Bennett, Re; Re Bennett [1991] QSC 200

10 20 30 IN THE SUPREME COURT OF QUEENSLAND CHAMBERS BEFORE MASTER WHITE BRISBANE, 5 JUNE 1991 No. 231 of 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Report_ing Bureau. ) IN THE MATTER OF the Succession Act -and- IN THE MATTER OF the Will of HAZEL MAY BENNETT, late of Villa 9, Lindsay Gardens, Buderim inthe State of Queensland (Deceased) -and- IN THE MATTER OF an application by CAVANAUGH LEO OLDHAM BENNETT under Part IV of the said Act JUDGMENT MASTER: The applicant, Cavanaugh Leo Oldham Bennett, has applied for adequate provision for his proper maintenance and support out of the estate of his late wife, Hazel May Bennett ("the testatrix") who died at Buderim on 10 20 30 40 40 50 60 22 January 1991. By her will dated 26 October 1990 and codicil thereto dated 14 November 1990 the testatrix appointed her solicitor as her executor and trustee. She made specific bequests of items of personal property of no particular value to various persons and sums of money to others (excluding the amount to the applicant) amounting to $16,000. For the applicant she provided, as follows, in clause 3(a):- "AS TO my motor vehicle and the sum of FIVE THOUSAND DOLLARS ($5,000) FOR my husband and I DECLARE that I havemade no larger provision for him on Govt. Printer, Qld. 1 50 60 -- 1 of 13 -- 10 accgunt of the substantial financial assistance I have during our married life afforded him." The rest and residue of her estate was to be employed by her trustee as a trust fund to subsist for ten years, the income of which was to be paid, at the absolute discretion of her trustee, "to such individuals groups clubs societies associations whether the same be incorporated or not companies local authorities or Government instrumentalities whose purpose includes the welfare and care or promotion of the welfare and care of animals on the Sunshine Coast ... " At 20 the conclusion of the stipulated period her trustee is directed to distribute the capital of the trust amongst the same individuals or bodies at his discretion. The estate comprises jewellery valued at $10,645; $326,275.97 in funds deposited with the National 30 Australia Bank at Buderim - a little over half of those funds are available at call and the balance on maturity at various dates during 1991 - and the lease of a villa at Lindsay Gardens, Buderim with a realiseable value of about $75,000. The bequests of specific items have not been 40 valued and being things like clothes and ornaments they would not add appreciably to the value of the estate. The liabilities of the estate are deposed to by the executor to be the legal costs of this application and a possible variation of the testatrix's taxation assessment. Probate 50 of the will and codicil has not been granted. The applicant was born in April 1910 and is now aged 81 years. The testatrix was aged 80 years and she died in January this year. I must say something about the financial history of their --~6=0-+-'--'.__._~a~t~i~o~n~sbip. Both the applicant and the testa Govt. Printer, Old. 2 10 30 40 50 60 -- 2 of 13 -- 10 20 30 40 50 60 married twice previously. The testatrix had no children and, it seems, has no surviving prior spouse. The applicant has three children from a previous marriage - one son in his mid-50s who is married with two adult children and who lives in New Zealand with whom the applicant is in regular contact. He also has two daughters whom he has neither seen nor heard from since he separated from their mother some 40 years ago. The applicant and the testatrix both come from New Zealand and commenced living together as man and wife in 1962. When they were free to do so they married in 1968. The applicant had 10 2, 000 pounds with him when he arrived in Australia 20 and the testatrix he describes as "coming from a very weal thy family", but that he did not know of her assets. The applicant used this money to purchase a car, and for living expenses and rent until he obtained employment and a house was purchased. The testatrix worked as a hairdresser for about three months after they arrived in Australia, but thereafter was not employed gainfully for the rest of her life. The applicant obtained a position as a salesman with ABC Blinds at the Gold Coast and shortly thereafter became its manager. The applicant and testatrix commenced renting a house at Benowa on the understanding that if they subsequently purchased it the rental already paid would be deducted from the purchase price. Rent was initially paid from the savings of the applicant referred to above and after he commenced employment from his wages for some months. The testatrix's family then provided some 3,000 pounds which was used to purchase the house, the legal title to which was in the testatrix's name. They lived in that house for 11 years. The applicant established an extensive garden, made improvements to the home and carried Govt. Printer, Old. 3 30 40 50 60 -- 3 of 13 -- 10 20 30 out all maintenanc-e on· it. His ,salary was used for everyday needs, for a motor vehicle and for furniture. In 1971 a house was purchased in Shore Street, Southport for $23,500 with moneys provided to the testatrix by her family. It was p-urchased in her name. The first house at Benowa Street was rented for a few months and the rent paid into an account in 10 joint names until that.house was sold. for $17,000 and the sale moneys deposited into the testatrix's bank account alone. The applicant again · established gardens - laying lawns, planting fruit trees and laying garden beds. He organised and paid for a six foot fence around the property and maintained the house and garden throughout the period that they lived there until .October 1989. The applicant remained in employment with ABC Blinds until 1982 when he retired aged 72 years. His wages were paid into an account operated by himself and the testatrix 30 and from this account were drawn moneys for household expenses. It appears that from about 1980 the testatrix received regular sums from a family inheritance. By the time the applicant retired in 1.982 he had managed to save about $11,000. He received $6,000, approximately, of accumulated holiday pay 40 40 and $2,500 from a small insurance payment. In 1980, although still working, the applicant and his wife received a partial age pension, but with an increase in the testatrix's assets in 1984 that ceased. After the applicant ceased work the testatrix gave him $100 per week which was 50 50 used to pay for groceries and other household items. The applicant used moneys which he had saved to supplement the $100 and sometimes, it seems, the testatrix overlooked giving him that money. By the time of her death only a few hundred dollars remained of his savings; In 1988 the testatrix ~ ~ Govt. Printer, Old. 4 -- 4 of 13 -- 10 20 travelled to Buderim, •visited Lindsay Gardens and purchased a unit there with her own money. The applicant remained in Southport after she moved to Buderim in order to sell the house and to maintain the property. The testatrix had taken enough furniture and utensils to furnish the unit. She became ill during this period and was hospitalised on several occasions. The applicant was finally able to arrange the sale of the property and some of the remaining furniture for $145,000 and he sold a small organ for $3,000 all of which moneys were paid into the testatrix' s account. The applicant packed up and 10 joined her at Lindsay Gardens. 20 After the testatrix died the applicant had no assets save the few hundred dollars in his account and, strictly speaking, nowhere to live. The testatrix had purchased the lease of the unit until her death for $100,000 plus monthly outgoings and an annual levy. The 30 30 scheme, in brief, was and is that her estate receives back the 40 capital purchase price less annual administration costs and legal costs. Mr. Nettleton, the executor, states that this will return about $75,000 to the estate when the lease is sold. The applicant has continued to reside in the unit by a "grace and favour" gesture on the part of the management and the executor. The executor has paid two monthly levies since the testatrix's death and two remain outstanding. The applicant applied for, and now is in receipt of the age pension and receives $153 per week. He sets out his weekly 40 50 50 needs which, not surprisingly, almost subsume the whole of that amount. I turn now to the personal relationship between the applicant and the testatrix. The applicant deposes to an excellent relationship. It appears that the testatrix w w Govt. Printer, Qld. 5 -- 5 of 13 -- 10 20 30 40 50 60 suffered from some form of· dermatitis of the fingers attributable to her hairdressing. Early in their relationship she was advised to keep her hands out of water and, accordingly, the applicant undertook all of the cooking, washing up, gardening, laundry and cleaning of the house. Whilst he was working the testatrix employed someone one half _a day a week to do _the heavy ,cleaning, but after his retirement the applicant did everything including the shopping. Whilst the testatrix was alone at Buderim she employed a girl to _assist her one day per week in the unit, but after the a~plicant joined her he again did all of the domestic work. The .last year or so of her life ( the testatrix died of lung cancer) the applicant attended to all of her personal needs, including bathing. In oral evidence he expressed great affection for his late wife. I am not left to rely on the applicant's own assessment of that relationship, however. The executor has deposed that the testatrix described him as a" sponger" on her bounty. Neither the testatrix nor the applicant were known to the executor prior to the testatrix approaching him in confidence, that is, unknown to the applicant in mid-1990. is clear that the testatrix was most anxious to keep contents of her will from the knowledge of the applicant. It the Mr. and Mrs. Gardiner, former neighbours of the applicant and the testatrix who knew them for more than 20 years, have each sworn an affidavit. They were social friends, belonging to the same golf club. They confirmed that the applicant was devoted to the testatrix and did all of the domestic work. The testatrix was described by Mrs. Gardiner as playing bridge everyday, doing little about the house and being "extremely • Govt. Printer, Old. 6 10 30 40 50 60 -- 6 of 13 -- 10 20 30 40 spoilt". Mr. Peers has sworn an affidavit and has known- the applicant for 25 years and knew the testatrix for a similar period. He and the applicant were golfing companions and he regularly called at the house before and after golf. He deposes to seeing the applicant make meals and wait upon the testatrix. In paras. 6 and 7 he deposes: "I would describ~ Cavanaugh as a most attentative husband and a 'slave' to his wife. Often when I was there I would see Cavanaugh make the beds and also take his wifebreakfast in bed. He would also do the laundry andwashing-up. During the time I visited the house I did not see Hazel do any housework or assist Cavanaugh with the meals. I would describe Hazel Bennett as a selfish woman who was only concerned about herself." Mrs Bailey, a resident of Lindsay Gardens, has deposed to observing the applicant's behaviour as "stoic" in relati"on to his wife. The applicant and his wife had an active social life celebrating birthdays and other occasions with visits to restaurants and active involvement at the golf club at Southport for 20 years. The testatrix was an active member of her bridge club which involved social occasions for them both. A word must be said about the applicant's health. I have a report jrom Dr. Michael Hogg, a general physician, and Dr. P. Eliadis, a clinical haematologist and medical oncologist. The applicant has a locally advanced squamous cell carcinoma of the head and neck. He had a carcinomial so mass excised in 1958 and 1964. In 1990 he had further an excision and radiotherapy. In Dr. Eliadis' opinion, the tumour is inoperable and further radiotherapy is inadvisable. His opinion is that the applicant should be offered a course of systemic therapy, and Exhibit 60 GovL Printer, Old_ 7 10 20 30 40 50 60 -- 7 of 13 -- 10 20 4 sets out the treatm,ent :i;,roposed _and its cost. The applicant suffers no pain at the present time and having survived his limited diagnosis of life expectancy in July 1990, he. says that he still feels extremely well save for some arthritis in one knee. I set out Dr. Eliadis' conclusions with respect to the applicant's life expectancy. "Mr. Bennett has obviously done much better thanthe expected median survival as predicted from these studies. It is also important to emphasise that Mr. Bennett has not been offered any systemic therapy, i.e., chemotherapy, that sometimes can produce very gratifying response in some patients with good disease control. It is not inconceivable that Mr. Bennett may survive for many more months and possibly even longer. I also believe he should be offered a course of systemictherapy. If he has a good response to therapy, this may further influence his prognosis for the better." Dr. Hogg's report was put in evidence on behalf of the 30 executor. Whilst not an expert in oncology, he concluded: 40 "In conclusion, therefore, this man's life expectancy may well in fact be prolonged given the absence of systemic spread of the tumour, and the absence of involvement of vital structures adjacent to the neoplasm. His life expectancy may well be prolonged of the order of 6 to 12 months, indeed~ it. is my belief that further opinions should be obtained with respect to treatment in the form of chemotherapy as it is not totally inconceivable that a protracted remission could be achieved.-" Mr. Samios, who appears for the executor~ has no hesitation in conceding that some provision must be made for the applicant with respect to accommodation, a capital sum, 50 and weekly expenses. Needless to say, Mr. Smith for the applicant advances a similar proposition, but the issue is, how much? It is not suggested that I should interfere in the bequest to named individuals, and I do not. They are an appropriate reflection of the testatrix's desire to 60 Govt. Printer, Old. 8 10 30 40 50 60 -- 8 of 13 -- recognise in some small measure persons for whom she felt regard or to whom she owed a debt. The principles are clear and there is no dispute as to them. It is plain that I may not substitute my notion of what would have been proper for what the Succession Act 10 10 20 30 40 provides. As was observed by Dixon C.J. in The Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 C.L.R. 9 at 19: "All authorities agree that it was never meant that the Court should rewrite the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only prima facieeffect, the real dispositive power being vested in the Court." As the Full Court of this Court has observed in Re Pereira,(unreported) No. 643 of 1987 of 8 December 1988: "There is no principle or guideline in this areaof law, namely family provision, which decrees that a widow or widower who is not young is never to receive a large capital sum or a sum which forms a substantial part of an estate. As the above quoted extract from Mason J.'s judgment shows 'circumstances are infinite in their variety and orders must be moulded to the circumstances ofthe particular case in order to insure that the provision which is made is adequate for the proper maintenance' of the applicant where that is possible." Where there is a comfortable estate and no other claims upon it, it is quite inappropriate that the taxpayer should be asked, as it were, to bear the burden of the applicant's care and maintenance; See Re Pope (1975) 11 20 30 40 so 50 60 S.A.S.R. 571. It seems to me that the applicant ought not to be bound to the villa at Lindsay Gardens. There is no power in this Court, in any event, to compel the management committee to permit him or the executor to purchase the lease. Although the applicant indicates that he wishes to remain in Govt. Printer, Qld. 9 60 -- 9 of 13 -- 10 20 30 40 Australia, he ought not to be bound forever to that intention, as his only family live in ·New Zealand. Further, he may wish to return to the Gold Coast where he has many friends and has lived for 25 years or so. Since there is no reason to suppose any awkwardness in his relation to the executor, it seems that his accommodation needs may best be met by giving him a life interest in some form of accommodation. I propose to alter the will so as to give the applicant for his lifetime accommodation to be purchased for him by the trustee out of the estate at the choice of the applicant to the value of $150', 000. This figure is chosen as nearly as possible to represent the standard of accommodation which he and the testatrix had enjoyed together at Southport and more latterly at Buderim. If the applicant's desires or needs require it, the trustee can substitute that chosen accommodation for some other in due course, that is, I envisage that the applicant might choose a unit at Southport initially for a period and then might need to have that sold and to move to a retirement home. I also propose that the outgoings such as rates, insurance, and repairs be paid out of the estate. The dwelling will be an asset to the estate which will, in due course, be utilised for the welfare of animals. I have concluded that a capital sum of some magnitude 10 30 40 50 50 is called for. The applicant has no assets due completely to the drain on his modest resources by his marriage. He was quite justified in expecting that his wife would make proper provision.for him in tier will. As I have mentioned, there is no reason why the taxpayer should support him. In ~ ~ Govt. Printer, Qld. 10 -- 10 of 13 -- 10 no small measure has the applicant enabled the testatrix to leave such a substantial estate. I have outlined the facts above. With her dermatitis and her own personality making her unable to assume most domestic duties, the applicant has, by assuming those duties, saved her from outlaying her inheritance in wages for such assistance. Indeed, it seems that apart trom pr~viding the cash for their homes, she made little or no cash contribution to the joint venture of their relationship and was content that all of his wages should be so subsumed until his retirement at 72, when she 10 20 20 contributed $100 per week for household expenses. Her money was able to be invested in appreciating assets; his went in daily living. Further, when she became ill, he gave her devoted nursing care, thus saving a further drain upon her funds. In addition, he developed, maintained, and enhanced the house 30 properties, I accept that he gave willingly of his money, time and devotion to his wife. He wishes to visit his family in New Zealand. The last visit by him was some 15 or so years ago, although contact continues with them. He has lived a pleasant and 30 40 40 comfortable life and there is no reason why he should not continue to do so. On a more serious note, he wishes to avail himself of every possible cancer treatment and he should be able to do so. He may wish intensive nursing treatment 50 50 at home rather than at institutions, which is expensive. The testatrix was able to have such care due to his devotion, and there is no reason why he should not do so. There is absolutely no competing claim on the estate. There is no hint that the testatrix had any interest in or 60 60 Govt. Printer, Old. 11 -- 11 of 13 -- 10 20 30 philantrophic pursuit during her lifetime nor that she evinced any particular interest in animals. She has not done more than express a wish to benefit the animals of the Sunshine Coast of Queensland leaving it entirely to her executor's discretion as to how that may be accomplished. If she was of the view that the applicant did not have long to live when making her will, she certainly made no provision for his comfort or treatment in his last months or years~ In any event, I may take into account events that have :occurred since her death, namely, his survival and the reports of the two doctors to which I have referred. (See White v Barron (1980) 144 C.L.R. 431 at 449). In any event, the. applicant's long history of cancer and his general robust health were well known to the testatrix. The applicant has indicated that he has a sentimental attachment to the testatrix's personal jewellery and would like to purchase it from the estate. Mr. Smith urges that I should order that he have that jewellery as part of my order. That would be, in my opinion, an inappropriate exercise of my discretion and not within the provisions of 10 30 40 40 50 60 the Succession Act. On reflection, the applicant may not need all of the testatrix's jewellery to satisfy his emotional needs. One or two pieces may be sufficient. He can approach the executor and purchase what he wishes from the estate. After the order which I shall make, there will be ample funds available to satisfy the testatrix's wishes with respect to the care and welfare of animals on the Sunshine Coast of Queensland. In considering this matter I have been assisted by decision of Senior Master Horton Q.C. in Re Roddick Govt. Printer, Old, 12 50 60 -- 12 of 13 -- ' ' 10 20 30 40 50 60 (deceased), unreported decision, 0.S. Number 1144 (1988) of 17 May 1989. Accordingly, the will and codicil of Hazel May Bennett dated 26 October 1990 and 14 November 1990 respectively be read and construed as if Clause 3(a) were deleted and new Clause 3(a) inserted in lieu in the following terms: "(a) For my husband- (1) the sum of $120,000 absolutely, and (2) my motor vehicle, and (3) a unit or other accommodation of his choice to the value of $150,000 for his use absolutely during his lifetime and the rates, insurance andmaintenance expenses thereof to be paid from my estate." It is further ordered that the costs of and' incidental to the originating summons of both parties be taxed and be paid from the estate on a solicitor and client basis. ordered that there be liberty to apply. Govt. Printer, Old, 13 It is further 10 20 30 40 50 60 -- 13 of 13 --