Bin Tahal, Re; Re Malone [1991] QSC 406

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, 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.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J \ P.['!ISED COPIES ISSU. ED Court R~rtir.g ll~f~c\U Date, n~ /,,, «102: OS 45 of 1985; OS 16 of 1985; OS 118 of 1985; OS 41 of 1991 and OS 43 of 1991 IN THE MATTER OF the "Succession Act 1981" and IN THE MATTER OF the Estate of WAHAP BIN .TAHAL deceased and IN THE MATTER OF Status of Children Act 1978 and IN THE MATTER OF. an Application for Declaration of Paternity and IN THE MATTER OF an Application by SALMA BIN TAHAL a mentally ill person by her next friend BRIAN EURUS RICHARDSON and IN THE MATTER OF an Application by PATIMAH MALONE and 1 -- 1 of 21 -- 10 20 30 40 50 60 IN THE MATTER OF an Application by HASSAN BIN TAHAL for maintenance and support from the said Estate and IN THE MATTER OF an Application by SALMA BIN TAHAL (a mentally ill person by her next friend ALEXANDER JAMES SPENCE) for leave to apply for an Order that adequate provision be made for her proper maintenance and support from the said Estate and IN THE MATTER OF an Application by PATIMAH MALONE for proper provision out of the said Estate TOWNSVILLE .. DATE 13/12/91 ORDER -Govt. Printer, Qld. 2 1 , 10 20 30 40 50 60 -- 2 of 21 -- !O 20 30 40 50 60 131291 ORpER HIS HONOUR: I make orders that there shall be paid by the Public Trustee: A. To Hassan Bin Tahal the sum of $20,000 less the amount found owing by him to the Public Trustee in respect of costs. To Patimah Malone the sum of $10,000. I order that the Public Trustee shall stand possess.ed of the sum of $75,000 in trust for Salma Bin Tahal. I order that the costs of all parties, including reserved costs be taxed between solicitor and client and be paid out of the estate. I give liberty to apply in case any further question arises in the implementation of this order. I publish my reasons. .. . HIS HONOUR: I make a protection order in terms of the summons. • Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 21 -- IN THE SUPREME COURT OF QUEENSLAND IC~~'-=)----\\.Q_ , FILES: OS 45 of 1985; OS 16 OF 1985; OS 118 of 1985; OS 41 of 1991 and OS 43 of 1991 CIVIL JUR!SDlC'I"ION BEFORE: The Honourable Mr. Justice Ryan IN THE MATTER of the "Succession Act 1981" -and- IN THE MATTER of the Estate of WAHAP BIN TAHAL deceased -and- IN THE MATTER of Status of Children Act 1978 -and- IN THE MATTER of an Application for a Declaration of Paternity -and- IN THE MATTER of an Application by SALMA BIN TAHAL a mentally ill person by her next friend BRIAN EURUS RICHARDSON -and- IN THE MATTER of an Application by FATIMAH MALONE -and- IN THE MATTER of an Application by HASSAN BIN TAHAL for maintenance and support from the said Estate -and- IN THE MATTER of an Application by SALMA BIN TAHAL (a mentally ill person by her next friend ALEXANDER JAMES SPENCE) for leave to apply for an Order that adequate provision be made for her proper maintenance and support from the said Estate -and- IN THE MATTER of an Application by FATIMAH MALONE for proper provision out of the said Estate -- 4 of 21 -- JUDGMENT - RYAN J. DELIVERED THE THIRTEENTH DAY OF DECEMBER, 1991 Counsel: Solicitors: Hearing date: Applicant, Hassan Bin himself. for Mr. M. Drew for Applicant, Salma Bin Tahal. Mr. D. Turnbull for Applicant, Patimah Malone. Mr. R. Pack for Beneficiary, Wahidah Bin Tahal. Mr. C. White for The Public Trustee. Wilson Ryan & Grose for theApplicant, Salma Bin Tahal. Arthur Browne & Associates town agents for MacDonnells, Cairns, forthe Applicant, Patimah Malone. Giudes & Elliott town agents forPescott Reaston & Associates, Cairns, for the Beneficiary, Wahidah Bin Tahal. Official Solicitor to the Public Trustee for the Public Trustee. 3rd December, 1991. -- 5 of 21 -- IN THE SUPREME COURT OF QUEENSLAND FILES: OS 45 of 1985; 16 OF 1985; OS 118 of 1985; os 41 of 1991 a.nd or-: "' 13 :--r- 1991 CIVIL JURISDICTION IN THE MATTER of the "Success Act 1981" __ , -and- IN THE MATTER of the Estate of WAHAP BIN TAHAL deceased -and- IN THE MATTER of Status of Children Act 1978 -and- IN THE MATTER of an Application for a Declaration of Paternity -and- IN THE MATTER of an Application by SALMA BIN TAHAL a mentally ill person by her next friend BRIAN EURUS RICHARDSON -and- IN THE MATTER of an Application by FATIMAH MALONE -and- IN THE MATTER of an Application by HASSAN BIN TAHAL for maintenance and support from the said Estate -and- IN THE MATTER of an Application by SALMA BIN TAHAL (a mentally ill person by her next friend ALEXANDER JAMES SPENCE) forleave to apply for an Order that adequate provision be made for her proper maintenance and support from the said Estate -and- IN THE MATTER of an Applicationby FATIMAH MALONE for proper provision out of the said Estate BEFORE THE HONOURABLE MR. JUSTICE RYAN DELIVERED THE THIRTEENTH DAY OF DECEMBER, 1991. -- 6 of 21 -- 2 THE WILL OF WAHAP BIN TAHAL ications were made by Hassan Bin Tahal, Pa Malone and Tobias Bin Tahal, and Salma Bin Tahal (a ill person by her next friend Alexander James Spence) for proper maintenance and support from the estate of Wahap Bin Tahal, who died at Thursday Island on 10th August, 1984. By his will dated 7th January, 1982, he appointed his wife Sinah Bin Tahal to be his executrix and trustee. She renounced her right to probate and execution of the will. An order to administer with the will the estate was granted to the Public Trustee of Queensland. The Family of Wahap Bin Tahal The deceased had children by three ladies. He was born in Indonesia on 12th June, 1915. He became an Australian citizen on 29th December, 1961. In 1937 he married a lady referred to as Suberia. She is believed to have died in 1949. There were 5 children of the marriage. There were Brian (Ibrahim) born 25th October, 1937, Kadara who died at age 17, Sehat (now June Ross), born 5th June 1940, Hassan who was born on 19th October, 1944, and Patimah who died aged 15 months. The only applicant among these persons is Hassan. After the death of his wife, the deceased began a de facto relationship with one Annie Watratan. This apparently began in 1952. She died in April 1976. She had previously been married, and had a son from -- 7 of 21 -- 3 H- ..,,f-: !l"~.rriage, Tobias Watratan. He was born on 1 ".H-.b July, 1950. He was not officially adopted by the , and has withdrawn his application. ~he children of the relationship are Fatimah, who was born on 24th July, 1955. Her married name is Malone, and she is an applicant. Another child, Napcia, died in 1974. Salma was born on 4 August, 1958. She is an applicant. Finally, another child, Nurah, who was born in 1953, died in 1954. On 13th October, 1977, the deceased married Sinah, who was born on 1st November, 1938. There was one child of that marriage, Wahidah, who was born on 27th September, 1978. After the death of the testator, Sinah married one David Ian Richardson on 29th April, 1985. In the course of the proceedings, I made declarations of paternity pursuant to s. 10 of the Status of Children Act 1978 in respect to Fatimah Malone and Salma. I also made a direction that the applications be heard although proceedings for such applications had not been instituted within nine months after the death of the deceased. The Will The deceased by his last will and testament gave all his real estate and personal property to his trustee -- 8 of 21 -- 4 ~c ~0ld apon the following trust: (a) His house and land situated in John Street for s daughter, Wahidah Bin Tahal. His wife, Sinah Bin Tahal, was to be trustee until she attained the age of 21 years, and then it was for his daughter, absolutely. (b) His house and land situate in Hargrave Street (Allotment 10) on the same trust. (c) His house and land in Hargrave Street (Allotment 11) on the same trust. (d) His house and land situate in Hargrave Street (Allotment 2) on the same trust. (e) As to the rest, residue and remainder of any real estate and personal property in Australia, subject to the payment thereof of all just debts, funeral and testamentary expenses payable on the whole of his estate for his wife, Sinah Bin Tahal, to further the education of his daughter, Wahidah Bin Tahal. (f) Three blocks of land and one plantation in Ambon, Indonesia to pass equally to his wife Sinah and his daughter Wahidah. Clause (e) was the subject of a construction summons which was heard on 10th October, 1991, and in which it was determined that Sinah took the residual estate subject to an equitable charge in favour of Wahidah for her proper education, not limited to the period of her infancy or attaining 21 years. -- 9 of 21 -- The Present Est:ab:s,, The property referred to in clause (a) above was disposed c;i: s death, The property in clause (b) was valued at $122,000 at the date of death. It is now valued at $95,000. It is presently occupied by Sinah, her husband Mr. Richardson, and Wahidah. It comprises three units, two of which are occupied by them, and the third produces rental at $70 per week. The property in clause (c) was valued at $162,300 at the date of death, and is now valued at $127,800. It is occupied by three tenants, who pay a total weekly rent of $215. The property in clause (d) was disposed of by the deceased prior to his death to Patimah Malone and her husband at least nominally at a price of $25,000. There is uncertainty as to its market value, and as to whether the price of $25,000 was ever paid. I refer to this later. The property in clause (e) was valued at $173,000 as at date of death, and is presently valued at $138,400. The property in clause 3(f) has been forfeited, pursuant to Indonesian law, since the deceased had twelve months to dispose of real estate in Indonesia after he became an Australian citizen, and this was -- 10 of 21 -- not done, The 1C 1 337-32 in respect of the properties which are being rented. Of that share, Sinah is entitled to $16,580 and Wahidah to $24,757. A debt of approximately $4,000 is owed to the Public Trustee pursuant to an order for costs in an action to which I shall refer presently. The Applicant Hassan Bin Taha! The applicant Hassan Bin Tahal is now aged 47 years. He has a clerical position in Canberra with the Commonwealth Government. His gross income is $32,000 per annum. He has liabilities amounting to approximately $15,000. He has assets of approximately $7,400. He has three children born in 1967, 1968 and 1976. Hassan Bin Tahal resided in a house owned by his father from 1964 until 1982. He paid rent over the period 1964 to 1979. He did not pay rent thereafter, but did renovations to the house in John Street. His father had developed a taxicab business, and the applicant assisted his father in this business. He was not paid anything for the renovations to the house. After his father's death, he brought a claim in the District Court against the Public Trustee seeking a declaration that the father's estate held $15,400 on trust for him absolutely and an order for payment to him of that sum or alternatively for $15,400 damages -- 11 of 21 -- 7 of contract. The action was and judgment given for the defendants with costs to Hassan Bin Tahal has deposed that he left school at age 15. His father did not send him to Brisbane to complete his secondary education as he was needed at home to help with his taxicab business. His father had purchased a taxi in 1959, after having retired. from the pearling industry the preceding year. He obtained work on Thursday Island, and helped his father with his expanding taxi business. He was never paid for his work. He left Thursday Island in 1961. He returned in 1964 as his father was very ill and had asked him to come home. He states that his father told him that when he died, he would inherit most of his estate and that he was to become the head of the family and take care of their needs. His father asked him to stay on and help run the business. In 1965, the applicant obtained a taxi-driver's licence and started working for his father as a taxi-driver. He was paid for this. He married in 1967, and paid rent to his father for the John Street house. He continued to help his father with his business but was paid only for any driving he did. By 1979, the house he was renting from his father had fallen into a very dilapidated condition. He states that his father told him that he would -- 12 of 21 -- 8 imh•,.1;:-se. him for the, full amount spent ,::,n, or put the money into a trust account in his narne c,r ;;0 him. He completed the in 1982; and estimated his expenses at $15,400. He said that his father sold the house in John Street while he was in Cairns some time in late 1982, and told him he would be reimbursed in his will for the money he had spent in renovating the house. These matters were canvassed in the judgment to which I have referred. The learned trial ·judge was not satisfied that there was any legally enforceable agreement between the applicant and his father. Oral evidence was given by a witness, Balfour John Ross, who is the guardian ad litem of Wahidah Bin Tahal. He said that he remembered the applicant doing the renovations over the years 1979-1981. He was asked by counsel for the Public Trustee: Qn: "Was there any reason that you are aware of why Wahap completely omitted Hassan from his will?" Ans: "From what he told me and my wife, he didn't want to give any of the grown-up children anything. He wanted to give everything to the little girl, because she was the only one who was a minor at that time." The applicant questioned Mr. Ross about sentences in an affidavit he had made that Wahap had informed him -- 13 of 21 -- 9 r~ot approve of Hassan' s lifestyle. l:':0::::;, replied that the deceased did not approve of the being broke. He questioried also about a statement that Hassan, while Wahap was alive, was a compulsive gambler and was always virtually broke. Mr. Ross said that he knew this of his own knowledge. Mr. Ross said also that the father had told him: "Hassan borrowed so much from me," and that he used to get very upset with Hassan because as guarantor for many of his loans, he was often called upon to pay money or was chased by the creditors who thought that he was in fact the debtor. The father told him also that there was financial trouble with repossession of his cab due to moneys being not paid to the finance companies. I raised the question of the admissibility of statements by the testator. In this regard, I consider that I should apply the opinion expressed by Gibbs J. in Hughes -v- National Trustees Executors & Agency Co. (A/asia) Ltd. (1979) 43 ALJR 249 at p. 252, "namely that it is impossible to admit statements of the testator as evidence of the truth of the matters stated .... It is admissible only to prove the reasons which actuated the testator in making his will." In my opinion the character or conduct of the applicant does not disentitle him to the benefit of an order. I accept that he engaged in some -- 14 of 21 -- 10 gambl:i,.ng, ;=i.s a.ppears to. have.: been common: amqng his family and acquaintances though not on the scale It was submitted by the appellant that he had worked for his father for nothing. The only work for which he was paid was for driving taxis. He claimed that he helped to build up the estate. There seems no reason to doubt that the applicant did renovation work on the John Street house and that he received no or inadequate payment for this. No material was put before me to justify a claimed expenditure of $15,400, but this was not questioned by the other parties and I accept it. There is however evidence which suggests that he may not have paid rent while effecting the repairs to the house. The applicant, Fatimah Malone She was born in July 1955 at Thursday Island. She began work at the Thursday Island office of the Department of Aboriginal and Islander Affairs in 1970, and is still employed by that Department at Cairns. She was transferred to the Cairns office in 1984. She has deposed that she assisted her father until some time after her marriage in September 1975, in his work. (This is confirmed by Mr. Ross.) She states that she gave her father approximately $600 at various times and that these moneys have not been repaid to her. Mrs. Malone states that upon -- 15 of 21 -- 11 the .. return o~ he~ father: following his .second marriage, she, her husband and their first child, ~asiding with him, were requested by him to leave the house. They did not talk again until the birth of her third child in February 1982. She separated from her husband on 6th February, 1984 and moved to Cairns with the three children. She states: "Upon completing school my father did not financially assist me. However in 1983 he transferred to my husband and myself certain property situated in Thursday Island by way of gift to us ... The building on this land consists of two flats however they were and still are in very poor condition." In May 1985, Mrs. Malone divorced her husband. She has three children, born respectively in April 1976, November 1980, and 24th February, 1982. They live with her in Cairns. Regular support for the children is not provided by their father. On 11th September, 1990, she sold the property gifted to her by her father, receiving as net proceeds $50,000. Her liabilities amount to $2,000. She deposes that at present her income is $458-00 net per week, and she receives in addition approximately $100 per week by way of interest. She estimates her current weekly expenses at $524-50. -- 16 of 21 -- 12 , .The AJ2E.:1icant S.aJ.:ma ,Bin .Tahal·. She was born in 1958. She suffers from cerebral palsy. wa::.,: o:dmi tted to the Cootharinga Nursing Home on 4th May, 1965, when aged 7 years and diagnosed as being disabled with congenital severe athetoid cerebral palsy. No charge was made against her parents. She was discharged from the Nursing Home to the care of her father in December 1972, but was readmitted to the Cootharinga Society residential facilities in July 1976, at the request of her father. From 1965 until his death, her father made contributions totalling less than $2,000 to the applicant for her own use and benefit and support. She presently resides in a six bedroom house, with five other disabled adults. She receives an invalid pension of $301-60 per fortnight. Of this sum, the Society receives $55 rent per fortnight. The balance does not cover her needs. I accept evidence given by Dr. Richardson, the Chief Executive Officer of the Society, that items he lists in an affidavit would be beneficial to her, as would annual holidays which would require an attendant carer. Dr. Richardson considers that she would benefit from living semi-independently in the community. She would require attendant carers because she is mildly to moderately intellectually disabled. She would require one person for approximately one hour in the morning and two or three hours at night, at a cost -- 17 of 21 -- 13 of 7~ l325 per week. Her physical disabilities do not prevent her from carrying out 'day-to-day·activities such as preparing a meal, doing her washing and doing her ironing. She occasionally uses a wheelchair but is ambulatory. She is capable of going shopping, but she would require an attendant most times to accompany her. She has normal life expectancy. The Beneficiaries Wahidah is presently aged 13 years. She attends the Thursday Island High School where she is in grade 8. She is described as a bright child who is progressing well with her studies. She wishes to go to boarding school in Townsville next year. It is deposed that it is likely that she will secure sufficient grades to enable her to undertake tertiary studies in the future. She is in excellent health. She resides with her mother and her mother's husband, David Richardson, in the house in which she resided while her father was alive. Mrs. Sinah Richardson married the deceased in Kuala Lumpur in 1978, and then came to Thursday Island shortly afterwards. her husband was ill. Her health is good. For most of their married life She is now 52 years of age. After the death of the deceased, she became entitled to $25,000 which was in their joint accounts. Her husband is 61 years of age. His net wage is $701 per fortnight. They do -- 18 of 21 -- I, 14 not pay rent,· a11~•.:·i..~1ey have carried out improvements to the house in which they live to the value of $5,000. She earns approximately $120 per week as income from dressmaking. Her husband bought a house from his own funds for $69,000 which he has placed in their joint names. She and her husband are the joint owners of a house in Babinda. She provided about half the purchase price of $97,000 from the $25,000 in the joint account and savings from her dressmaking. Whether orders should be made Jurisdiction to make an order is conferred bys. 41 of the Succession Act 1981-1983. In the case of Salma, I have no doubt that an order should be made. She is a mentally and physically handicapped person who has received nothing under the will and was in effect simply passed over by the deceased to charitable institutions and the State to provide for her. The claims made by Hassan Bin Tahal and Fatimah Malone are more questionable. They are both adults and they are in receipt of regular monies. They both claim in effect that adequate provision had not been made from the estate for their proper maintenance and support, having regard to the continuous contributions they had made to building up the estate, and to the consequent loss to them, -- 19 of 21 -- 15 and to their need for. provision.to be made for them. In the cas8 Hassa1~ 2in Tahal, I consider that a wise and just father would have compensated him at least for the work he had done in renovating the house. An adult son is prima facie able to maintain himself and special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act. In re Sinnot [1948] VLR 229 at p. 280. I consider that the applicant does have a special claim, and that he has shown that an order should be made in his favour. The position is rather different in the case of Fatimah Malone. She did receive from the deceased an inter vivas gift which might be regarded at least as recompense for work she had done for him. Nevertheless, I consider that she also has shown that an order should be made in her favour. It is clear that the widow and the infant child should have been properly provided for. They must in my view, be given a secure home and provision must be made for the proper maintenance and education of the child. However, having regard to the deceased's means, to the means and deserts of the several claimants, and to the relative urgency of the various claims upon his bounty (In re Allen (1922) NZLR 218 at p. 220, per Salmond J; cited with approval in Bosch -v- Perpetual Trustee Co. (1938) -- 20 of 21 -- 16 AC 463 at p 479) I t:'!Onsider.that provision should be made out of the estate for the three applicants. Order This can best be achieved, I consider, by providing that there shall be paid by the Public Trustee (a) to Hassan Bin Tahal the sum of $20,000, less the amount found owing by him to the Public Trustee in respect of costs; (b) to Fatimah Malone, the sum of $10,000; and (c) that the Public Trustee shall stand possessed of the sum of $75,000 in trust for Salma Bin Tahal. I make orders in these terms. I order also that the costs of all parties, including reserved costs, be taxed as between solicitor and client and paid out • of the estate. I give liberty to apply in case any further question arises in the implementation of this order. -- 21 of 21 --