Claims by Dependents: Treadwell v Treadwell (Qld)

Claims by dependents against deceased estates can be very difficult to prove. In the recent Queensland Supreme Court decision of Treadwell v Treadwell, a dependency claim by infant grandchildren was summarily dismissed. In that matter, there was found to be an insufficient level of dependency, no moral obligation to make provision for the claimant was found and the claim was filed late without adequate explanation. This article outlines what is involved in a claim by a dependent and what the court found in the matter of Treadwell v Treadwell.

Who can make a claim as a dependent?

In Queensland, a claim may be made by a spouse, child or dependent.  A dependant is defined as a person who was being wholly or substantially maintained or supported (other than for full valuable consideration) by the deceased and is:

1. A parent of the deceased person;
2. The parent of a surviving child under the age of 18 years of that deceased person; or
3. A person under the age of 18 years.

Due to the strict criteria under the Succession Act 1981, dependent claims rarely succeed.

The claims by dependents in Treadwell v Treadwell

The above provision was considered in Queensland in the recent Supreme Court case of Treadwell v Treadwell. In that case, a claim was made by the grandchildren of the deceased. Those children were the children of the deceased’s son who was alive but separated from his wife and from whom the deceased was out of contact. Those grandchildren were each under the age of 18.

Post-separation, the son had been in the deceased’s care and resided with her. The grandchildren only stayed at the residence sporadically.  A child support assessment found that they stayed with the deceased for a total of 14% of the time.

The grandchildren’s mother claimed that the grandchildren were dependent on the deceased as they were residing under one roof with the deceased.

The executors sought summary dismissal of the matter.

What is summary dismissal?

Summary dismissal is the procedure of dismissing an application without a hearing.  It is provided for under Rule 658 of the Uniform Civil Procedure Rules.

In Higgins v Higgins [2005] 2 Qd R 50, White J held that summary dismissal:

“…should [not] be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim.  Argument, perhaps even of an extensive kind, may be necessary to determine that the case of the plaintiff is so untenable that it cannot be possible to proceed.”

Further, the court considered that the test was where a case “can be said to be so futile that it ought to be dismissed summarily.” If summary dismissal proceeds, the case can no longer be prosecuted by the court.  The unsuccessful claimant will pay the costs of both parties

Court’s consideration of the claims by dependents

The court determined that there were three issues for determination in Treadwell v Treadwell, namely:

1. Whether the claimants were dependents within the meaning of the Succession Act 1981;
2. If they were dependents, had adequate provision been made for them; and
3. In the absence of adequate provision, should an extension of time be granted.

Determination of dependants

The central issue for the court in Treadwell was whether the grandchildren were substantially maintained or supported by the deceased. The court considered the New South Wales decision of Bowditch v NSW Trustee and Guardian, where Hallen AsJ held that substantially maintained requires “something more than being more than minimally or significantly maintained.”

The court also analysed the circumstances behind why the grandchildren were living with the deceased 14% of the time. The court held that the grandchildren were present because of a concomitant relationship with the father, that is that the deceased was supporting the father and it was necessary because of that support that the grandchildren stayed from time to time.

The court held that the relationship between the claimants and the deceased was extremely limited and was limited to a concomitant relationship. The son had the care of the grandchildren for a very short time.  At best, the court considered that the relationship was a mere grandparent/grandchild relationship that would not give rise to a claim of dependency. The relationship was found to be far short of substantial support and there was found to be no valid claim for dependency.

Adequate and proper provision

The court also considered whether adequate and proper provision had been made. The court was largely guided by the provisions in other jurisdictions, where grandchildren are eligible dependents. Usually, a moral obligation arises where the grandparent acts in lieu of a parent of the grandchild. Further, the court considered that given the size of the estate and the beneficiaries of the estate, that there would be insufficient assets in the estate to meet the grandchildren’s entitlements, even if a moral obligation had been found. Therefore, it was held that the claim was futile.

Extension of time for claims by dependents

The court was also not satisfied that an extension of time application should be made, due to the poor nature of the claim and an inadequate explanation for delay.

Summary

Claims by dependants are extremely difficult to establish.  The claimant needs to fit within strict criteria, establish a high level of dependence and also establish a moral obligation on the deceased’s part to make provision.  This can be extremely difficult to achieve and cases for dependents in Queensland rarely proceed.  Claims of this sought should only be made after legal advice.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.