustee (1986) NSWLR 407 at 409. -- 18 of 33 -- 19 [76] The parties did not have common residences during periods of the deceased’s work in China, except when the applicant visited him on holidays and the deceased was at home. [77] Even so, each case will depend upon its own circumstances, and physical separation will not preclude a finding that they were living together on a genuine domestic basis during this time.124 In this regard, I am conscious too of the comments of Dutney J in S v B125about the fragility of a de facto relationship unlike a marriage galvanised by law. He said at para [33]: “De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: “There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.” [78] After the deceased decided to work in China as an English teacher, he travelled between the two countries from 7 February 2004 between yearly employment contracts.126 The parties maintained separate residences for the most part. That is, the deceased resided in China for the academic year while the applicant remained in Cairns. The parties kept in frequent and regular contact during these periods of separation. This escalated in frequency and quality over time. The parties shared a common residence when the applicant visited the deceased in China, and when the deceased returned “home” to the Kanimbla property with the applicant.127 The length of the relationship 124 Cf. PY v CY [2005] QCA 247; Jonah & White [2011] FamCA 221; Kazama & Britton [2013] FamCA 4; NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894. 125 S v B [2004] QCA 449 at [33]. 126 Affidavit Christopher [16], paras 60, 61 & 114. 127 Affidavits Christopher [2] 132](b); Hayton, para 6; Kemp para 3. -- 19 of 33 -- 20 [79] The applicant and deceased met in 1982, started dating in 1983 started living together in 1985 and married in 1995. The applicant and defendant were divorced on 6 May 2006 pursuant to the applicant’s application filed 27 January 2006.128. [80] The pre-requisite for any divorce is that 'the marriage has broken down irretrievably'.129 The only way this can be established is to satisfy the court 'that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution'.130 [81] Therefore, the parties’ divorce must have been predicated on an irretrievable breakdown from at least January 2005. The applicant concedes that from 2005 until late 2009 or early 2010, she and the deceased “were committed to living separate lives”.131 I accept that neither the applicant nor the deceased pursued another romantic relationship. [82] Generally, in my view, many aspects of the relationship between the deceased and the applicant were present before and after their divorce. Despite periods of estrangement, disillusionment, and culminating in an irretrievable breakdown; they continued financial arrangements, the deceased continued to support the applicant, photographs depicted interpersonal contentment, they continued living disparate lives in two countries but holidayed and spent time at their home together, they owned that home together, and the applicant provided care and support during the deceased’s cancer treatment. [83] I have already remarked about the parties’ separate lives across two countries for the deceased’s work, and how the parties spent time together on holidays, at home and electronic communication. Significantly, the applicant described the evolvement of communication between herself and the deceased this way:132 “86. Because I had to stay in the house, Malcolm and I had to have a relationship of some sort. Also, I could not stop him staying in the house that he co-owned when he returned from China each year, or when he was recovering from treatments for cancers. 87. I decided (and I think Malcolm agreed) that we could have a terrible relationship, or we could do our best to make it work, even though we were divorced. 88. The first few years were difficult, and at times we would maybe only contact each other every 2-3 weeks while Malcolm was in China. However, we were always polite and respectful to each other. 89. However, gradually our relationship improved, and communication became far more frequent. 128 Affidavit Christopher [2], paras 66 & 67. 129 Family Law Act 1975 (Cth), s 48(1). 130 Family Law Act 1975 (Cth), s 48(2). 131 Affidavit Christopher [2], para 133(b) 132 Affidavit Christopher [2], para 86-91 but ignoring the inadmissible content. -- 20 of 33 -- 21 90. Malcolm changed a lot over the last four or five years of his life. He became far more considerate, and more mindful. 91. We had many, many conversations about our relationship. He admitted to me that he had always confused arrogance with confidence. He said he had been proud of his arrogance. In 2009 he apologised to me for the way that he had treated me prior to our divorce. He had never previously apologised to me in arguments or the like.” [84] The applicant cannot say with certainty at what point a de facto relationship commenced.133 At best, she characterises the 2009 apology as a “turning point” to mark the end of her separation from the deceased as follows:134 “107. Over the last few years, Malcolm and I were in touch on a daily basis, with the odd exception. As such, I’ve always known what his movements were, as we were talking so regularly. We discussed everything. I even know all his passwords. I enjoyed talking with Mal more than anybody else. 108. Malcolm never saw us as divorced; he always referred to me as his wife, including to other people. I was not always happy about that. 109. Throughout our separation/divorce he would often talk to me about getting back together. At first, I was very uncomfortable even at the suggestion. I didn’t want to go back to the place that we had been in. For several years I couldn’t see us getting back together. 110. The turning point for me was when Malcolm apologised to me in 2009. He was in Cairns recovering from the cancer operation. We were sitting at the dining table in the McFarlane Drive house talking about our relationship. I can be certain of when he apologised because it was around the time he was baptised in water in our neighbour’s pool. 111. I had to see the change in him; I didn’t just want talk. I had to feel comfortable being with him. 112. I finally got to the stage where I saw consistency in his life. I saw that he had changed – people commented about it. A lady we are friends with who had previously told me he was “the most arrogant person she’d met” said to me that she was amazed at the change in him. 113. Over the last 1 or 2 years of Malcolm’s life Malcolm and I often discussed the prospect of remarrying – both on Skype and when he was home. 114. He told me on many occasions that was his deepest wish – he said he had always loved me, that he had never seen me as anything but his 133 Affidavit Christopher [2]. 134 Affidavit Christopher [2], para 107-117 but ignoring the inadmissible parts, eg. “Malcolm never saw us as divorced”. -- 21 of 33 -- 22 wife, that he had never been unfaithful to me and he only wanted to spend the rest of his life with me. [85] At least 12 months of the deceased death, it seem that the parties spent more time together at home, on holidays and in periods of the deceased’s respite. The deceased returned to work and the parties continued to live separate lives across two countries but the frequency and nature of their communication and their interpersonal relationship improved well before the deceased’s death. It seems to me that their relationship had reached a stage of courtship with a commitment to remarry. However, I am unable to discern clear indicia of the commencement and continuance of a de facto situation. Whether or not a sexual relationship existed [86] The applicant deposes that she and the deceased were not sexually intimate from 1998 onwards.135 This was not a factor contributing to their separation and divorce. The deceased had suffered from major heart troubles and after that he gradually lost interest in any sexual relationship. [87] It seems to me that the lack of sexual intimacy in the parties’ relationship does not preclude a finding of a de facto relationship as contended by the applicant. The degree of financial dependence or interdependence, and any arrangement for financial support [88] The applicant paid $23,500.00 of her superannuation to reduce the mortgage over the Kanimbla property in August 2011. The parties continued to hold the property as tenants-in-common in equal shares. The applicant reverted to her maiden name from 2007. This change provoked the change of the parties’ enduring powers of attorney in mid 2010 and the need assure the applicant’s continuing authority to operate the bank account in her maiden name in May 2013. [89] The applicant also continued to draw a single person’s Centrelink pension.136 The fact that the applicant received the widow’s pension is not fatal to a favourable finding in respect of the existence of a de facto relationship.137 [90] Otherwise, not much changed financially between after the applicant ceased work from early 1999. The deceased’s income and the international boarding money continued to be paid into a joint bank account; the home expenses were paid by the deceased’s credit card,138 which was in turn paid by the joint account. [91] I have already found that the deceased substantially maintained the applicant as his dependant former wife. The ownership, use and acquisition of property [92] After their divorce in 2006, the parties agreed to change sever their joint tenancy in the Kanimbla property. Neither party received legal advice in making their wills or 135 Affidavit Christopher [2], para 134. 136 Affidavit Christopher [16], para 12.4. 137 Cf Summers v Garland [2006] QSC 085 at [50]. 138 Affidavit Christopher [2], para 135(d), Exhibit CMEC-15, (p.53). -- 22 of 33 -- 23 in respect of the severance of the joint tenancy and the making of the agreement about the house.139 It seems to me that the applicant “was aware of the difference” and she lodged the relevant documents to change the holding to tenants-in-common in equal shares effective from 20 February 2007.140 [93] They continued to hold the property in this way up until the deceased’s death. Otherwise, their use and acquisition of goods and chattels continued unchanged throughout the period. The degree of mutual commitment to a shared life, including the care and support or each other [94] The applicant argues that from 2009 onward the parties’ commitment was again strong, and clearly strengthened over time. During 2009 the applicant provided significant care and support for the deceased whilst he received treatment in Brisbane for colorectal cancer in Brisbane and in Cairns before he returned to his work in China on 18 February 2010.141 Throughout the deceased’s period away in China, the applicant and deceased enjoyed very regular communication. The frequency, nature and extent of their communication were elevated.142 They planned to re-marry on his return from China in 2013.143 However, the applicant harboured reservations about strengthening their communications skills. She deposed that:144 115. We agreed to get the tools we needed to communicate well and avoid any such problems in the future. 116. We had discussed, and agreed, that upon Malcolm’s return from China on this trip, we would attend a course about communicating with each other (it was called “Strong Conversations”) and would remarry. 117. Unfortunately, Malcolm died the day before he was due to return home.” [95] In George v. Hibberson,145 the parties had been in a de facto relationship, had separated and one party alleged there had been a resumption of the relationship. Cohen J said at 75,609: “It must be a question of fact whether on separation one party intended that there should be an end to the relationship or whether the parties or either of them acted in such a way as would indicate that that intention existed. Once that intention or indication is found to exist then … the relationship will only be renewed when the parties actually returned and lived together. 139 Affidavit Christopher [2], paras [41]; [72] and [129]. 140 Affidavit Christopher [2], para 73(a); Exhibit CMEC-7. 141 Affidavit Christopher [2], paras 96 to 102. 142 For example, Exhibit 1 – the Skype logs. 143 Affidavit Christopher [2], para 113 to 114. 144 Affidavit Christopher [16] at paras 107-117 (except inadmissible parts, eg. “Malcolm never saw us as divorced”). 145 George v. Hibberson (1987) DFC 95-054 -- 23 of 33 -- 24 It would not be sufficient merely to form an intention to enter into an agreement to resume life together.”146 [96] In KQ v. HAE,147 the court remarked that a finding that parties are living in a de facto relationship: “… is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.” [97] It is clear enough that the applicant and the deceased rekindled their fondness of each other from about 2009 or 2010 to the point of foreshadowing re-marrying. I am unable to conclude that their lives had merged such as to be characterised as a de facto relationship as at the date of death. The applicant still held reservations about the parties’ communication, hence the agreement about doing the Strong Communications course upon the deceased’s return. At best, the parties made a mutual commitment to remarry during a courtship stage. That is, they were merely poised to resume their life together in the future. The reputation and public aspects of the relationship [98] The applicant was again made the deceased’s enduring power of attorney on 19 July 2010.148 But this was not because of any realisation of invalidity of the former appointments, but because the applicant had reverted to her maiden name.149 [99] In the eulogy the deceased wrote for his mother’s funeral service in July of 2011, he speaks for and on behalf of the applicant and refers to her as his mother’s daughter- in-law.150 [100] The applicant also relies upon the evidence of the deceased’s sister, Gillian Kemp, and the longstanding neighbour and friend to the applicant and deceased, Mr Hayton. [101] Ms Kemp deposed that whilst she learnt about the divorce from her brother, he continued, “to speak very highly of Carol, and their life together.”151 And further that, “Carol was never out of the picture and they continued to live together in the house at McFarlane Drive, Kanimbla when he was in Cairns”.152 Particularly in respect of last several years before his death, she noted that “Malcolm always spoke to me as though Carol was his wife, and ... always appeared to me as a happy and loving couple.”153 She also recalls that the deceased was “on his last trip to China, and he had been planning to return home for good when he died, to resume a normal married life with Carol. He had been looking forward to it.”154 However, it 146 This was not doubted on appeal: Hibberson v George (1985) 12 Fam LR 725. 147 KQ v. HAE [2007] 2 Qd.R 32 at [19]. 148 Affidavit Christopher [2], para [84]. 149 Affidavit Christopher [2], para 84 & Exhibit CMEC-10. 150 Affidavit Christopher [16], Exhibit CMEC-18, at p. 68. 151 Affidavit Kemp, para 2(d). 152 Affidavit Kemp, para 2(e). 153 Affidavit Kemp, para 2(g). 154 Affidavit Kemp, para 3(e). -- 24 of 33 -- 25 is remarkable that Ms Kemp apparently perceived no change in the parties’ relationship despite periods of undisputed separation.155 [102] Mr Hayton well knew of the divorce having witnessed to the “divorce papers”. He noticed a change in the applicant and deceased’s relationship at that time but observed that by 2009 their relationship had “returned back to normal”.156 He recalls a conversation with the deceased in late January/early February 2013 as follows: “I remember having a conversation with Malcolm, I ran into him somewhere and we had a chat. I said to him “I hear you guys are thinking of getting married again”. He responded, “we’re not thinking about it, we will get married”. He went on to explain that they were going to get officially married again when he returned.”157 [103] These remarks attributed to the deceased affirm the intention for the parties to resume life together when he returned. They are consistent with the degree of mutual commitment discussed above. It seems to me that the applicant and the deceased had not resumed life together as a couple on a genuine domestic basis, and a de-facto relationship had not been realised by the date of his death. [104] Therefore, I do not accept that the applicant has standing as the deceased’s de facto partner. Instead, I proceed on the basis she was the deceased’s dependent former wife. Adequate Provision [105] Section 41(1) of the Act provides: “s 41(1) If any person (the “deceased person”) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependent, the court may, in its discretion, on application by or on behalf of the said spouse, child 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, child or dependant.” [106] In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed:158 1. First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support; and 2. Secondly, if so, the court will then determine what provision ought to be made in the circumstances. Is the applicant left without adequate provision? 155 Affidavit Kemp, para 2(f)-(h). 156 Affidavit Hayton, para 2 and 5(a). 157 Affidavit Hayton, para [5](c). 158 J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191. -- 25 of 33 -- 26 [107] The first stage of the inquiry is whether the disposition of the estate by the will made adequate provision for the proper maintenance and support of the applicant. [108] This goes to jurisdiction and is to be determined at the date of the death of the deceased, including matters which could be reasonably foreseen at that time.159 The fact that a will is morally unjust is not enough to warrant alternation to the disposition of the property.160 [109] In Singer v Berghouse,161 provides that the jurisdictional question requires: “[A]n assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to 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 persons who have legitimate claims upon his or her bounty. [110] The inquiry is more than an assessment of an applicant’s needs. It involves an evaluative balancing of all the relevant considerations to determine what provision a wise and just person in the position of the deceased would have made.162 [111] As Keane JA (as his Honour then was) observed in Hills v Chalk & Ors:163 “Judicial statements of high and longstanding authority explain that the evaluative assessment whether "adequate provision" has not been made for the "proper maintenance and support" of an eligible person must be made from the perspective of the deceased person on the assumption that the deceased was alert to the considerations relevant to the making of "adequate" provision for the "proper maintenance and support" of the claimant. In Bosch v Perpetual Trustee Co ([1938] AC 463) Lord Romer, delivering the advice of the Judicial Committee of the Privy Council said that "in every case the Court must place itself in the position of the testator, and consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as a wise and just, rather than a fond and foolish, husband or father”.” [112] In summary, considerations relevant to the resolution of the jurisdictional question include: the applicant’s financial circumstances; the size of the deceased’s estate; the competing claims upon the deceased’s estate; the nature of the relationship between the deceased and the applicant; any contribution made by the applicant to the deceased’s estate; any special need of the applicant that was known and should have been known by the deceased; and the deceased’s wishes. The applicant’s financial circumstances 159 Singer v. Berghouse (1994) 181 CLR 201 at 209-10; Vigolo v. Bostin (2005) 221 CLR 191 at [4]; Green v. Holtom [2006] WASC at [20]; Family Provision in Australia, 3 ed, de Groot & Nickel, para [2.26]. 160 Bosch v. Perpetual Trustee Co Ltd (1938) AC 463 at 478-479. 161 Singer v Berghouse (1994) 181 CLR 201 at 209-210 per Mason CJ, Deane and McHugh JJ; See also Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9 at 19. 162 Freeman & Ors v Jacques [2006] 1 Qd R 318 at [29]. 163 Hills v Chalk & Ors [2008] QCA 159 at [40]. -- 26 of 33 -- 27 [113] The applicant’s current assets are estimated at $317,500 as follows:164 Half share in Kanimbla house $250,000.00 Motor vehicle $3,000.00 Motor scooter $1,000.00 Suncorp account $48,500.00 Furniture and effects $15,000.00 [114] The applicant says her current liabilities are $131,759.72 as follows:165 Centrelink debt $35,705.50 Australian Taxation Office $7,884.00 Debt to executor’s solicitors (billed) $3,740.00 Applicant’s share of mortgage debt $84,430.22 [115] Centrelink is “considering the matter” of the debt due to receipt of Comsuper lump sum payment, which was reported to it in February 2016.166 The deceased’s Comsuper pension continued to be paid until November 2014, but was quarantined in the trust account of the executor’s solicitors.167 During this time, the applicant continued to receive a Centrelink benefit.168 On 26 November 2015, Comsuper determined that the applicant was entitled to a spousal pension.169 As a result, she has received $3,371.97 net of tax,170 and $40,046.23 paid by Comsuper into the executor’s solicitors’ trust account after the deceased’s death.171 [116] The tax debt also arises from the lump sum payment received in the 2016 financial year.172 I am prepared to accept these debts for the purposes of these proceedings. However, I do not accept that the applicant is liable for the executor’s solicitor’s fees, which ought be paid from the estate. It seems to me that $60,000.00 of her mortgage debt was used to fund her proceedings.173 Indeed, it seems to me that her current position has been aggravated by the cost of this litigation. She has a diminished working capacity past retirement age. [117] The applicant’s income has increased since the deceased’s death because she is now receiving the Comsuper spousal pension of $24,729.00 gross per annum,174 or 164 Affidavits Christopher [16], para 18, and [23] para 9. 165 Affidavit Christopher [23], para 10. 166 Affidavit Christopher [23], paras 3-6. 167 Affidavit Christopher [16] paras 7-9. 168 Affidavit Christopher [16], para 12.3. 169 Affidavit Christopher [16], Exhibit CMEC-2. 170 Affidavit Christopher [16], para 12(a). 171 Affidavit Christopher [16], para 12(b). 172 Affidavit Christopher [23], para 7; Exhibit CMEC-1. 173 Affidavit Christopher [23], para 20. 174 Affidavit Christopher [16], para 21. -- 27 of 33 -- 28 $951.14 per fortnight.175 Her expenses are $818.77 per fortnight,176 leaving a surplus of $132.37 per fortnight. [118] Without access to the deceased’s estate, she will need to explore cheaper housing options suited to her age, health and circumstances, as well as provision for contingencies. She deposes that:177 “I have two dogs, who are a source of great comfort to me and one of whom was Malcolm’s dog. If I am required to sell the property, the types of property I could afford with the net proceeds are very modest, and are likely to be units or townhouses where I will not be able to keep the dogs.” [119] It seems to me that the applicant could acquire a townhouse or unit in Cairns for between $150,000 and $200,000.00,178 and therefore has sufficient assets to rehouse without provision from the estate. I accept that the applicant is in a necessitous position in relation to her future maintenance. The size of the deceased’s estate. [120] The deceased’s estate is modest. [121] The only significant asset in the estate is his half interest in the Kanimbla property valued at $240,000.00 as at the date of death and $250,000.00 now.179 The executor estimates her unpaid costs to be $6,740.00.180 The applicant holds the other half share in the house, and continues to reside in it. If the house is to be sold, sale costs of $15,000.00 are anticipated, which will reduce the estate further before accounting for the costs of this proceedings, if any.181 The distributable estate is about $200,000.00. [122] Even a modest provision for the applicant will impact upon the dispositions made to the respondent beneficiaries. The competing claims upon the deceased’s estate. [123] The respondent beneficiaries, the deceased’s adult children, have been provided for under the will. [124] I have already remarked about the nature and extent of communication and contact between the deceased and his children. It is also apparent that the children were not dependent upon the deceased and did not provide any notable services of otherwise contribute to the deceased’s assets. [125] Stephen’s financial position deteriorated after the deceased died due to events beyond his control. In November 2014, he lost his job and relied upon Centrelink benefits.182 In August 2015 he relied upon a friend for rent-free accommodation 175 Affidavit Christopher [23], para 16. 176 Affidavit Christopher [23], para 17. 177 Affidavit Christopher [16]. para 40. 178 Affidavits Ochsner [14] Exhibit RLO-18 & [25], Exhibit RLO-1. 179 Affidavits McFarlane [2], para 21 & [17] para 2. 180 Letter Jeneve Frizzo Estate Law, 6/12/16. 181 Affidavit McFarlane, para 2(b)(iii). 182 Affidavit Buss [13], para 2, 3. -- 28 of 33 -- 29 until he found work.183 He currently earns about $1,577.00 per fortnight after tax and lives in rented accommodation. His expenses almost equate to his income and have a debt of about $2,000.00. He has no significant assets and has about $19,000.00 superannuation of about.184 [126] Rebecca’s financial position also has deteriorated in recent years. Her marriage failed in November 2014 and ended in divorced in June 2016.185 She lives in rented accommodation. Her three children (aged 11 – 17 years) live with their father in the former matrimonial home. If this arrangement continues she expects a 70:30 property distribution in the husband’s favour. On this basis, Rebecca’s share of a property settlement will be about $72,000.186 She leases a car through her work and salary. She earns $990.00 net per week which almost equates to her expenses. She has a credit card debt of $8,000.00 and a personal loan debt of $10,000.00.187 [127] It seems to me that the children’s position is very modest. The nature of the relationship between the deceased and the applicant. [128] Having regard to my findings above, I do not accept that the applicant and the deceased had a “very long relationship” as asserted by the applicant. The nature and quality of their relationship varied over 32 years. At best their friendship and courtship had matured such they were poised to remarry shortly before the deceased’s death. [129] Further provision ought be considered having regard to the longstanding nature of the relationship and the applicant’s dependence upon the deceased as a former dependant wife. Any contribution made by the applicant to the deceased’s estate; [130] The applicant made a significant lifelong contribution to the building up and maintaining of the deceased’s asset base. The Kanimbla house represents the culmination of the parties’ joint effort as co-owners providing maintenance and mortgage payments. [131] The parties reflected their equal contribution to this main asset in their informal property settlement, but the deceased continued to substantially maintain the applicant as his dependant former wife. The deceased’s wishes. [132] The applicant argues that the informal agreement between the deceased and the applicant made on 21 February 2007 has no bearing on the jurisdictional question. [133] The agreement was made at the time and in furtherance of the parties’ separation and was put into effect with severance of joint tenancy. The agreement merely contemplated a right of tenancy by the surviving party for a defined period before the house would be sold and proceeds distributed separately. The parties also 183 Affidavit Buss [13] para 4 & 5. 184 Affidavit Bus [24], paras 2 – 8. 185 Affidavit Ochsner [14] para 2 & [25], para 2. 186 Affidavit Ochsner [10], para 24 & [25], para 4. 187 Affidavit RL Ochsner, sworn 5/12/16, paras 4 – 12. -- 29 of 33 -- 30 entered into new enduring powers of attorney and made directives to their bank to deal with the applicant’s reversion to her maiden name. These circumstances remained in place as at the deceased death, despite the improved relationship and intention to resume their lives together. [134] On the contrary, the deceased made no changes to his will, which made provision of his entire estate to the applicant. There is no evidence that he got legal advice or that he was aware of the effect of s 15(1)(a) of the Act. The deceased told his sister in discussions about his will that “he wanted to ensure Carol was secure at the house, and that she would be okay if anything happened to him.”188 He also expressed concern to his sister that the applicant be adequately provided for, and on a number of occasions he said to the applicant in effect that “whether we are married or not he wanted to provide for me for the rest of my life.”189 [135] In any event, it is not possible to contract out of the provisions of the Act.190 A wise and just testator having regard to the longstanding nature of the relationship and continuing maintenance should have made some provision for the applicant in his will. [136] I conclude that the applicant is entitled to adequate provision from the deceased’s estate, which takes me to the second stage of the process. What provision ought to be made? [137] The second stage involves a determination of what provision, having regard to all the circumstances, would be “proper maintenance” for the applicant. [138] The applicant contends that she should receive the benefit of the whole of the deceased’s estate to the exclusion of the respondent beneficiaries.191 This is predicated upon establishing her status as a de facto wife, which I do not accept. Instead, I proceed on the basis that the deceased ought to have made adequate provision for the applicant’s proper maintenance and support as his former dependant wife. [139] “Adequate provision for the proper maintenance etc” means more than maintenance at a basic level. It means maintenance and support at a level or degree appropriate to the applicant in all of the circumstances,192 which is judged according to prevailing community standards of what is right and appropriate at the time of the trial.193 Applegarth J described this stage in Stewart v Stewart,194 as follows “If inadequate provision was made for the applicant, then the court determines what amount the applicant should properly receive from the deceased’s estate. This requires the court to exercise its discretion in determining what provision a “wise and just testator” would have made in the circumstances. In exercising its discretion, the matters already 188 Affidavit Kemp, para 4(b). 189 Affidavit Christopher [2], para 131. 190 See J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.45]. 191 Applciant’s Submissions, paras 67-71. 192 Family Provision After Death, Dickey, p.102. 193 Singer v. Berghouse (1994) 181 CLR 201; White v. Barron (1980) 144 CLR 431 at 440. 194 Stewart v Stewart [2015] QSC 238 at [13]. -- 30 of 33 -- 31 considered in connection with the adequacy of any provision become relevant to the determination of what provision should be made.” [140] But the court has no power to make to re-write or make a new will to effect a “fair” distribution of the testator’s estate among the family.195 [141] As it was put in Blore v. Lang:196 “The jurisdiction conferred by the Act is to interfere with the testator’s dispositions when he has left a member of his family without adequate provision for his or her proper maintenance, etc., and the extent of the interference authorized is to order such provision as the court thinks fit for that person’s proper maintenance. Bad conduct or character may disentitle a member of the family to needed assistance, but good conduct and honest worth are not to be rewarded by a generous but second-hand legacy at the hands of the court. Nor, in a case were a testator has chosen to dispose of his estate according to his inclination, ought the generous treatment of a child who has no need of the testator’s bounty be used to determine the provision to be made for a child whose need has been disregarded or overlooked. The measure to be applied is not what has been given to one, but what the other needs for his or her proper maintenance, giving due regard to all the circumstances of the case. The Testator’s Family Maintenance Act is legislation for remedying, within such limits as a wide discretion would set, breaches of a testator’s moral duty to make adequate provision for the proper maintenance of his family – not for the making of what may appear to the court to be a fair distribution of a deceased person’s estate among members of his family.” [142] The respondent beneficiaries’ circumstances are also strained, they are younger and have the capacity to improve their situation into the future. Of course, the beneficiaries do not have to justify their receipt of benefits under the will, rather it is for the applicant to demonstrate that she requires further provision for her proper maintenance and support.197 The applicant is aging, living in tight economic circumstances and unlikely to improve her position into the future. [143] I have considered whether adequate provision requires an interest less than an absolute interest, namely a life interest in the property of the deceased. This is sometimes called a “Crisp order”. The nature and purpose of such an order was described by Ipp JA in Milillo v Konneck,198 by reference to its genesis: “A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purpose of securing, for the plaintiff’s benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, 195 Perpetual Trustee Queensland Ltd v. Mayne [1992] QCA 417; Hobbs v. Russo [2005] QSC 201 at [72]; Gray v Mather [2016] NSWSC 699 at [76]; Sung v Malaxos [2015] NSWSC 186 at [5]. 196 Blore v. Lang (1960) 104 CLR 124 at pp.134-5. 197 Re Adamow (1989) 97 FLR 410 at 415 per Miles CJ. 198 Milillo v Konnecke [2009] NSWCA 109 at [47]-[48], referred to in Kowalski v Kowalski & Ors [2012] QCA 234 at [29]. -- 31 of 33 -- 32 unreported), Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to ’cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital’. Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a ‘portable life interest’.” [144] However, neither party has sought such an order, and it is now too late. Stephen’s and Rebecca’s costs are estimated at $65,000.00 to the end of a one day trial and $75,000.00 to the end of a two day trial.199 The applicant estimates her costs at $84,000.00.200 The estate has also incurred significant costs and liabilities. Whilst a “Crisp Order” might have been a viable outcome at an early stage of the dispute when the mortgage was minimal and the legal costs were low, it is now not viable.201 [145] I lament the lost opportunity of the parties to have reached a resolution by mediation shortly after its commencement 3 years ago on 17 April 2014. [146] For all these reasons, I conclude that the appropriate order is for the will to be read and construed as if it divided the estate equally between the applicant (for one half) and the deceased’s children (for the other half). Unless otherwise resolved, this is likely to necessitate a distribution after the sale of the Kanimbla house to provide adequate provision for the applicant’s housing, maintenance and support. This also takes account of the beneficiaries’ concession that the estate is liable for $27,581.98 of the current mortgage debt. Orders [147] For these reasons I will order that: 1. Pursuant to s 41(8) of the Succession Act 1981 the application be heard and determined although a grant of probate has not been made. 2. Further provision be made for the proper maintenance and support of the applicant, Carol Margaret Eveline Christopher, from the estate of Malcolm Charles Buss (deceased) being one half of the estate of Malcolm Charles Buss, leaving the residual estate to be shared equally by the respondent beneficiaries. 3. I will hear further from the parties as to the terms of orders and any issue as to costs. 199 Affidavit RL Ochsner [25], para 14. 200 Affidavit CME Christopher [16], para 28. 201 Cf. J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [4.3]. -- 32 of 33 -- 33 Judge DP Morzone QC -- 33 of 33 --