Coe, Re; Re Laing [1992] QSC 261

n n ( IN THE SUPREME COURT OF QUEENSLAND O.S. No. 784 of 1991 IN THE MATTER of The Succession Act 1981-1987 - and - IN THE MATTER of the Will of ARTHUR FRANC IS COE late of Unit 1, 10 Albert Street, Margate in the State of Queensland, Retired Investor, deceased - and - IN THE MATTER of an Application by LINDA MARY LAING under Part IV of the said Act REASONS FOR JUDGMENT - THOMAS J. Delivered the Twenty-third day of July, 1992 CATCHWORDS: Counsel: Solicitors: Testator's Family Maintenance- Application by de facto wife and two adult daughters A. Warnick for the applicant D.G. Mullins for the respondent A.N. Stone for the executor Messrs. Kenny & Messrs. Corrs, respondent Messrs. Heafley Loel for the applicant Chambers, Westgarth for the and Associates for the executor Hearing Date: 21st July, 1992 ?\ -- 1 of 7 -- IN THE SUPREME COURT OF QUEENSLAND o.s. No. 784 of 1991 IN THE MATTER of The Succession Act 1981-1987 - and - IN THE MATTER of the Will of ARTHUR FRANCIS COE late of Unit 1, 10 Albert Street, Margate in the State of Queensland, Retired Investor, deceased - and - IN THE MATTER of an Application by LINDA MARY LAING under Part IV of the said Act REASONS FOR JUDGMENT- THOMAS J. Delivered the Twenty-third day of July, 1992 There are three applications for better provision from the will of Arthur Francis Coe. Mr. Coe died on 16th November, 1990 aged 83. His estate comprised the unit in which he lived at ( Margate, and a term deposit of about $600,000 together with a small cheque account. He had lived most of his life (at least since 1955) with Linda Laing who is the first applicant. She is LJ now aged 81. The only other persons having any claim to his consideration for the purposes of a family provision application under the Succession Act 1981 as amended are his two daughters, Mrs. Shirley Brindle (now aged 56) and Mrs. Bernadette Tubman (now aged 46). They are daughters of former marriages by the deceased. Mrs. Brindle's mother died in 1938 and Mrs. Tubman's mother was divorced from the deceased in 1955. By his will, made in February 1990, the deceased left the Margate unit and its contents to Mrs. Laing; $25,000 to Mrs. -- 2 of 7 -- 2 Tubman; $25,000 to Mrs. Brindle; and the residue to his brother Emanuel or failing his survival, to Emanuel's wife, Shirley Coe. In the event Emanuel predeceased his brother, and the residuary beneficiary is the deceased's sister-in-law Shirley Coe. Mrs. Coe is now aged 63. She has a grown-up family of five children and a number of grandchildren. She is in fairly comfortable circumstances with assets totalling about $390,000. Her needs are not great, although of course she could no doubt find good use for any further financial gifts. She is a piano teacher. She did not personally have a close relationship with the testator. The extent of the relationship between her husband and his brother is difficult to assess but they obviously remained friendly and it would seem that the testator was reasonably generous to his brother and sister-in-law during his lifetime. She did not have a moral claim on his bounty. Her claim is purely testamentary. Mrs. Brindle was born in 1935 and is presently aged 56. She has three children, the youngest of which is 16 years old and is still dependent. He is an apprentice glazier in the second year of a six year apprenticeship. She was aged only three when her mother died and for some years until her father remarried she was placed by him in a convent. She was sent to a boarding school between 1948 and 1950. In 1953, having commenced nursing training, she went to Roma. For many years she had little contact with her father, but from 1967 when the testator's brother (Ray) died, contact was renewed and a good relationship was established. They gave a good deal of assistance to each other over the ensuing 23 years. During his lifetime he made 0 0 0 0 -- 3 of 7 -- 3 gifts to Mrs. Brindle of a total value of about $55,000. He seems to have adopted a supportive approach towards his daughter, firstly upon the heart attack of her husband, and later upon her widowhood in 1984. Mrs. Brindle's income is now virtually confined to the widow's pension of about $155 per week. She owns her own home, a relatively modest one in Sydney valued at $200,000. She has a car valued at $10,000 and cash totalling $27,900. Her needs ( \·' , . are at least equal to the widow's pension, and her situation certainly lacks any buffer against adversity. In the context of () being one of a very limited number of persons to whom the testator might owe a duty, and in the context of a relatively large estate with little competing claim, she may be regarded as a person for whom a higher standard of maintenance should have been considered. The other applicant, Bernadette Tubman, received no gifts ( during the testator's lifetime. She describes an unhappy relationship with the testator. Throughout her entire life, Mrs. Tubman was afraid of her father. There were fierce domestic arguments between him and her mother. She has lived at Nelson's Bay, New South Wales with her husband for the past 25 years. Since 1984 they have conducted a hardware business which is barely profitable. She has two children, Therese, aged 20, who is a second year medical student who requires assistance from her parents, and David, aged 17, who is in his final school year. Mr. and Mrs. Tubman' s assets are modest. They consist of a house and land valued at approximately $80,000; a dinghy valued at $5,000; a 1986 Ford motor vehicle valued at $8,000 and savings -- 4 of 7 -- 4 of about $7,000. Mr. Tubman also has a fund of about $70,000 which represents the balance of his entitlement to a lump sum consequential upon his service in the R.A.A.F. Competing submissions were made as to the value of the business, with reference to the stock on hand valued at $85,000. However the profitability is poor, and it may fairly be described as a struggling hardware business in which both husband and wife work seven days a week. The goodwill seems insignificant, and assuming the stock is saleable at face value, that would seem to represent the value of the business. She may be described as being in modest circumstances, and as still having considerable needs not only in relation to herself but also to her children. The applicant Linda Laing now aged 81, was the virtual lifetime companion of the testator. He kept control of financial matters during his lifetime and did not make her financially independent. She now has little other than the unit which he has seen fit to leave to her. It is val~ed at $80,000. The moral duty of the testator in the present matter is not difficult to see. He had only two middle-aged daughters and his long-standing common law wife. All three have been left in modest, even marginal, circumstances. Despite the financial prosperity of the testator, the provisions of his will do not relieve them of their marginal financial status or ensure an appropriate degree of comfort and freedom from anxiety for the future. In my view all three were at the relevant time in need. There is force in the submission that by the time he made his will the testator's understanding of the value of money was suspect. It is true that he still gave instructions to his bank 0 0 0 0 -- 5 of 7 -- ( \ \ J 5 manager, but the evidence of Mrs. Laing gives strong support for believing that the testator had a defective understanding of the value of money in the period immediately prior to his death. It may be inferred that the testator intended by his will that each of the applicants (whom he singled out to benefit) would be left financially secure by the provision he was making. The claim of Linda Laing to further provision is overwhelming, and all parties, including the executor and the residuary beneficiary, concede this. All parties were agreed upon the provision that might be regarded as proper, and I accede to their proposal as representing the proper discharge of the testator's duty. The effect of the concession is that the will should be read and construed as if an additional legacy of $150,000 had been left to Linda Laing. The claims of Mrs. Brindle and Mrs. Tubman remain. Counsel for the executor and residuary beneficiary submitted that the legacies of $25,000 could be regarded as the sufficient provision of a "zone of comfort" for the testator's daughters, but I do not think that that is correct in the context of the present matter. Mr. A. Warnick, who appeared for Mrs. Brindle and Mrs. Tubman presented helpful written submissions in which he urged that legacies of $100,000 for each daughter would be the appropriate measure of the testator's duty. The submissions were carefully presented and do not in my view attempt to present a bargaining position. The submission was however premised upon the consequence that at least $200, 000 would remain in the estate for the benefit of Mrs. Coe. Up to date figures produced by the executor show that the total costs of these proceedings are -- 6 of 7 -- 6 likely to be about $40, 000 and that there is an accrued tax liability of about $30,000. Having regard to this, a residue of $200, 000 would be consistent with legacies to the daughter applicants of $90,000 each. That in the circumstances is the provision I would regard as appropriate to give due recognition to his duty to his daughters and due weight to the testamentary intention reflected by the alternative gift to his sister-in-law. Accordingly it will be ordered that the will of Arthur Francis Coe be read and construed as if:- 1. In addition to provision 3A, a legacy of $150,000 free of all duties were left to Linda Mary Laing; 2. In lieu of provision 3b, a legacy of $90,000 free of all duties were left to Bernadette Tubman; 3. In lieu of provision 3c, a legacy of $90,000 free of all duties were left to Shirley Ann Brindle . .A/>1'1 rlncJM.cM~ ,l(l:PIJ£c{ WS.f31 tf"()/7~ ( ~s'd) The costs of all partie~, to be taxed on a solicitor and own client basis, should be paid out of the estate. u 0 o. 0 0 -- 7 of 7 --