This collection of decisions of the District Court of Queensland is instructive as to the considerations that need to be addressed if an agreement between disputing parties – intended to be submitted for the court’s approval – is proposed.
In the first – where everything went right – the court was asked to sanction a further provision agreements where three claims for further provision were made for further provision out of Ken Buckton’s estate.
The “modest” estate of $690k was left in equal shares to son Robert, daughter Toni (the joint executors) and stepdaughter Marianne.
Two by daughters from Ken’s first marriage (Teri and Michelle) who had only been left $20,000 each filed claims as did Christopher, a stepson of the deceased’s 2nd wife (she died before Ken) who had been left nothing.
The claimants were all in their 50’s.
An agreement was eventually negotiated that allowed Christopher $60,000 with Robert, Toni, Teri and Michelle sharing equally in the remaining estate and the deceased’s superannuation benefits.
Teri, Michelle and Marianne agreed to bear their own legal costs.
Acting Judge East sitting at Southport was satisfied – after noting their financial circumstances – that each claiming child had “a need and a moral claim” and held that that the agreement was appropriate.
He made orders to give effect to the agreement. [1]
Consider also the case of Jill Peterson – whose husband predeceased her – who died aged 88 in October 2019 at an aged care facility in Nambour leaving a home at Flaxton worth $470,000.
Her will left her interest in a house at Sandgate – which had in fact been sold many years earlier – to adult daughter Sally-Ann with the balance of the estate to be shared equally between her and sibling Paul.
The Sandgate property was sold to finance the purchase of the Flaxton property in which Jill resided with Sally-Ann and her two daughters.
The Court sanctioned an agreement reached between them that gave the Flaxton property to Sally-Ann on the basis that Paul received $100,000.
Judge Glen Cash QC accepted that the agreement was appropriate given their relative financial position, Sally-Ann’s being precarious and Paul’s stable.
It was also noted that the agreement reached largely reflected what the mother had intended in her will but had had failed to reflect by having it revised when the Sandgate property was sold. [2]
Courts will not however “rubber stamp” an agreements if the further provision agreed is inappropriate.
An example of the rejection of an agreement made between disputing parties is where the Public Trustee of Queensland sought approval on behalf of an intellectually disabled woman for to be provided $120k out of her mother’s estate from which she had been left nothing.
Nicolle White’s mother left the entire estate – worth $900,000 – to brother Adam who demonstrated no particular need for a disparate benefit as compared to Nicolle.
Judge Bernard Porter QC in the District Court at Brisbane was not satisfied that the further benefit of $120k to Nicolle was – on the evidence before him – sufficient to meet her needs.
He was particular concerned about the cost of Nicole’s ongoing accommodation needs, any progression of her impairment by reason of her medical conditions, the resources that need to be provided to sustain her quality of life, the effect of changing NDIS funding, her own wishes, and how just $120,000 could adequately provide for these things.
His Honour adjourned the matter so the parties could have time to gather further evidence. It may be that the agreed provision will be revisited as that occurs.
Further agreement was reached in February 2022 and a final order on revised terms that are yet to be published, was made on 15 March. [3]
[1]Groth & Ors v Buckton & Anor [2021] QDC 90, East ADCJ, 28 May 2021
[3]White v White [2021] QDC 321 Porter QC DCJ, 16 December 2021