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  • Unreported Judgment

In the matter of the Estate of the Late Petra Reberter Michelle Bell

 

[2019] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

In the matter of the Estate of the Late Petra Reberter Michelle Bell [2019] QDC 259

PARTIES:

BRIAN BELL

(Appellant)

v

ESTATE OF THE LATE PETRA REBERTER MICHELLE BELL

(Respondent)

FILE NO/S:

37/17

DIVISION:

Civil 

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

8 November 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

8 November 2019 

JUDGE:

Cash QC DCJ

ORDER:

Order as per the amended draft.

CATCHWORDS:

CIVIL LAW – APPLICATION– PROPER MAINTENANCE AND SUPPORT – where the applicant was married to the testator for nearly 50 years – whether the applicant was left without adequate provision for maintenance and support – where persons with interest include children - where estate is modest.

LEGISLATION:

Succession Act 1981 (Qld) s 41(8)

Public Trustee Act 1978 (Qld) s 59
Uniform Civil Procedure Rules 1999 (Qld) r 98

COUNSEL:

T Wakerley for the Applicant
D Morgan for the Litigation Guardian
M Campbell for the Respondent

SOLICITORS:

Kruger Law for the Applicant 
Crouch and Lyndon Lawyers for the Respondent
McCullough Robertson for the Litigation Guardian

  1. [1]
    HIS HONOUR: Petra Bell died at Nambour on 11 July 2016. She was survived by her husband, Brian, who is the applicant, her daughter, Fiona, and her son, Clint. Clint has two children, “J” and “M”. Under the terms of Ms Bell’s will, she bequeathed a life interest in her home at Little Mountain to the applicant. The remainder interest was to be distributed to her children and grandchildren, and the residuary of the estate was to go to the applicant. The house was jointly owned by Ms Bell and the applicant, but in the somewhat unusual arrangement that she held 99 per cent of the property and the applicant 1 per cent. The house is worth about $525,000, but there is a mortgage of nearly $200,000. The only other substantial assets of the estate are a Toyota LandCruiser valued at $30,000 and a caravan worth $25,000. The net value of the estate is probably around $360,000.
  1. [2]
    The application obviously is one which falls within the jurisdiction of the District Court, as it concerns a claim for less than $750,000. The applicant, Mr Bell, was appointed executor, but has renounced probate and execution of the will, with the result that the present respondents became the executors. There has not been a grant of administration, but that is not a bar to the present application (see Succession Act 1981, section 41(8)).  The applicant claims inadequate provision has been made for him out of the estate.  It is necessary to exercise the discretion conveyed by section 41 of the Succession Act.  While the parties have agreed on a compromise of the application, the persons with an interest under the will include Ms Bell’s two grandchildren, who were not yet adults.  This creates an additional consideration.  Pursuant to section 59 of the Public Trustee Act, any compromise or settlement of an action or claim brought by a child should be sanctioned by the Court. 
  1. [3]
    While in the present matter, the children are interested parties rather than claimants, the sensible practice has developed of seeking the Court’s sanction in such circumstances. Seeking sanction is also consistent with rule 98 of the Uniform Civil Procedure Rules.  In determining the application for family provision, pursuant to section 41 of the Act, the cases indicate that a two-stage process is employed.  First, the Court must determine the jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support.  The Court will then determine what provision ought to be made in the circumstances.  In doing so, the Court is asked to exercise the discretion.  The agreement of the parties is a matter of significance and should be afforded considerable weight that it is not determinative.  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. 
  1. [4]
    The evidence in this matter consists entirely of affidavits. Ms Bell’s adult children have not put on any evidence, and have agreed by deed to compromise the action. The facts necessary for the orders sought might be briefly summarised. The applicant is 73 years old. He was married to Ms Bell for nearly 50 years. They lived together throughout this time in various places and raised their children, Fiona and Clint. The applicant and Ms Bell also came to be the carers for Clint’s two children when Clint fell into drug use and spent a period of time in custody. Of the grandchildren, J is 17, and unfortunately has faced difficulties in his life. His needs are assessed as being high. M is 15 and appears to be doing well. Prior to the global financial crisis in 2008, the applicant and Ms Bell had a considerable amount invested in a self-managed superannuation fund. The financial crisis depleted that fund substantially, and when Ms Bell passed, there was only $41,000 in the fund. The arrangement whereby Ms Bell held 99 per cent of the Little Mountain house came about as a result of the applicant providing personal guarantees to lenders concerning real estate investments. It was intended as a protective measure.
  1. [5]
    The applicant’s current assets are minimal. His 1 per cent share of the house is worth a little bit more than $5000. He has about $160,000 in bank accounts, and a car worth, perhaps, $5000. His income is a pension of $405 per week, all of which goes to living expenses and a modest repayment on the mortgage. The applicant is at the moment in reasonably good health, given his age, but he deposes to significant distress and concern about how he will care for himself in the future. The proposed settlement is to the following effect. The Little Mountain property will be sold. After the costs associated with the sale are paid the applicant will be given his 1 per cent share of the net proceeds. From the balance, $45,000 will be held by the Public Trustee for J until he turns 21. Similarly, $28,750 and a sapphire and diamond ring bequeathed to M by Ms Bell will be held for M until she turns 21. The applicant will bear his own costs of the proceedings, costs of the litigation guardian will be fixed at $25,000, and the executor’s costs will be paid from the residue of the estate. The applicant will then receive whatever remains after these distributions.
  1. [6]
    The applicant’s financial position is not as precarious as some. It is not clear to me that if the matter were contested, the applicant would succeed in obtaining the orders sought. But that is not the most relevant consideration. The estate is modest, and litigation would consume a substantial part of it. As has been put on behalf of the children, it is better that they receive a smaller portion of something now than a larger portion of nothing later. In the circumstances, I am satisfied that the proposed compromise is in the best interests of the children. For these reasons, I will make orders in terms of the amended draft, which I will initial and place with the papers.

 

 

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Editorial Notes

  • Published Case Name:

    In the matter of the Estate of the Late Petra Reberter Michelle Bell

  • Shortened Case Name:

    In the matter of the Estate of the Late Petra Reberter Michelle Bell

  • MNC:

    [2019] QDC 259

  • Court:

    QDC

  • Judge(s):

    Cash QC DCJ

  • Date:

    08 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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