Chapman v Chapman [2001] QCA 465

SUPREME COURT OF QUEENSLAND CITATION: Chapman v Chapman [2001] QCA 465 PARTIES: TANIA LEIGH CHAPMAN (plaintiff/respondent) v SANDRA LEIGH CHAPMAN (defendant/appellant) FILE NO/S: Appeal No 5299 of 2001 DC No 1997 of 2000 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 30 October 2001 DELIVERED AT: Brisbane HEARING DATE: 19 October 2001 JUDGES: Thomas JA, Ambrose and Cullinane JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. That the appeal be allowed. 2. That the respondent pay the appellant’s costs of the appeal to be assessed. 3. That the order of the District Court of 18 May 2001 be varied by replacing paragraph [1] thereof with the following: [1] The last Will and Testament of Daphne Agnes Chapman executed on 13 March 1996 be read and construed as if: (i) Subparagraph (b) of paragraph (2) and paragraph (3) did not appear therein; and (ii) In lieu of that subparagraph and of that paragraph there was included this subparagraph 2(b). (b) To give one quarter thereof to my daughter Tania Leigh Chapman and three quarters thereof to my daughter Sandra Leigh Chapman. -- 1 of 4 -- 2 4. Grant the respondent an indemnity certificate in respect of the appeal under the Appeal Costs Fund Act 1973. CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – where trial judge found respondent not adequately provided for under will – where trial judge awarded two thirds of deceased’s estate to respondent and one third to appellant in circumstances where appellant had by far greater moral claim APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETIONOF COURT BELOW – JUDGE CLEARLY WRONG – where obvious that discretion miscarried and necessary for Court of Appeal to exercise discretion afresh – one quarter of estate awarded to respondent Appeal Costs Fund Act 1973 (Qld) Succession Act 1981 (Qld) Uniform Civil Procedure Rules, (Qld) r 388 COUNSEL: H J Zillmann for the appellant J A Woodham for the respondent SOLICITORS: Roderick & Co Solicitors for the appellant Trilby Misso & Company for the respondent [2] THOMAS JA: I agree with the reasons of Cullinane J and the orders that he proposes. [3] AMBROSE J: I agree. [4] CULLINANE J: The appellant and the respondent are sisters. The respondent brought an application for further and better provision under the will of the deceased Daphne Agnes Chapman (“the deceased”), the mother of both the applicant and the respondent. The deceased died on 13 October 1999. [5] By her will the deceased left a bequest to the respondent in the sum of $3,000 stating that she had not made any greater provision for her as “the normal relationship as between mother and daughter has not existed since about 1972 and I believe I have adequately provided for her during my life”. [6] The estate was a somewhat modest one consisting of certain land on which the family home stood and on which a horse riding business had been conducted. It was accepted by the learned trial judge as being in the order of $220,000. [7] The application succeeded and the learned trial judge awarded two thirds of the estate to the applicant and one third to the respondent. [8] It can be said immediately that both parties acknowledge that this order cannot stand. The order made is so obviously unjust (unfair to the appellant and over- -- 2 of 4 -- 3 generous to the respondent) that the discretion must have miscarried. When one considers the strong moral duty owed by the deceased to the appellant (to which some further reference will be made shortly) and her desire to benefit her and on the other hand the acknowledged moral duty of the testator to the respondent, no reasonable exercise of the court’s discretion under the legislation could have produced such a order. [9] Both parties accepted that the likely explanation for the quite extraordinary order made was that the learned trial judge had made an error in expressing the judgment it not representing what he had intended to award the respondent. [10] This is a possible, even likely, explanation. However, neither party took any step to apply to the court to amend the judgment under r 388 of the Uniform Civil Procedure Rules. These proceedings were instituted and the court is faced now with the judgment that I have just outlined. It is not possible for this court to be certain that this represents an error on the part of the learned trial judge and, if so, to be certain of its scope. [11] It is therefore necessary that this court exercise the discretion for which the Succession Act provides afresh. [12] The findings of fact made by the learned trial judge are not challenged in any way and thus must form the basis for the exercise of the court’s discretion when considering the appropriate order to make in order to satisfy any undischarged moral duty owed by the deceased to the respondent. [13] Exhibit 3, which appears at p. 216 of the record, is a chronology which is, it would seem, accepted. As his Honour’s findings of fact are not the subject of any challenge it is necessary to state only in summary form the relevant history. [14] The appellant was born on 28 September 1954 and the respondent, who was adopted by the deceased and her late husband in 1960, was born on 2 March 1957. The respondent had a somewhat disturbed adolescence running away from home in 1972 and being placed in a Salvation Army Home by the Director of Children’s Services in whose care and control she then was. [15] She returned to her parents in early 1974 and then commenced to work in a clothing factory. She has been married and divorced some three times. She has three children born in 1976, 1979 and 1981. [16] Whilst the deceased disapproved (and made her disapproval known) of the choice of husband made by the respondent on at least two of the occasions she married and was somewhat critical of the respondent when she returned to school in 1992 for the purposes of completing grades 11 and 12, the relationship between the respondent and the deceased continued with the respondent maintaining contact with the deceased, and during his lifetime, the respondent’s late father. [17] At the date of the deceased’s death the respondent was unemployed, was dependent upon one of her former husbands for a place to live and had virtually nothing in the way of assets. She was in receipt of a pension. She was, as the learned trial judge found, incapable of supporting herself on a permanent basis notwithstanding that -- 3 of 4 -- 4 she had obtained some tertiary qualifications. Her position had not altered materially when the application was made. [18] The appellant accepted his Honour’s finding that the deceased owed a moral duty to the respondent which had not been satisfied by the bequest of $3,000. He found that the deceased had not made adequate provision for the respondent during her life time and rejected the statement that the relationship between the respondent and the deceased had not been a “normal mother-daughter relationship since 1972”. These findings are not challenged. [19] On the other hand the moral claim of the appellant was a very strong one. She had lived with her parents all of her life. A complaint was made that his Honour failed to deal with this adequately. However, it would seem that his Honour considered it unnecessary to dwell on this, it not being the subject of any contest. It is plain that she has devoted a good deal of her life to caring for her parents and she also made financial contributions which are reflected in the value of the estate. [20] The deceased, by her will, understandably wished to benefit the appellant. The order which the court makes must reflect the strength of her claim upon the bounty of the deceased and the deceased’s desire that the appellant should benefit under her will. On any view of things, she must receive the bulk of the deceased’s estate. [21] I think that the justice of the case is met by an order that provision be made for the respondent out of the estate of the deceased so that she receives one quarter of the estate and the appellant three quarters. [22] The appellant should have her costs of the appeal. However, notwithstanding that both parties might have taken some steps which might have prevented the matter reaching this court, I think it is an appropriate case to order that certificates be granted to the parties under the Appeal Costs Fund Act 1973. [23] I would make the following orders: 1. That the appeal be allowed. 2. That the respondent pay the appellant’s costs of the appeal to be assessed. 3. That the order of the District Court of 18 May 2001 be varied by replacing paragraph [1] thereof with the following: “[1] The last Will and Testament of Daphne Agnes Chapman executed on 13 March 1996 be read and construed as if: (i) Subparagraph (b) of paragraph (2) and paragraph (3) did not appear therein; and (ii) In lieu of that subparagraph and of that paragraph there was included this subparagraph 2(b). (b) To give one quarter thereof to my daughter Tania Leigh Chapman and three quarters thereof to my daughter Sandra Leigh Chapman.” 4. Grant the respondent an indemnity certificate in respect of the appeal under the Appeal Costs Fund Act 1973. -- 4 of 4 --