DISTRICT COURT OF QUEENSLAND
CITATION:
Lindsay Dean Connelly v Brian John Connelly and Lindsay Dean Connelly [2018] QDC 197
PARTIES:
Lindsay Dean Connelly
(Applicant)v
Brian John Connelly
and
Lindsay Dean Connelly
(Respondents)FILE NO/S:
D51/18
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court at Maroochydore
DELIVERED ON:
28 September 2018
DELIVERED AT:
Maroochydore
HEARING DATE:
Decided without oral hearing
JUDGE:
Cash QC DCJ
ORDER:
THE ORDER OF THE COURT IS THAT:
1. The last will of Karlene Gay Connelly made on 6 August 2012 be read and construed to provide for a legacy to the applicant of an amount of $87,500.00.
2. The applicant is to be responsible for his legal costs of and incidental to this Application.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT WAS LEFT WITH INSUFFICIENT PROVISION – CLAIM BY TESTATOR’S SON –where the applicant is the testator’s child – where the applicant was the testator’s primary carer for more than 5 years – where the application was undisputed – where applicant is in poor financial position – where testator left majority of estate to husband, the applicant’s stepfather – where the estate is relatively modest – whether the applicant was left with inadequate resources – whether the testator failed to make adequate provision for the proper maintenance and support of the applicant.
LEGISLATION:
District Court Act 1967, s 68(1)(x)
Succession Act 1981, s 41
Uniform Civil Procedure Rules 1999CASES:
Bartlett v Coomber [2008] NSWCA 100
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191SOLICITORS:
McColm Matsinger Lawyers for the applicant
Ryans Solicitors for the respondent
Karlene Gay Connolly, late of Coolum Beach, died on 12 August 2017. She was survived by her husband Brian John Connolly, a respondent to this application, and four sons, Brendan Jones, Daniel Jones, Lindsay Dean Connolly and Corey Connolly. Lindsay is the applicant and also respondent as co-executor under the will of the deceased. In her last will the deceased left to Lindsay a half share in a 2004 Holden Commodore.[1] The rest of the estate was bequeathed to her husband Brian. Lindsay made application for adequate provision for his proper maintenance and support.[2] A grant of probate has not been sought, but this is not a bar to the application.[3] At a conference in July 2018 the parties agreed that Lindsay should receive a legacy of $87,500 from the estate. Subsequently, the applicant proposed the application be dealt with without oral hearing. The respondent agrees with and adopts the written submissions of the applicant in support of an order for adequate provision.[4] None of the exceptions in r 489 of the Uniform Civil Procedure Rules 1999 apply. I must therefore determine the matter without an oral hearing and, as I propose to make an order to give written reasons for my decision.[5]
[1]The other half share was left to Corey. The car is worth about $2,000.
[2]Succession Act 1981, s 41
[3]Succession Act 1981, s 41(8)
[4] The deceased’s other three sons, as potential claimants, have been advised of the proceedings and have not indicated they wish to make any application.
[5]Rule 498.
Background
The evidence in this matter consists entirely of affidavits and has not been disputed.
The deceased died in hospital on 12 August 2017 aged 57 years. Before her admission to hospital she lived with her husband Brian at a house at Coolum Beach. She married Brian when she was 39 years old and with him bore one son, Corey. Before her relationship with Brian the deceased had been married to another man. There were three sons of that relationship, Brendan, Daniel and the applicant Lindsay, who later adopted the surname of his stepfather. Lindsay is 29 years old. He describes his biological father as violent and abusive. His father and mother separated when he was about three years old. He recalls that Brian Connolly first lived as a tenant in the house he shared with his mother and siblings. Brian and the deceased later formed a romantic attachment and married, probably in 1999. In 2003 the deceased purchased the Coolum Beach house in her name using funds from her own mother’s estate and from the sale of a house in Newcastle. The house at Coolum Beach was initially unencumbered but later mortgaged to secure money advanced to assist Brian in his business. Some $80,000 is still owed and the house is valued at about $650,000.
The applicant lived with the deceased until she died in August 2017. He suffered sexual abuse as a child and a back injury when he was a teenager. As a result he suffers from post-traumatic stress disorder, anxiety and depression, and degenerative osteoarthritis. When the deceased became aware of the sexual abuse suffered by the applicant she became especially protective of him. The applicant has not been in paid employment since 2005 and has limited prospects of securing such employment in the future, despite the assistance of an employment service. Since his mother’s death he has lived in shared accommodation where he pays $270 per fortnight in rent. His only income is $550 per fortnight in NewStart allowance.
In early 2012 the deceased fell ill and was hospitalised. She came to be an inpatient at Nambour Hospital for about a month, during which time the applicant visited her daily. He was then 23 years old. When it was discovered she had suffered a stroke she was transferred to Brisbane where she spent a further month in hospital. The applicant remained her primary source of support – her husband Brian was unable to attend often due to work. Upon her discharge the deceased suffered some significant loss of vision, could not stand on her own and laboured under slurred speech. She required a wheelchair to move around. The applicant became her primary carer, organising the necessary assessments to obtain for her a pension and equipment to assist in her care. He took care of all of her day to day needs except showering, and this only because of understandable modesty on the part of the deceased. In the time between the deceased suffering the stroke in April 2012 and her death in August 2017 the applicant was with her for all but five days.
During this time the deceased’s husband retained control of her finances. This appears to have been a source of tension between the applicant and his stepfather Brian. In July 2017, the deceased’s health deteriorated and she was in due course placed in palliative care, passing away in August 2017. By this time the applicant was 29 years old, unemployed, single and had been primarily engaged in the care of his mother for more than five years. Conflict between the applicant, his stepfather Brian and his brother Corey led the applicant to move out of the home at Coolum Beach. He now lives in a share house and has no assets but for his share of the 14 year old Commodore. He struggles to support himself and to pay for rent, food, clothing and medication.
In her last will of 6 August 2012, the deceased appointed her husband Brian and the applicant as executors. She gifted any motor vehicle she owned at her death to Lindsay and Corey in equal shares as tenants in common, and gave the balance of her estate to her husband Brian. The estate is comparatively modest consisting principally of a house at Coolum Beach valued at around $650,000. Approximately $80,000 remains owing to ANZ bank and is secured by a mortgage. At the time of her death the deceased held less than $500 in cash and about $4,000 in jewellery and household effects. The net value of the estate has been estimated to be between $500,000 and $600,000. Much depends upon the sale price achieved in relation to the house at Coolum Beach.
The applicant deposes that other potential claimants Brendan and Daniel had little contact with the deceased after 2003. He says that Brendan is employed, married with children, and lives comfortably in Newcastle. Daniel is said also to be employed and lives in Newcastle. Corey, who was apparently closer to the deceased than Brendan and Daniel, is said to be living in Brisbane with his partner. The applicant deposes that Corey is unemployed but capable of work. Corey is expecting a significant inheritance from the estate of his father’s father in a couple of years.
The proceedings
By an application filed on 9 May 2018 Lindsay sought adequate provision be made for his proper maintenance and support pursuant to section 41 of the Succession Act 1981. On 11 July 2018, the parties to the proceedings attended at a conference. They agreed that the applicant should receive a legacy of $87,500 from the estate but would be responsible for his own legal costs. On the same day steps were taken to advise the applicant’s other siblings of the proceedings and their entitlement to participate in the proceedings. To date none of the siblings has indicated any intention to participate. On 6 September 2018, the applicant filed a notice proposing the matter be dealt with without an oral hearing and an outline of submissions. On 13 September 2018 the respondent Brian Connolly, through his solicitors, wrote to the registrar advising that he agrees with and adopts the applicant’s submissions of 6 September 2018.
Proposal for decision without oral hearing
None of the exceptions provided for in r 489 of the UCPR are relevant in these proceedings. The matter is not inappropriate for disposition on the papers and the respondent agrees such should occur. In the circumstances the proposal for decision without oral hearing should be accepted, not least of which because it will avoid the expenditure of additional legal costs from what is a relatively modest estate.
Consideration
The present application falls within the jurisdiction of the District Court as it concerns a claim for less than $750,000.[6] In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed. First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.[7] In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.[8]
[6]District Court Act 1967, s 68(1)(x)
[7]J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths,
Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.
[8]Bartlett v Coomber [2008] NSWCA 100 at [57]-[58], [72], [90]-[91]
The question of whether the applicant has been left without adequate provision is to be answered having regard to the applicant’s financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate.[9] The applicant’s financial position is poor and it seems unlikely to improve. He enjoyed a good relationship with the deceased and indeed was her primary carer for the five years before her death. In contrast Brendan and Daniel seemed relatively estranged and Corey, while closer, was still not as concerned with his mother’s welfare as the present applicant. It is also significant that none of the applicant’s brothers have indicated any desire to participate in these proceedings. From this I take it that they do not suggest they have any better claim than the applicant. The estate is not large and the proposed legacy will account for a substantial portion of it. But the only person directly affected, the deceased’s widow Brian, does not suggest this is a factor that would require the application to be refused. In the circumstances, I conclude that the bequest of only a half share in a 14 year old car has left the applicant without adequate provision.
[9]Singer v Berghouse (1994) 181 CLR 201 at 209-210
The second question is what amount the applicant should properly receive from the estate. This requires consideration of what provision a “wise and just testator” would have made. In the present matter the evidence establishes that there is a proper basis for the settlement agreed by the parties to the effect that the applicant should receive $87,500 and to bear his own costs.
For these reasons I will make an order in the terms of the draft that is exhibit “TJH-4” to the affidavit of Tamsyn June Harris sworn on 6 September 2019.