Bain, Re; Re Bain [1992] QSC 218

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) :_. ·~ . " REVISED -COP!ES ISSUED - State·Reporting Buraau c: SUPREME COURT OF QUEENSLAND Date r "'--·/ c: - c: CIVIL JURISDICTION i:' .. < •• ' · •• : t .: WILLIAMS J IN THE MATTER of the Succession Act (as amended) and \ .. IN THE MATTER of the Will of MERVYN JAMES BAIN late of 284 Haley Street, Kingaroy in the State of Queensland, Investor, Deceased and IN THE MATTER of an Application by JEAN MERIDITH BAIN under Part IV of the said Act BRISBANE I I DATE 24 /6/92 -JUDGMENT 1 -- 1 of 15 -- 240692 . HIS HONOUR: In this matte~ I have prepared reasons for judgment~ which I publish. For those reasons the substantive order I will be making is to increase the legacy of $150,000 by $75,000 to $225,000. HIS HONOUR:· The applicant widow commenced these proceedings seeking an 6rd~r foi further and better provision out of the estate o:E her late husband, by originating summons filed 20 June 1991. The estate was a large one, having a net value in excess of $700,000. She had been left a legacy, plus the house ·and contents, which represented something in excess of $200,000 of the estate. There were a number of residuary legatees and there were also other people who, at least, had a legal entitlement to consider joining in an application for provision out of the· estate. It may well have been the position, by 30 March 1~92 when-all substantive affidavits had been filed, that the probability of the applicant obtai'ning. an increase in her legacy to ·the extent of more than $200,000 wai slight. On 4 February 1992, the solicitors for the executors wrote to the solicit0rs for the applicant drawing the latter's attention to the jurisdictio~ of the District Court and raising the query of whether or not it would not be appropriate to have the matter transferred to that jurisdiction. The applicant did not initiate any steps in that regard. Thus, the matter stood on 30 March 1992 when the matter came before Master 2 10 20 C) 0 30 () 40 0 50 60 -- 2 of 15 -- 240692 ~hite, as she then was. A consent order was made on that day. The conse_nt order is in the following terms: ''(1) ~he matter be adjourned to the civil sittings for a date to be assigned at the callover in due course, with priority. (2) That the costs of and incidental to this application and order be reserved." It is conceded that the executors did not raise before Master White on that day any jurisdictional question. It seems to me that by consenting to the matter being adjourned to the civil sittings list of this Court they were acquiescing in the plaintiff's contention that this was the appropriate.forum. It should be said that the hearing lasted only approximately half ·a :~(lay;~ _""- up to 4 February would have to be allowed on the Supreme Court The question is a difficult one and I am conscious of the force of Mr Whiteford's submission that the residuary beneficiaries ought not have to bear the burden of -- unnecessary costs-~ · .But., . in all · the- ~circumstances, . ·-· ., ~ particularly in the light of the matters to which I have specifically drawn attention, the appropriate order is that the costs of all parties, including reserved costs, be taxed on a solicitor and client scale and paid out of the estate. My orders will therefore be as follows: That further ~revision be made for the proper maintenance and support of the applicant Jean Meridith Bain out of the estate .of Mervyn James Bain, deceased, by. ordering_ that his will. be re_..d, · and construed as 3 10 20 30 40 50 60 -- 3 of 15 -- 240692 if in lieu of the legacy of $150,000, he provided a legacy of $225,000. I order that the costs of all parties, including reserved costs, be taxed on a solicitor and client scale and paid out of the estate. 4 10 20 30 40 50 60 0 0 0 -- 4 of 15 -- c c c 'IN THE SUPREME COURT OF QUEENSLAND CATCHWORDS: O.S. No. 605 of 1991 IN THE MATTER of the Succession Act (as amended) - and - IN THE MATTER of the Will of MERVYN JAMES BAIN late of 284 Haley Street, Kingaroy in the State of Queensland, Investor, Deceased - and - IN THE MATTER of an Application by JEAN MERIDITH BAIN under Part IV of the said Act JUDGMENT - G.N. WILLIAMS J. Delivered the 24th day of June 1992 Testator's family maintenance- widow- legacy increased in circumstances where applicant had helped build up estate and where applicant proposed moving into unit - lifestyleto which she was accustomed. Counsel: Solicitors: D.G. Mullins for Applicant. R.J. Whiteford for Respondents. McCullough Robertson for Applicant. Roberts Mason & Co. for Respondents t/a Nicol Robinson & Kidd. Hearing date: 12th May 1992 -- 5 of 15 -- c c c c c ·IN THE SUPREME COURT OF QUEENSLAND o.s. No. 605 of. 1991 IN THE MATTER of the Succession Act (as amended) - and - IN THE MATTER of the Will of MERVYN JAMES BAIN late of 284 Haley Street, Kingaroy in the State of Queensland, Investor, Deceased - and - IN THE MATTER of an Application by JEAN MERIDITH BAIN under Part IV of the said Act JUDGMENT- G.N. WILLIAMS J. Delivered the 24th day of June 1992 Mervyn James Bain died on 25th March 1991 aged 71, leaving a Will which had been duly executed dated 12th July 1990. He had been married on three occasions and he was survived by both his second and third wives. There were no children from any of the marriages. The net value of his estate is in excess of $700,000.00. By his Will he left his widow (third wife) a legacy of $150, 000.00 plus the house and contents at 284 Haley Street, Kingaroy; the house is valued at $69,600.00 and the contents at $1,780.00. $10,000.00. A nephew, M.E. Salter, received a legacy of He released a stepdaughter (Kylie Webster), the daughter of his third wife, from repayments on a loan to acquire a Nissan motor vehicle; there was approximately $2;000.00 outstanding as at the date of his death. Also he gave a legacy -- 6 of 15 -- c~ 2 of $10,000.00 to C.E. Porter, one of his executors, in lieu of commission. There·were then nine residuary beneficiaries; four nephews (M.E. Salter, F.A. Bain, D.J. Bain and W.T. Bain), three nieces (V. Harris, J.G. Askin and K.L. Galloway), his stepdaughter (Kylie Webster), and P.J. Salter, the wife of M.E. Salter. His widow, Jean Meridith Bain, has made application to the court pursuant to the provisions of the Succession Act 1981 for further provision for her proper maintenance and support out of the estate. The application is resisted by the executors and four of the residuary beneficiaries (M.E. Salter, P.J. Salter, (~ V. Harris, and J .G. Askin). There was no appearance by the other residuary beneficiaries. c: c: c: Though quite voluminous affidavits have been filed in response to the application, and though the applicant was cross-examined at some length at the hearing, there are not many areas of contention so far as the facts are concerned. The applicant and the deceased married on 25th November 1978 and I am satisfied that they lived together harmoniously until his death. It was accepted by the applicant that from about 1986 there were fewer outward displays of affection on the part of the deceased than previously had been the case. But I am satisfied that such a change in attitude was largely the result of advancing age and failing health. The deceased had undergone major heart surgery and then in about mid 1990 was diagnosed as suffering from terminal cancer; from then until his death, being alive was not an entirely happy state for him. He suffered fairly constant pain, required regular hospitalisation, and was -- 7 of 15 -- c: 3 affected by the understandable psychological impact of knowing that oeath was but around the corner. Against that background it is not surprising that he became irritable, and that some of his frustration was directed towards the applicant who was the person most in contact with him. The evidence establishes to my satisfaction that throughout the marriage, and in particular throughout the period of the deceased's last illness, the applicant was regularly by his side and afforded all the care and attention that one would ordinarily expect from a wife in such circumstances. There is no doubt that other members of the wider family, (' including some of the nephews and nieces who were named as residuary beneficiaries, from time to time, and for some even on a regular basis, afforded him support and comfort. But it was the applicant who, in her special position as a wife, was fairly constantly by his side and not only for those periods which, of necessity, the other relatives could devote to his cause. It is impossible, and indeed pointless, to embark upon an inquiry into the cause of the breakdown of the deceased's second marriage. It may or may not be that the present applicant was to some extent a cause of the breakdown of that marriage. Some family members, including some who are residuary beneficiaries, believed that the applicant was responsible for the breakdown of that marriage and for that reason harboured feelings of resentment towards her for some period of time. All of those matters are hardly significant in 1992 when I am considering the question of the adequacy of the provision made by the deceased for the applicant in his Will. What, in my opinion, is more -- 8 of 15 -- c: c: c~ c~ c~ 4 important, is that for some thirteen years the applicant discharged her duties as a wife, and she remained devoted to the deceased throughout his final illness. When the association between the applicant and the deceased began, Kylie Webster was aged about four years, and throughout the rest of his life he treated Kylie as his daughter. The applicant's other children were significantly older and in consequence neither required nor received the fatherly attention which the deceased bestowed on Kylie. Prior to the marriage (it would appear from about July 1975) the applicant began working as a clerk-receptionist for an optometrist in Kingaroy. She is still so employed though she is now aged 60; her date of birth is 8th June 1932. The evidence is not clear as to whether or not she will be able to retain her job, but on the balance of probability it would appear that she could do so at least for some short period. At the time of filing her initial affidavit the applicant was earning $320.00 net per week, but that has now increased to about $340.00 net per week; her weekly expenses at the time of filing her first affidavit amounted to . $280.00 and that figure has not been revised subsequently. If the deceased had not died when he did I am satisfied on the balance of probability that by about now the applicant would have retired and she and the deceased would have been living in retirement, probably at Caloundra. The applicant throughout the marriage used her income to meet to a significant extent her day-to-day living expenses and to provide, to some extent, for the maintenance and upkeep of the -- 9 of 15 -- c~ C' 5 family home. The fact that the applicant's earnings were used in that way relieved the deceased to that extent of obligations he would otherwise have had to satisfy and thus he was able to build up his personal assets. Further, the applicant helped build up the deceased's business assets. For quite a number of years the deceased operated a school bus run business. I am satisfied that the deceased encouraged the applicant to acquire the appropriate driver's license so that she could assist him in that work, and that she did from time to time give such assistance though she was still holding down her job as a clerk-receptionist. The applicant received no specific remuneration for the bus driving work that she did, but it was generally regarded as part and parcel of the give and take within the matrimonial situation. In about 1984 the deceased sold the bus runs. One was sold for about $77,500.00 and the other for about $20,000.00. Other people, such as Porter, also assisted the deceased from time to time in this business. Ultimately what is important is that over a period of time the applicant directly (by driving buses) and indirectly (by relieving the deceased from the necessity of doing other things or making financial payments) helped to build up the value of the bus business. Throughout his life the deceased from time to time bought and sold real estate and often made a profit from such activities. I am satisfied on the whole of the evidence that the applicant and the deceased enjoyed spending regular holidays at or near Caloundra o~ the Sunshine Coast, and in consequence the deceased became interested in real property there. In the latter -- 10 of 15 -- c: 6 years of his life he bought and sold a new brick home and two units at Caloundra. One of the Caloundra's units was sold by the deceased in February 1990 for $150,000.00 and he gave the applicant $20,000.00 from the proceeds of sale. That has been invested by the applicant and is now represented by money held in personal superannuation insurance bonds. At the present time the applicant has assets worth about $90,000.00; more than half of that amount is represented by the surrender value of personal superannuation insurance bonds. She has jewellery worth about $5,000.00, and a relatively new motor (: vehicle. c: c: (' In the year 1986 the deceased caused a large residence to be constructed in Moonya Street, Kingaroy. It was intended that it should be the new matrimonial home but the deceased and the applicant never moved into it and it was sold in January 1989 for $122,500.00. That house was a contentious issue at the hearing. For the respondents it was intended that the applicant unreasonably refused to move into that home and that her conduct in that regard was responsible for a breakdown in the matrimonial relationship. It was also contended that the property was sold at a significant loss. On the other hand the applicant's evidence was that there was no dispute over that home. Her evidence was that it was too large given the needs of herself and the deceased, and the decision to sell was made against the background of the deceased's failing health and his desire to retire to the Sunshine Coast area. On this issue I accept and act on the evidence of the applicant. -- 11 of 15 -- 7 As already stated it was the deceased's intention to retire and live in a unit, probably at Caloundra. The applicant had enjoyed living at or near Caloundra with the deceased from time to time, and she had an expectation that she would live there in retirement with him. She expressed the wish during evidence to live now (once she ceases work) at Caloundra, and that would be in keeping with the lifestyle and expectations created for her by the deceased. c~ Mr. Whiteford for the respondents contended that the deceased was motivated in leaving a large part of his estate to nephews and nieces because he was trying to redress an injustice (: done to his brother Frank and sister Myra on the death of his father (S.J. Bain) in January 1964. As part of that argument it c: c: c~ was submitted that the deceased was made a wealthy man because of his inheritance at the expense of Frank and Myra. I am not satisfied that such is the case. The evidence indicates that S. J. Bain left the assets of the Kumbia Grazing Company ("Old Greystonlea") equally to the deceased and his brother K.S. Bain. It would appear that the property was operated by the deceased and K. S. Bain until 1980 when the deceased sold his half interest to Porter for $96,000.00 plus stock. Then K.S. Bain died in . ' September 1983 and left his interest in the property to the deceased. Shortly after acquiring that half interest the deceased sold it for $230,000.00 including stock. Whilst it is true that the deceased obtained more than $300,000.00 from the sale of his interests in that grazing property, that was not the direct and immediate result of S.J. Bain deciding to leave his estate as he did. The evidence does not satisfy me that the -- 12 of 15 -- 8 deceased was motivated to leave most of his residuary estate to nephews and nieces being the children·of his brother Frank and sister Myra because of a desire to remedy some wrong done to Frank and Myra at the time of his father's death. It is not necessary to set out specific details of the assets of any of the residuary legatees; it is sufficient to record that each can accurately be described as having only "moderate" means. c~ The first question for determination is whether or not the deceased made adequate provision for the proper maintenance, support and advancement of the applicant; that is to be (: determined given the facts as they existed at the date of his death but looking ahead prospectively from that time with respect to the likely needs of the applicant. The relevant principles are now well settled and it is not necessary to cite from authorities. The duty of a testator to his widow is to ensure that she is secure in a home, that she has an income sufficient c: to permit her to live in the style to which she is accustomed, and to provide her with an adequate fund to meet contingencies so that she is free of pecuniary anxiety. In determining whether proper maintenance has been so provided the court must have regard to the manner in which the testator provided for the widow during his lifetime; she has a legitimate expectation that such lifestyle will continue. It is also important to have regard to the way in which, if at all, the widow has helped the testator build up his estate. It is also not irrelevant to weigh the competing claims of the residuary beneficiaries against the claims and legitimate expectations of the widow. -- 13 of 15 -- 9 I am satisfied that the deceased did fail to make adequate provision for his widow: There was a failure to appreciate and give proper weight to the fact that in a variety of ways, as indicated above, the applicant had helped him build up his assets. Further, the deceased failed to have sufficient regard to the fact that, because of her age, the applicant's future working life was very limited. And finally, the deceased failed to satisfy the applicant's legitimate expectation that, in keeping with the lifestyle to which she had been accustomed, she would live in retirement in a unit at Caloundra. In determining what provision the court should make, regard c=: can be had to all relevant facts as they exist at the time the order is made. The judge must place himself in the position of c=: c=: c=: the testator and consider what the testator ought to have done in all the circumstances of the case. Bearing in mind all findings of fact recorded herein, and the observations made on the evidence, I have come to the conclusion that the applicant should be given an additional $75,000.00, making the total legacy $225,000.00. Making that alteration to the terms of the will gives due recognition to all the matters to which I have referred in this judgment, and in particular would enable the applicant to acquire a retirement unit without thereby creating an unnecessary strain on her financial resources. I would therefore order that further provision be made for the proper maintenance and support of the applicant Jean Meridi th Bain out of the estate of Mervyn James Bain, deceased, by -- 14 of 15 -- c:, c= c= 10 ordering that his Will be read and construed as if in lieu of the legacy of $150,000.00 he provided a legacy of $225,000.00. Counsel for the respondents intimated that he wished to be heard on the question of costs, and I will hear further argument before determining what further orders should be made. -- 15 of 15 --