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COA defers decision on mum’s bid to keep son out of will

The Court of Appeal (COA) has deferred an appeal against a judge’s decision to award $150,000 to one of four sons from their late mother’s estate, despite her explicit attempt to exclude him from her will.

The COA in Brisbane recently adjourned an application by the executor of the will of the late Shirley Lillian Hartley’s appealing a Cairns District Court judge’s decision to award her son – Craig Andrew Hartley – a portion from her estimated $1.2 million estate.

The court was told Shirley Hartley had attempted to exclude Craig from benefiting from her estate in an emotional statutory declaration in which she claimed he had been a “big disappointment” to her and “done nothing to help me during my illness but cause me a great deal of stress”.

The COA – comprising Justices Philip Morrison, John Bond and David Boddice – last month adjourned the appeal on the grounds the judge who awarded the sum – Judge Dean Morzone QC – had yet to make his final orders to address issues in the application before him.

The COA, in its 10-page written decision published on 27 May, noted Shirley Hartley had died on 4 June 2016 and was survived by her sons Shane, 52, Peter, 51, Craig, 49, and Damien, 45.

“(Ms Hartley’s) last will had been made on 2 March 2015 at a time when she was extremely ill with cancer and facing a poor prognosis,” the court said.

“By that will, she bequeathed three house properties to Shane, Peter and Damien; left a car to Shane; divided any residue of her estate between Shane, Peter and Damien, but made no provision for Craig.”

The COA said the reason no provisions were made for Craig were explicitly detailed in a statutory declaration Ms Hartley provided on the same day she executed her last will.

Ms Hartley’s 2015 sworn declaration says:

“I have purposefully left Craig Andrew Hartley out of my Will and do not wish him or his girlfriend to benefit from my estate.

“During his lifetime he has had plenty of money given to him at all times. I have purchased him and his girlfriend a vehicle recently as well.

“He is currently addicted to the drug ICE and resides in a hovel with his girlfriend who is also on drugs and a chronic alcoholic.

“Craig has recently been in prison for his crimes which include breaking and entering, drug possession and assault. I have a restraining order on him.

“He has recently broken into my home and stolen from me which is why I took the restraining order out on him.

“I do not wish him to benefit at all from my estate as he is a big disappointment to me and has done nothing to help me during my illness but cause me a great deal of stress.

“I have had the opportunity of taking legal advice in this area of law and have been advised that unfortunately there is no sure [way] that I can ensure that Craig does not take any benefit from my estate.

“I am hopeful that a statutory declaration written by me just prior to my death will deter the court from making any order which will allow Craig and his girlfriend to spend my hard earned money on drugs to destroy not only their lives but their daughters as well.”

Following an application by Craig Hartley for proper maintenance and support and after a two-day trial at Cairns in May last year, Judge Morzone on 14 December 2021 decided Mr Hartley was entitled to $150,000 from his late mum’s estate.

The COA said: “The primary judge (Morzone) published written reasons for judgment explaining his reasons for concluding that he would make an order that further provision be made for the proper maintenance and support of the applicant in a specific bequest of $150,000, leaving the residue of the estate to be shared equally between the remaining beneficiaries.

“Some complexity attended the formulation of the terms of the order because the net value of the estate was only about $1.2 million and the only significant assets in the estate were the three houses which had been left to Shane, Peter and Damien.

“(Judge Morzone) had determined that he required further submissions to be made before settling the terms of the order to be made to give effect to his intention to order a pecuniary provision in favour of the applicant before him.”

On 19 January, 2022, a notice of appeal was filed on behalf of the executor contending there had been an error in Judge Morzone’s decision to order a pecuniary provision in favour of Craig Hartley and seeking to reverse it.

The COA said that, because Judge Morzone had not yet made any final orders, it was open to the parties to make an application for him to reopen proceedings to correct any perceived “errors”.

“It would be open to the primary judge (Morzone), of his own motion, or upon application by a party, to reopen the proceeding before him to correct the errors which we have identified and to exercise his discretion on a proper basis, because it has long been the law that a court may review, correct or alter its judgment at any time until its order has been perfected,” the COA said.

“The further hearing of the present application is adjourned to a date to be fixed.”

Read the decision.

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