Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Cerneaz v Cerneaz[2015] QDC 41

DISTRICT COURT OF QUEENSLAND

CITATION:

Cerneaz v Cerneaz & Anor [2015] QDC 41

PARTIES:

JOAN CERNEAZ

(Applicant)

v

MERISA NICOLE CERNEAZ AND MELINDA GAIL CERNEAZ, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SERGIO CERNEAZ (DECEASED)

(Respondents)

FILE NO/S:

2499/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 February  2015

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18 February 2015

JUDGE:

Smith DCJA

ORDER:

  1. That provision be made for the proper maintenance and support of the Applicant out of the estate of Sergio Cerneaz.
  2. That the last will and testament (“the will”) of the Deceased dated 7 March 2011 be amended so it is to be read and construed as follows:
  1. (a)
    Clause 3.1 (d) of the Will be deleted
  2. (b)
    Clause 3.1 (f) of the Will be amended to read as follows:

3.1 (f)I give $350,000 to Joan and I give the rest and residue of my estate to Merisa and Melinda as tenants in common in equal shares

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION

Succession Act 1981 (Q) s 41

Ahearn v Ahearn [1917] St R Qd 167

Bladwell v Davis [2003] NSWSC 882

Bladwell v Davis& Anor [2004] NSWCA 170

Clifford v Mayr [2010] NSWCA 6

Coates v National Trustees and Executors and Agency Co Ltd (1956) 95 CLR 494

Collins v McGain & Anor [2003] NSWCA 190

Collins v Mutton [2012] NSWSC 548 

Elliott v Elliott NSWCA CA 245 of 1984

Ellis v Leeder (1951) 82 CLR 645

Golosky v Golosky NSWCA CA 40012 of 1991

Goodman v Windeyer (1980) 144 CLR 490

Grey v Harrison [1997] 2 VR 359

Hertzberg v Hertzberg [2003] NSWSCA 311

Lawrence v Lawrence & Ors [2004] WASC 90

Luciano v Rosenblum [1985] 2 NSWLR 65

Marshall v Carruthers [2002] NSWCA 47

O'Loughlin v O'Loughlin  [2003] NSWCA 99

Pogorelic v Banovich & Ors [2007] WASC 45

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Rayner v Rayner [2006] NSWSC 335

Re Bourke deceased [1968] 2 NSWR 453

Re Calder deceased [1950] GLR 465

Re Fulop (1987) 8 NSWLR 679

Sayer v The Public Trustee [2009] NSWSC 89

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 221 CLR 191

Yeomans v Yeomans and Anor [2011] QSC 344

COUNSEL:

Mr M Conrick for the Applicant

Ms D Pendergast for the Respondents

SOLICITORS:

Rod Holloway & Co for the Applicant

Robbins Watson Solicitors for the Respondents

Introduction

  1. [1]
    This is an application by Joan Cerneaz (“Joan”) pursuant to s41(1) of the Succession Act 1981 (Q) for adequate provision to be made for her maintenance and support from the estate of Sergio Cerneaz (“Sergio”).
  1. [2]
    Sergio, Joan’s husband, died on 24 October 2012. He had two daughters from an earlier marriage, Merisa Cerneaz (“Merisa”) and Melinda Cerneaz (“Melinda”). His Will appointed them as executors. In essence, he directed that a property situated at 47 Darragh Street, Bracken Ridge, be sold and part of the sale proceeds ($400,000 or the average cost of a three-bedroom townhouse, whichever was the higher) be used to purchase a property as decided by Joan for life. Merisa and Melinda were to have the remainder, and then also the residue of the estate in equal shares.
  1. [3]
    In reaching my decision, I have had regard to all of the evidence and the submissions made by counsel. I also take into account that the onus is on the Applicant to prove her claim on the balance of probabilities.

Applicant’s evidence

Joan’s evidence

  1. [4]
    Joan has sworn an affidavit filed 10 July 2013. She was born on 13 June 1945 and presently is 69 years old. She has no skills for employment (para 13). She says that she and Sergio commenced their relationship in 1991 and in 1994 she moved into Sergio’s house at Bracken Ridge (para 11). They married on 28 October 2000. Before the marriage, she owned a property at Caboolture, the subject of a mortgage (para 15). After marriage, Joan became financially dependent upon Sergio.
  1. [5]
    She sold this property and the money was placed into the following funds (para 16):
  1. (a)
    Colonial Mutual - $59,517;
  1. (b)
    One Path - $42,192;
  1. (c)
    Zurich - $54,751.
  1. [6]
    There are also bank accounts with Suncorp totalling $18,885. She says that she receives about $600 per fortnight from Veterans Affairs and $400 per fortnight from Centrelink. She owns a 2005 model Astra. She has four adult children (paras 16-20).
  1. [7]
    She says that they furnished the house together. She and Sergio had a loving relationship and were members of the same church (para 31). During the time with Sergio she was not allowed to earn an income so he could receive the service pension (para 36).
  1. [8]
    She says that in 1999 he suffered from varicose veins and had a cancerous kidney in 2000 (para 32). She also claims that his children objected to their wedding. Between 2001 and 2005 he was treated for cancer in the lymph nodes. There were other health problems between 2005 and 2006, and in 2008/2009 he had a mini stroke (para 44). She became his fulltime carer, and in 2009/2010 she received a carer’s pension for him because he was ill. In 2011/2012 his health deteriorated and she looked after him. Ultimately he was placed in palliative care at the Prince Charles Hospital and died on 24 October 2012 (para 58).
  1. [9]
    In a second affidavit filed 2 October 2013, Joan says that an email from Merisa (Exhibit JC1) confirms that she lived at the house since the mid-1990s. In response to allegations by Merisa, she says that a person called Kay helped at Merisa’s wedding, as Sergio and Kay were friends (para 7). She alleges that she did the mowing at the property for some three years (para 16). She says that her Caboolture home was sold for $126,640.78 net. She also says (para 42) she did not know why Merisa could not spend more time with her father whilst he was in palliative care. With respect to alleged contributions to superannuation by Sergio, she says this was to minimise tax (para 46). Their advisor was Bruce Beakey from Aon Financial Planning, who advised them to do this. She alleges that there was two payments made as follows:
  1. (a)
    $30,000 – 2000/2001;
  1. (b)
    $20,000 – 2001/2002.

No other payments were made to her by Sergio.

  1. [10]
    Exhibits JC 2 and JC3 are the Aon documents.
  1. [11]
    In a further affidavit filed 31 October 2014, Joan says the effect of the existing will is that she is a captive in a substitute residence for the rest of her life, and if she was to move she would lose her residence (para 7). She now has no permanent home. Also, she is responsible for rates, water charges, insurance and other outgoings (para 8). She has not worked for 20 years and has no fund to guard against emergencies. She says that she suffers depression, eczema, reflux, hypertension, osteoarthritis, autoimmune disease, sleep apnoea and Hashimoto’s disease (para 28).
  1. [12]
    Her income is as follows (para 32):
  1. (a)
    Service pension - $647.81 per fortnight;
  1. (b)
    Aged pension - $471.33 per fortnight;
  1. (c)
    Zurich - $315 per month;
  1. (d)
    Colonial - $246 per month;
  1. (e)
    One Path - $522 per quarter.
  1. [13]
    Her expenses are $529 per week (para 33).
  1. [14]
    She holds the following assets (para 34):
  1. (a)
    Colonial - $64,416;
  1. (b)
    One Path - $44,736;
  1. (c)
    Zurich - $58,031;
  1. (d)
    Shares, Noni B - $892;
  1. (e)
    Shares, Telstra - $3,450;
  1. (f)
    Shares, Tatts - $6,953.
  1. [15]
    Her bank accounts contain $5,457, $1,575 and $12,406 (para 34).
  1. [16]
    In a further affidavit dated 11 February 2015 (para 2), Joan says that she has located a house at Mango Hill which would suit her needs. She has signed a conditional contract for $385,000. Other expenses amount to $7,000. Bracken Ridge would be a more expensive suburb. She says that she has seven grandchildren (para 12).
  1. [17]
    In a further affidavit sworn 16 February 2015 (para 1), Joan says that although she lived with Sergio from mid-1994, she retained her house at Caboolture and attended the house from time to time and stayed overnight until it was sold. She agrees that she withdrew money from Sergio’s bank account when he was in palliative care because she was given the PIN to take it out (para 2).
  1. [18]
    In cross-examination Joan conceded that Sergio was an honest man committed to his family (T1-11.10) . At the time of the marriage Joan was not working and indeed has not worked since 1988. She received the “dole” before the marriage. As to the sale of the Caboolture house she says that $100,000 went into investments and she gave $26,000 plus another $4,000 to Sergio (T1-14.40). She did not contribute to the purchase of the Bracken Ridge property. Expenses for the property were paid for from Sergio’s pension (T1-15.32). After the marriage she became dependent on him. She said she moved in in 1994. Centrelink was advised of this. She conceded that in her affidavit filed 10 July 2013 at (para 8) she swore there were no joint accounts, yet in her affidavit filed 2 October 2013 at (para 25) she said there was a joint account (T1-19.37). I do not consider this difference very significant as it is common ground the money in the joint account was Joan’s. She did not agree that Melinda and Sergio had a close relationship but conceded that the level of her involvement until the late 1990s was them as a “friend’s children” (T1-21.25). She said that Sergio and Kay were good friends only (T1-21.45). She accepted that in the 2000/2001 tax return Sergio did not note her as a spouse (see MNC4 affidavit of Merisa filed 18 September 2013) (T1-16). It should be borne in mind they were not married for the entire financial year.
  1. [19]
    She conceded with reference to MNC6 (affidavit of Merisa filed 18 September 2013) in June 2002 he contributed $20,000 to Colonial for her. In 2001/2002 he contributed $3000 to her for tax purposes; $3000 in 2003/2004 and $50,000 in 2003/2004. She thought the $50,000 was from the sale of her house. There was a further contribution of $3000 in 2004/2005. She accepted in MGC2 (Melinda’s affidavit filed 18 September 2013) there was a contribution by Sergio in the amount of $30,000. Ultimately she said that the 2 lots of $50,000 and 1 lot of $30,000 were hers, and 1 lot of $20,000 came from Sergio (T1-26-T1-35).
  1. [20]
    She had last seen the doctor about 2 weeks prior (T1-37.15). She is seeing Dr Sandstrom, a specialist. She has private health cover and now receives a veteran affairs pension, together with a Centrelink pension, and income from investments (T1-38.30). Her good relationship with the children continued until the present proceedings (T1-39.10). Merisa objected to the marriage in a letter which Joan later shredded (T1-39.40).
  1. [21]
    In 2007 Sergio’s health had deteriorated and he passed out in a shopping centre in 2008. In 2009 he was not allowed to drive for 6 months (T1-40. 20-25). Yet she did not apply for the carer’s pension until 2009. She claimed she was not aware of such a pension. She agreed that whilst Sergio was in hospital before his death she stayed with him during the day and Melinda stayed with him at night. Merisa visited only once. She did not dispute the contact alleged by Melinda in her affidavit (T1-44.22).
  1. [22]
    In her affidavit filed 2 October 2013 she alleged she was not consulted concerning Sergio’s will (para 44). She agreed she was present during discussions with the solicitor about the present will (T1-56.10). She recalls a 3 hour appointment on 9 February 2011. She agrees she was present when Sergio said he wanted her protected. She agreed the reason she has brought the application is because she is concerned about being captive in a house which is not really hers (T1-58.42). She agreed she was happy until Merisa spoke to a developer about a house $50,000 less than the $400,000 mentioned in the will (T1-58.45). She said she had given about ½ of the house contents to the Respondents. There was also a garage sale where items were sold for a total of $3000. She said that Sergio gave her authority to obtain funds from his account. As to the contract she has signed on the property at Mango Hill she does not personally know the vendors. Her solicitor advised her to make the contract conditional. She would need $392,000 to complete. If she received only $350,000 she would need to consider whether she went ahead with the Mango Hill property purchase. She said the girls could have called more often, and Sergio complained as to this, although that is not in her affidavit. She disputed the allegation by Melinda that there was a conversation in March/April 2011 where she complained about being left no money. She said the relationship between Merisa and Sergio was not close but continuing (T1-71.40).
  1. [23]
    She repeated her contention she gave Sergio $30,000 from the house sale (T1-75.45).
  1. [24]
    In re-examination she said that Sergio looked after all the finances. She does not believe that she could work together with Merisa and Melinda if they remained as trustees.

Dr Pokarier

  1. [25]
    Dr Pokarier in his affidavit dated 31 October 2014, said that Joan has had depression since 2000 (para 3).  In a report dated 4th April 2014, he confirmed the complaints Joan has made about her health.
  1. [26]
    At (para 5) he says that Joan’s depression deteriorated especially after April 2011 due to the deterioration in her husband’s health due to metastatic renal cancer.
  1. [27]
    In cross examination he said his last consultation with Joan was on 28 January 2015 and previous to this, 19 November 2014 (T1-49.20). She had also had a hysterectomy in August 2014. Her prognosis was good. Her life expectancy is normal. In re-examination he said she had also seen a GP on 29 January and 22 January 2015 (T1-51.30).

Exhibits 1 and 2

  1. [28]
    In effect Exhibits 1 and 2 are concessions made by Joan that Sergio and his daughters shared a loving relationship and it was the usual sort of relationship between a father and his daughters. There was no estrangement. It is not contended by the Applicant that either Respondent ought not receive a bequest.

The Respondents’ material

  1. [29]
    There is a joint affidavit from the Respondents filed 18 September 2013 in which it was deposed that the assets as at the date of death amounted to $741,215 (para 5). At the time of the affidavit, they amounted to $776,754.31 (para 6).
  1. [30]
    I have been provided a further document which discloses that the assets presently amount to $724,979.99, which takes into account an interim distribution to Merisa and Melinda each of $17,502.38. Taking into account costs, the amount available for distribution is about $664, 979.99 to $679,979.99. This does not seem to be correct because I have been informed the Applicant’s costs are said to be $55,000 and the Respondents’ costs $27,000 for administration and $102,000 to respond to the application.

Merisa’s evidence

  1. [31]
    In the affidavit of Merisa filed 18 September 2013 she says that she was born on 22 July 1967 (para 8). She says that during her childhood the family moved every two and ahalf years, as Sergio was in the RAAF.  In 1975 her mother was diagnosed with cancer.  In 1978 Sergio retired from the RAAF and became the primary carer for their mother.  In July 1983 their mother passed away (para 13).
  1. [32]
    After the mother’s death, Melinda, Merisa and Sergio became very close (para 15). They all contributed financially to the household until they left home. Merisa lived at home until February 1994 when she married. She says that she and Sergio were close and remained close. She married her first husband Marc Blum in 1994 and there were two children, Saskia (born 19 April 1994) and Manon (born 10 September 1998). Marc and Merisa separated in 2002/2003. In 2008 she met her second husband Carlos (para 22).
  1. [33]
    She says that on 17 June 2013 they accepted an offer of $650,000 for the property (para 29).
  1. [34]
    She denies that Joan and Sergio commenced a relationship in 1994, or that Joan commenced living with him in 1994 (para 30). Merisa says that she lived at home until 13 February 1994 when she was married. At that stage Sergio was seeing Kay; indeed, Kay was involved in her wedding. Joan did not move in until October 2000. She further alleges that Joan received $735.91 per fortnight (para 32). She denies that Joan had to furnish the house. She alleges that the night prior to some surgery in 2000, Sergio claimed he was concerned about Joan and Joan should be taken care of, but the house would remain Merisa and Melinda’s. She suggests at (para 36) that Sergio did not really want to marry Joan. She alleges that between September 2011 and January 2012 Joan and Sergio visited her and he was in reasonable health. On 9 October 2012 Sergio was admitted to palliative care at the Prince Charles Hospital on his 81st birthday.  He died 15 days later.  Merisa visited him twice during this period.  She also denied the allegation by Joan that the only contact between them was at Christmas time.  In 2011 Melinda and she attended his 80th.  On 28 December 2010 Sergio told her that he wanted to include a direction in his will that Bracken Ridge be sold and a smaller property purchased for Joan for her to live in.  Joan was satisfied by this.  She also alleges that during the 15 days after her father was in care Joan spent $3,200 from a joint account by way of cash withdrawals (para 52). 
  1. [35]
    She also alleged that Sergio contributed the following amounts to Joan’s superannuation (para 55):
  1. (a)
    2000 - $30,000;
  1. (b)
    2001/2002 - $20,000;
  1. (c)
    2002/2003 - $3,000;
  1. (d)
    2003/2004 - $50,000;
  1. (e)
    2004/2005 - $3,000;
  1. (f)
    2005/2006 - $3,000.
  1. [36]
    Merisa says that her family includes Carlos (born 25 May 1971), Saskia (born 12 April 1996), Manon (born 10 September 1998) and Kailen (born 3 January 2009) [56]. They are all financially dependent on her. Carlos suffers severe depression and suffered another injury in April 2009.
  1. [37]
    She says her financial position involves the following (para 71) :
  1. (a)
    Assets - $617,299;
  1. (b)
    Liabilities - $417,751;
  1. (c)
    Net - $199,548.
  1. [38]
    She works as a tutor, an examiner for Griffith University, and for IDP Education. Carlos works in IT and earns $4,000 gross per month if he is well. Her income is $6,070 per month, her expenses are $6,150 per month, and her super is $38,576. Carlos suffers from depression, has had a disc prolapse, and suffers from sleep apnoea. She describes her family situation (paras 89-98).
  1. [39]
    In a further affidavit of Merisa filed on 7 October 2014 she says that Joan did not move in with Sergio until after their marriage in October 2000. Joan came and went before this (para 5). She denies that the relationship started in 1991, and indeed she says that she was still at home until 1994. She alleges that when she returned home from overseas in February 2008 her father was well enough to help tidy the gardens. At (para 16.2) she says she would have liked to have seen him more when he was in palliative care, but she had limited time. She says there are messages between herself and palliative care workers which are attached. She says that after Joan and Sergio married, it was rare for her to spend time alone with Sergio. She points out that in the wedding in 1994 there are photos of Kay and not of Joan. She alleges that on 29 September 1995, Joan attended Melinda’s birthday at the Caravanserai restaurant and she was not living with Sergio then. She says that in October 1997 Joan had a surprise party for Sergio but she was not invited.
  1. [40]
    She sets out various contact between 2001 and 2012. For example, in 2010 she visited Sergio twice (para 92). In 2011 she visited him on 22 August, 9 October and at Christmas. She alleges that in August/September 2011 Sergio and Joan visited her at Currumbin. In 2012 she says that on 23 March she saw him in the hospital, she also saw him in the hospital on the 27 March and the 28 March .On 8 April and in June she saw him at home. There are texts marked “MNC42” between Melinda and Merisa whilst he was in palliative care. She alleges the will was made in consultation with Joan. Joan receives five-eighths of the DFDRB pension and Sergio contributed $100,000 to her super. Joan receives $1,000 per fortnight. As to her current financial position, her assets are:
  1. (a)
    a property at 10 Kooyan Close, Currumbin - $450,000;
  1. (b)
    investment property at Southport - $150,000;
  1. (c)
    other items
  1. (d)
    total - $619,381.31 (para 129).
  1. [41]
    She says her liabilities total $429,038 and the net is $190,342.37. She works as a tutor/examiner for Griffith University, and in 2013/2014 received $28,287 gross. She also received a carer’s allowance of $2,847. Carlos earns approximately $20,000 per annum. Their monthly income is $4,750 and their expenses $4,750. She says her superannuation is $54,996. She says Carlos suffers severe depression and sleep apnoea. There are also difficulties with their child Kailen. She has four family members dependent on her.
  1. [42]
    In cross-examination whilst she agreed Joan lead a modest lifestyle in the next breath she said that she bought a lot of clothes (T1-87.35). I gained the clear impression she was not at all well disposed towards Joan.
  1. [43]
    Importantly in her affidavit filed 7 October 2014 she exhibited letters from her solicitor to Joan’s solicitor dated 19 July 2013 and 2 August 2013 (Exhibit MNC46) but did not exhibit the replies (see Exhibits JC3 and JC5 to affidavit of Joan filed 31 October 2014.) This is despite the fact she agreed she must have seen these (see evidence T1-89, T1-90 and T1-91).
  1. [44]
    Further at (para 120.3) of the affidavit filed 7 October 2014 the witness alleged that Joan had not attempted to resolve this matter. Yet this is not correct (T1-91).
  1. [45]
    At para 28 of her affidavit filed 18 September 2013 the witness made no disclosure that the $11,159.51 was from Joan’s own funds, yet she knew this (T1-92.17). Again this should have been disclosed.
  1. [46]
    At para 126 of her affidavit filed 7 October 2014 the witness alleged that Joan had not disclosed her superannuation assets. She said she had read Joan’s affidavits. Yet exhibit JC3 is contained in Joan’s affidavit filed 2 October 2013. She conceded there had been disclosure by Joan and withdrew the allegation made at para 126.1. (see T1-92; T1-93 and T2-3 to T2-5).
  1. [47]
    At para 55 of her affidavit filed 18 September 2013 she attached a number of tax return extracts but not for the periods of 2000/2001. She alleged these had not been located; yet an extract of the 2000/2001 tax return was in Melinda’s affidavit filed 8 October 2014. This was important, as the assertion that Sergio had paid $20,000 in that year to Joan was not correct (T2-4).
  1. [48]
    Also the witness conceded looking at Exhibit JC3 contained in Joan’s affidavit filed 2 October 2013 shows the recommendation being that $100,000 be placed into super from Joan’s house sale. She accepted that the $100,000 in the super was from the house sale contrary to her earlier assertions (see para 55 of Merisa’s affidavit filed 18 September 2013 and para 120.4 and para 121.1 of Merisa’s affidavit filed 7 October 2014 see T2-5.35)
  1. [49]
    She conceded that as at October 2003 Joan’s assets totalled $184,500 and as at June 2013 about $198,000 (T2-10.45 to T2-11.3).
  1. [50]
    She accepted she was upset by her interpretation of Joan’s material that she and Sergio were “estranged” (T2-14.1)
  1. [51]
    She agreed that as at September 2007 she was living in South Brisbane and yet no arrangements had been made to see Sergio for father’s day (T2-15.40). No arrangements had been made for his birthday in October 2007. I consider this supports the contention that there was not that much contact between Merisa and Sergio at that time. She conceded that Joan and Sergio were a couple from 1994 on.
  1. [52]
    She accepted that Sergio’s health was in decline from 1998 onwards (T2-17.25). Joan and he looked after each other. She was not aware of heart problems in the early 2000s. From the late 1990s Sergio had bouts of serious illnesses and from April 2011 and on his health was in serious decline. She agreed Sergio tried to hide his problems (T2-17).
  1. [53]
    She agreed the relationship between she and Joan has broken down and they do not trust each other. She agreed that in January 2013 she phoned Mr Smith and they could not agree on anything. She does not want to have anything to do with Joan (T2-18).

Melinda’s evidence

  1. [54]
    Melinda’s first affidavit was filed on 18 September 2013. Melinda was born on 29 September 1969. She says that when her mother died in July 1983 she was 13 years of age (para 10). She says that she spent hours working on the Bracken Ridge property, and Sergio told both she and Merisa that one day the house would be theirs (para 11). Merisa and she contributed to all of the household expenses. Sergio often said that the house would be theirs one day. When she was 18 years of age and made $210 per fortnight, she contributed $150 of her income per fortnight to the household (para 12). She says that her father and she continued a loving relationship after she left home. She commenced a Bachelor of Nursing degree in late 1994 and worked at the Redcliffe Hospital (para 16). She says that Sergio lent her $5,000 for her to buy her first house at Caboolture. In 1997 she went to Bamaga, then Collinsville, then rural Queensland, and then Africa (para 20).
  1. [55]
    In 2004 she sold the Caboolture house. In 2006 she moved to Brisbane and purchased a property at 1/14 Louis Street, Annerley (para 24). In 2008 she started working at Woorabinda and has been there since. She alleges that she and Sergio were in regular phone contact (para 25). She used to visit Sergio and Joan eight to nine times a year (para 27). She took leave for a month in February to March 2012 and extended this by two months to spend time with her father when he was in hospital. From June 2012 she told Joan to tell her if she could come down because of her father’s condition. On 8 October 2012 she visited Joan and her father and arranged for Ozcare. Her father went to hospital (the Prince Charles) on 9 October 2012 (para 32). During the final two weeks of his life she stayed at the hospital every night.
  1. [56]
    She denies that Joan and Sergio commenced a relationship in 1994 and says that Sergio informed her that Joan did not begin visiting until 1995 (para 39). Joan commenced living in the house in 2000. She says that in 2007 her father’s health was fine. He continued to drive despite having a mini-stroke in 2009. She denies that Joan stayed with her father 24 hours a day whilst he was in palliative care. She also denies that the only regular contact she had was at Christmas time. She alleges that on 28 December 2010, at a meeting with Merisa, Sergio said the house would be theirs one day.
  1. [57]
    Melinda’s assets amount to $689,000 and her liabilities $641,000 (para 60). She alleges her net worth is $48,000. Her monthly income is $7,166 and her expenses $5,777. She has $195,000 in QSuper and $14,000 in other superannuation policies. She alleges she suffers from hypertension, endometriosis and depression (para 68).
  1. [58]
    In an affidavit filed 8 October 2014 Melinda says that she and her father had a continuing and loving relationship after she left home (para 6.20). She says she lived away from Brisbane from the end of 1997. She says that she stayed with her father when Joan was not living there. She alleged that Joan did have some things in a spare room. She alleges that Joan did not move in until they were married in October 2000 (para 10). In 1994 when Merisa was married, Sergio was in a relationship with Kay. Indeed, Joan knew about Kay. Melinda lived at the home until 1993, and Merisa until 1994. MGC4 is a copy of Sergio’s tax return for 1999/2000. Melinda regularly visited her father and Joan, and there are various texts marked MGC8 which proves this. She says that she borrowed $10,000 from Sergio to purchase her first house and paid him $8,000 back (para 17.1).
  1. [59]
    Her assets are:
  1. (a)
    Property at 10 Kooyan Close, Currumbin $300,000;
  1. (b)
    Investment property South Melbourne, $330,000;
  1. (c)
    Other investments
  1. (d)
    Total - $688,898.16 (para 28)
  1. [60]
    Her liabilities are alleged to be $607,314. Her net worth is $81,583.33. Her net income per month is $7,826 and her expenses $5,761. She has $244,843 in superannuation. She alleges she suffer hypertension, endometriosis and depression.
  1. [61]
    In cross-examination she conceded at para 26.16 of her affidavit filed on 8 October 2014 the witness specifically alleged that Joan contacted DFRBS directly and received her first DFRBS payment on the day of the funeral. The funeral was on 29 October 2012. Yet when confronted with MNC 4 to the affidavit of Merisa filed 7 October 2014 she conceded the approach to DFDRB was on 28 November 2012 and the first payment was on 29 November 2012. Her response is she misread the date. I find her contention not supported by the evidence (T2-22).
  1. [62]
    The witness agreed that her father was concerned that Joan be looked after (T2-22.43). She also conceded that Sergio and Joan were in a relationship from the mid-1990s (T2-23.1).
  1. [63]
    At para 26.1 of her affidavit filed 8 October 2014 she alleged that Joan had failed to disclose her shareholdings. Yet at para 17 of Joan’s affidavit filed 10 July 2013, Joan said that she received income from her investments which varied, but that she would supply this. Then in her affidavit filed 2 October 2013 Joan exhibited JC2 which referred to share holdings with Telstra, Tatts and Noni-B, and in exhibit JC4 Joan’s tax return for 2012/2013 specifically refers to these shares. I find her contention not supported by the evidence (see T2-24-T2-25).
  1. [64]
    Melinda conceded that her father was ill with cancer from 2011 although she alleged he was completely capacitated (T2-25.30). She did concede he tried to hide his condition from them. After being confronted with Dr Pokarier’s affidavit she accepted that his health was in “serious decline” (T2-26.15) despite her earlier evidence (T2-25.25).
  1. [65]
    She disputed Joan’s allegations as to her level of contact yet conceded only a few texts were attached to her affidavit (T2-26).

Leo’s evidence

  1. [66]
    Leo Cerneaz has provided an affidavit filed 2 October 2014.
  1. [67]
    Leo is the younger brother of Sergio and was born on 9 October 1935 (para 1). He says that he was close to Sergio. He first met Joan in late 1994/early 1995 (para 9). After Josephine died in 1983, Leo’s wife Val helped Merisa and Melinda for events like school formals, etc. (para 23). He had regular contact with Sergio and Joan. Merisa, Melinda and Sergio were all very close, especially after Josephine died. He says the girls put in money for the shared cost of living when they were living at the house. In October 2011 Sergio had his 80th birthday at the Pine Rivers Bowls Club.  Merisa and Melinda attended.  He was not estranged from them.  Melinda especially was devoted to him.  Melinda visited once every two months from Woorabinda.  Merisa and Sergio would also get together.  Sergio had a friendship with Kay.  Sergio and Joan got together after the daughters left.  Merisa left the house in February 1994. 
  1. [68]
    In cross examination Leo agreed that Sergio’s cancer was first detected in 2000(T1-80.25). He agreed that Joan was like part of the family by the time of the marriage. He could not say when Joan started coming and going but it was by the mid-1990s after the daughters had left the house.
  1. [69]
    He accepted that Sergio’s health declined from the 1990s. After 2007 he was periodically ill and his health seriously declined from early 2011. Before his death in October 2012 he had been hospitalised a number of times. Although not well in early 2011 he was able to do “stuff.” He had a tendency to keep problems to himself (T1-85.10).

Peter Smith’s evidence

  1. [70]
    Peter Smith, a solicitor, has provided an affidavit filed 2 October 2014. He prepared Sergio and Joan’s wills between 9 February 2011 and 11 March 2011. He encloses file notes in this regard. It seems clear from the file notes that the intention was that the balance of the proceeds of sale after the purchase of a life interest in the house for Joan were to go to the two daughters.

Robert Cody’s evidence

  1. [71]
    Robert Cody has provided an affidavit sworn 8 October 2014. He is a work colleague of Melinda. He sets out the leave that Melinda took in 2012, and alleges she used this to visit her father because of her father’s health.

Submissions as to the evidence

Applicant’s submissions

  1. [72]
    Mr Conrick submits that the Applicant was Sergio’s spouse for some 18 years. He submits that the court should find that they lived together from about 1994 at Bracken Ridge [5]. His client’s evidence is corroborated by the letter referred to above and by [30 iv] of Merisa’s affidavit filed 18 September 2013. It is further submitted that Leo supports the contention that Sergio and Joan got together after the daughters left the home which was in 1994.
  1. [73]
    As to the contention that Leo was the next of kin on a medical form in 2000, Joan was upset by this [8].
  1. [74]
    It is further submitted that Melinda concedes that Joan had things in the spare room from 1997, and Joan features in photographs from September 1995 [9].
  1. [75]
    It is submitted Joan should be accepted.
  1. [76]
    As to the quality of the relationship and support provided by the Applicant, it is submitted the burden of organising Sergio’s social interactions fell onto Joan [13]-[19]. For much of their married life Sergio suffered ill health and his death was ultimately caused by cancer which he had for some time. It is submitted Dr Pokarier’s evidence supports this. An email sent by Merisa supports the nature of the care provided by Joan (see Exhibit MNC1 to the Affidavit of Merisa filed 7 October 2014.)

Respondents’ submissions

  1. [77]
    The Respondent relies on Exhibits 1 and 2 to the effect that it was conceded by the Applicant that Sergio and his daughters shared a loving relationship, and it was the usual sort of relationship between a father and his daughters. There was no estrangement. It is not contended by the Applicant that either Respondent ought not receive a bequest.
  1. [78]
    It is submitted the closeness of the relationship continued into their adult lives. Communications varied according to the commitments of both. It is noted Merisa gave the eulogy at Sergio’s funeral.
  1. [79]
    It is submitted at p 12 that there is no clear evidence that the relationship between Joan and Sergio commenced in 1991 or indeed 1994. It is submitted that there is no doubt that they were friends from about 1994, but it is noteworthy Leo was put down as the next of kin for the kidney operation in 2000. Joan conceded she received a full pension until the marriage.

Findings of fact

  1. [80]
    If there is a conflict in the evidence I generally prefer the evidence of Joan as compared to Merisa and/or Melinda. I found that Merisa and Melinda on occasions made allegations not supported by the evidence. I have identified these areas above.
  1. [81]
    Any uncertainties in Joan’s evidence I find are explained by her age and the effluxion of time.

Nature of the relationship

Joan

  1. [82]
    I accept the Applicant’s submissions. I have accepted Joan’s evidence on this. I consider they started going out and Joan spent a lot of time at Sergio’s place after Merisa moved out in 1994.
  1. [83]
    Certainly they were living together for much of the time from about 1997. Indeed Merisa in the letter which is Exhibit JC1 to the affidavit of Joan filed 2 October 2013 noted that “unofficially” she had been at the Bracken Ridge property since the mid- 1990s. Insofar as Leo was noted as next of kin for the kidney operation, I find that Joan was upset by this.
  1. [84]
    In the circumstances I accept that Joan and Sergio were together as a couple from at least 1995 for Joan.
  1. [85]
    In any event Joan and Sergio were married for some 12 years. Joan was dependent upon Sergio. She was not allowed to earn an income during that time.
  1. [86]
    Joan spent much time looking after Sergio particularly during his periods of ill health.
  1. [87]
    I find on the evidence that Sergio was in ill health at times from as early as 1999. His health significantly declined after 2011. Joan spent much time looking after him

Merisa

  1. [88]
    Generally, as to the Respondents I consider they were very close until Melinda left home in 1993 and Merisa in 1994. I consider they drifted apart from Sergio and have started to live their own lives- a matter which is understandable and not a criticism.
  1. [89]
    It seems to me on the material that the relationship between Merisa and Sergio had less frequent contact. I note Merisa’s letter from 2007 (MNC32 exhibited to the affidavit of Merisa filed 7 October 2014) that she herself noted that they did not talk or see each other very often. I also note Merisa’s cross examination in that regard.
  1. [90]
    I note Merisa, because of family commitments, only visited Sergio once or twice whilst he was in palliative care in October 2012. There was no doubt though she was concerned as to his welfare as evidenced in the text messages.
  1. [91]
    Despite all of this I accept the concessions made by the Applicant as contained in Exhibits 1 and 2.

Melinda

  1. [92]
    I consider Melinda’s contact was more frequent than Merisa’s. She regularly visited Sergio from Woorabinda.
  1. [93]
    Again I accept the concessions made by the Applicant as contained in Exhibits 1 and 2.

Financial affairs during the relationship

  1. [94]
    On the evidence Joan had to forgo her pension after she entered the relationship and became dependent on Sergio.
  1. [95]
    She had to sell the house in Caboolture in 2003 (EX 3). I accept Joan’s evidence that the reason for the sale was that there was a shortfall between rent received for the house and the cost of keeping the house of $54 per week. Sergio would not pay for this.
  1. [96]
    As to the net proceeds of the sale of the house it is now common ground that the amount was $126,640.78 net. The monies were distributed as follows:
  1. (a)
    $50,000 to Colonial First Choice
  1. (b)
    $50,000 to Zurich
  1. (c)
    As to the balance I accept Joan’s evidence that she gave this to Sergio who gave it back to her. This is consistent with the statement in para 4 of EX JC 3 to Joan’s affidavit filed 2 October 2003, that the available funds were the proceeds of the sale of the house and the sum of only $2100.
  1. [97]
    I accept Joan’s evidence as to Sergio’s contributions to her. On the advice of the financial planner, in order for him to minimise tax and to maximise income (see Exhibits JC 2 and 3 to Joan’s affidavit filed 2 October 2013) he contributed $30000 in 2000/2001 and $20,000 in 2001/2002 to acquiring an allocated pension in Joan’s name. Other payments of three lots of $3000 were not physically made. They were “taxation items” only (see [46] of Joan’s affidavit filed 2 October 2013.)
  1. [98]
    The item described as Onepath NEF Flexible Retirement Plan represents the $50,000 contributed by Sergio.
  1. [99]
    Merisa in her evidence alleged that Sergio spent all of his money on the relationship and that Joan spent nothing. To support this allegation she relied on a joint bank account statement between 6 July 2009 and 2 June 2010 (EX MNC 1 to affidavit of Merisa filed 18 September 2013) and one page of a bank statement between October 2012 and January 2013 (EX MNC 5 to the affidavit of Merisa filed 18 July 2013). I do not consider such limited material justifies such a contention.

Joan’s financial position

  1. [100]
    Joan presently has the benefit of a DFDRB pension and an old age pension, and some income from the investments. However of course, Joan has no real earning capacity.
  1. [101]
    She was in the marriage for 12 years and is now almost 70. It may be difficult for her to re-partner at that age.
  1. [102]
    Her income is modest. She receives a service pension of $647.81 per fortnight, an aged pension of $471.33 per fortnight, Zurich payments of $315 per month, Colonial payments of $246.66 per month, and One path payments of $522 per quarter. Her expenses (without allowance for housing) are $529.13 per week.
  1. [103]
    She does not have a place of residence of her own at this stage. This is of concern for her at her age.
  1. [104]
    Her assets have not grown much in size in the 10 years between 2003 and 2013. They were about $184,000 in 2003 and about $198,000 10 years later.
  1. [105]
    Having made that observation, the fact is she does have cash assets of close to $200,000 with no liabilities.
  1. [106]
    On the evidence it is clear the parties distrust each other now. Any trust situation would be very difficult if not impossible to work. To my mind despite any testamentary intention to the contrary, it is unrealistic to have a situation where the Applicant has a mere life interest in a property in respect of which the Respondents are trustees. Indeed both parties agree with this.

Merisa’s financial position

  1. [107]
    On the other hand, Merisa is young as compared to Joan, and has a significant working capacity.
  1. [108]
    She has not only her own property but an investment property, although I accept significant liabilities.
  1. [109]
    I think though in the result Merisa has many years of working life left as compared to Joan, who presently is almost 70 years of age.
  1. [110]
    Her assets are:
  1. (a)
    property at 10 Kooyan Close, Currumbin - $450,000;
  1. (b)
    investment property at Southport - $150,000;
  1. (c)
    other items
  1. (d)
    total - $619,381.31.
  1. [111]
    Her liabilities are:
  1. (a)
    Mortgage on Kooyan Close, Currumbin $224,932
  1. (b)
    Mortgage on Southport investment unit $153,600.61
  1. (c)
    Other debts
  1. (d)
    Total $429,038.94
  1. [112]
    Merisa works as a tutor and examiner for Griffith University and has had some other part time work. Her taxable income for 2013/2014 was $28,287, and in addition she receives a carer’s allowance.
  1. [113]
    She alleges Carlos cannot find full time employment but he did earn about $20,000 in 2013/2014. Her monthly expenses are claimed to be $4750.
  1. [114]
    She supports her family.
  1. [115]
    She has about $54,000 in super.

Melinda’s financial position

  1. [116]
    Melinda is young as compared to Joan, and has a significant working capacity as a Registered Nurse.
  1. [117]
    She has not only her own property but an investment property although I accept significant liabilities.
  1. [118]
    I think though in the result Melinda have many years of working life left as compared to Joan, who presently is almost 70 years of age.
  1. [119]
    Her assets are:
  1. (a)
    Property at 10 Kooyan Close, Currumbin $300,000;
  1. (b)
    Investment property South Melbourne, $330,000;
  1. (c)
    Other assets
  1. (d)
    Total - $698,898.16
  1. [120]
    Her liabilities are:
  1. (a)
    Mortgage on Kooyan Close $355, 481[1]
  1. (b)
    Second Mortgage $249,039
  1. (c)
    Overpayments $2794
  1. (d)
    Total $607,314.83
  1. [121]
    She receives income of $7826 per month. She claims her expenses are $5761 per month. She has in excess of $240,000 in super.

Joan’s health

  1. [122]
    I accept Joan’s evidence (supported by Dr Pokarier) that she suffers from depression and is on medication for this. She also suffers from eczema, reflux, hypertension, IBS, osteoarthritis, chronic inflammatory demyelinating polyneuropathy, sleep apnoea and Hashimoto’s disease. Medication costs $70 per month.

Merisa’s health and her family’s health

  1. [123]
    Merisa claims that Carlos has continuing medical issues and suffers from severe depression and sleep apnoea. Kailen has been “flagged” for intervention and she has attended expert appointments concerning him.

Melinda’s health

  1. [124]
    Melinda suffers from some hypertension, endometriosis and depression.

Principles to be applied

  1. [125]
    Section 41 of the Succession Act 1981 (Q) relevantly provides:

41Estate of deceased person liable for maintenance

  1. (1)
     If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A)  However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person's death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

  1. (2)
    The court may—
  1. (a)
    attach such conditions to the order as it thinks fit; or
  1. (b)
    if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or
  1. (c)
    refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose 4 circumstances are such as make such refusal reasonable.”
  1. [126]
    The court is required to undertake a two stage process.
  1. [127]
    At the first stage it must be ascertained whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance and support of the Applicant. This is in effect a jurisdictional question. This is to be determined as at the date of death (Coates v National Trustees Executors and Agency Co Limited (1956) 95 CLR 494).
  1. [128]
    In relation to this first stage in Singer v Berghouse (1994) 181 CLR 201 at 209-210 Mason CJ, Deane and McHugh JJ stated:

“The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances was the proper level of maintenance etc. appropriate for the Applicant having regard, amongst other things, to the Applicant’s financial position, the size and nature of the deceased’s 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 his or her bounty.”

  1. [129]
    The assessment of the first stage of the process involves the exercise of value judgments (see Singer at p 210.8). With reference to Goodman v Windeyer (1980) 144 CLR 490, it was said at p 211.3:

“[T]he words “adequate” and “proper” are always relative. There are no fixed standards and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.”

  1. [130]
    This is an objective question of fact to be determined by the judge at the date of the hearing (Singer 211.5).
  1. [131]
    In Re Fulop (1987) 8 NSWLR 679 it was said the relevant factors to be considered in respect of “proper” included:
  1. (a)
    the nature and quality of the relationship between the plaintiff and the deceased;
  1. (b)
    the character and conduct of the plaintiff;
  1. (c)
    the nature and extent of the plaintiff’s present and reasonably anticipated future needs;
  1. (d)
    the size and nature of the estate of the deceased;
  1. (e)
    the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased; and
  1. (f)
    any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased.
  1. [132]
    In Vigolo v Bostin (2005) 221 CLR 191 at [114] Callinan and Heydon JJ said:

“The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called ‘station in life’ of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.”

  1. [133]
    On the issue of “need” Tobias JA in Collins v McGain & Anor [2003] NSWCA 190 at [42] noted that the question of needs must not be too narrowly focussed. The court must take into account present and future needs including the need to guard against unforeseen contingencies.
  1. [134]
    “Proper maintenance” is not limited to the bare sustenance of a claimant. “[It] requires consideration of the totality of the claimant’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed and mobility” (see Collins v Mutton [2012] NSWSC 548 at [59]).
  1. [135]
    On the question of financial need, the concept is a relative one. It is not necessary for an Applicant to demonstrate that he or she is destitute (Collins v Mutton [2012] NSWSC 548 at [94]).
  1. [136]
    If the first question is answered affirmatively, then the court in exercising its discretion to make provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order (Coates v National Trustees Executors and Agency Co Limited (supra)).
  1. [137]
    In Singer v Berghouse (supra) at 210 it was said:

“The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which would be made in favour of the Applicant.”

  1. [138]
    There can be circumstances where even if the jurisdictional limb is satisfied the court could refuse to make an order e.g. in Ellis v Leeder (1951) 82 CLR 645 where there were no assets of the estate from which an order could reasonably be made.
  1. [139]
    It should be borne in mind that the court does not have jurisdiction to re-write the testator’s will to make provision which, according to whatever idiosyncratic notions of fairness which one or other of the parties bring to the application ought to have been made (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ).
  1. [140]
    It ought to be borne in mind:

“… It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else.” (Grey v Harrison [1997] 2 VR 359 at 386 per Callaway JA) 

  1. [141]
    Each case needs to be determined on its own facts but it has long been accepted that as a general rule a surviving spouse should have a proper level of maintenance (see Re Bourke deceased [1968] 2 NSWR 453 at 455).
  1. [142]
    In Luciano v Rosenblum [1985] 2 NSWLR 65 Powell J at 69-70 observed that:

“It seems to me that as a broad general rule and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to meet any unforeseen contingencies.” (also see O'Loughlin v O'Loughlin  [2003] NSWCA 99 at [20]-[22] per Davies AJA). 

  1. [143]
    I note that whilst it was observed in Bladwell v Davis [2004] NSWCA 170 that such a general rule might be seen to be inconsistent with Singer’s case (see Bryson JA), ordinarily the needs of a widow would be given primacy (see Ipp JA at [2] and Stein AJA).
  1. [144]
    The Luciano principle was restated in Clifford v Mayr [2010] NSWCA 6 at [142-143].
  1. [145]
    It is true though that this “broad general rule” cannot be applied without modification in every case (see Marshall v Carruthers [2002] NSWCA 47 at [65]).
  1. [146]
    In my view that which Mullins J stated in Yeomans v Yeomans and Anor [2011] QSC 344 at [43] is correct where her Honour said:

“Such a general statement about a category of Applicant for family provision cannot undermine the approach to family provision applications that was analysed and explained in the joint judgment in Singer. There is a danger of not applying properly the two stage process with the different considerations that are required to be examined at each stage, if there is recourse to general statements such as that made in Luciano. Similar observations about caution in applying Powell J’s general rule about widows have been made in Marshall v Carruthers [2002] NSWCA 47 at [74], Bladwell v Davis & Anor [2004] NSWCA 170 at [18] and Manly v Public Trustee of Qld [2008] QCA 198 at [38].”

  1. [147]
    I also note that those cases relied on by the Applicant which suggest that the provision of a mere life interest may not provide the “requisite security” (see Elliott v Elliott NSWCA CA 245 of 1984; Golosky v Golosky NSWCA 5 October 1993; Hertzberg v Hertzberg [2003] NSWCA 311 and Sayer v The Public Trustee NSW [2009] NSWSC 89). 

Submissions of the parties

Applicant’s submissions

  1. [148]
    The Applicant submits that:
  1. (a)
    Joan is 69 with no permanent residence.
  1. (b)
    Given the rate of inflation her asset pool has actually declined over the 10 years from 2003 to 2013.
  1. (c)
    There is a modest surplus of income over expenses.
  1. (d)
    Joan is worse off after the marriage, as she had to sell her house.
  1. (e)
    Given the capacity of the estate Sergio was obliged to leave her secure in her home and to ensure she had a sufficient and secure income stream, and to provide her with a fund to meet unforeseen circumstances.
  1. (f)
    Joan has not been left secure. She is dependent on the executors.
  1. (g)
    The material shows a significant antipathy towards Joan.
  1. (h)
    At an absolute minimum she should receive $392,000 (which coincides with the purchase price of the Mango Hill property plus expenses.)   

Respondents’ submissions

  1. [149]
    The Respondents submit:
  1. (a)
    That an alteration should be made to the will to the extent that each party receive one-third of the estate.
  1. (b)
    The competing needs of Merisa and Melinda need to be weighed as against Joan’s claim.
  1. (c)
    The Respondents have demonstrable financial need and have established a loving and warm relationship with Sergio.
  1. (d)
    Both have significant liabilities.
  1. (e)
    Melinda would like to move closer and purchase a new car and carry out house repairs.
  1. (f)
    Merisa has 3 dependent children and an unwell husband.
  1. (g)
    There are a number of factors which favour a higher percentage for the Respondents (pp12-14) in particular the fact that the Applicant has a significant fund to assist her to meet the exigencies of life.
  1. (h)
    The testator’s intentions are relevant and Joan knew of these.   

Conclusions – the first stage

  1. [150]
    In conclusion, I am of the opinion the Applicant has been left without adequate provision for her proper maintenance and advancement in life. In reaching this conclusion, I have regard to her financial position, the size and nature of the deceased’s 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 his bounty.
  1. [151]
    I take into account the Applicant’s medical condition and age. I consider these matters as at the date of death.
  1. [152]
    I also consider that a relevant consideration in this case is that it is now impossible for the executors and Joan to get on which will cause continuing difficulties if they remained trustees of a house in which Joan is to reside.
  1. [153]
    In the circumstances, I consider the jurisdictional limb has been met. I now reach the second stage of the determination.

Conclusion – the second stage

  1. [154]
    The court may exercise its discretion to make provision as it sees fit. In doing so, it must take into account the relevant facts as they exist at the time of the making of the order. There is no significant difference between the facts as at the date of death and the facts as at the date of the order. There is no exact science in determining the amount to be judged. The estate is worth some $741,000[2].  The costs of the Respondent and the Applicant should be taken into account (Bladwell v Davis [2003] NSWSC 882 at [11]). 
  1. [155]
    The Applicant’s costs are estimated to be $45,000 to $65,000. The Respondents’ costs are $27,908.72 for general administration costs and $102,184.92 to defend the claim, a total of about $190,000. The level of the costs may well be the subject of significant argument.
  1. [156]
    I have regard to the following cases, bearing in mind that each case depends on its own facts:
  1. (a)
    Re Calder [1950] GLR 465.
  1. (b)
    Ahearn v Ahearn [1917] St R Qd 167.
  1. (c)
    Pogorelic v Banovich & Ors [2007] WASC 45.
  1. (d)
    Rayner v Rayner[2006] NSWSC 335.
  1. (e)
    Sayer v The Public trustee [2009] NSWSC 89.
  1. (f)
    Lawrence v Lawrence & Ors [2004] WASC 90.
  1. [157]
    In Rayner the net balance of the estate was $352,480.84. The Plaintiff was left with a right of occupancy of the deceased’s property. She was the second wife. There were 4 children of the first marriage. The plaintiff has been married to the deceased for 23 years. Evidence was lead as to the cost of a 2 bedroom home in Taree ranging from $150,000 to $220,000. The plaintiff also needed a replacement car. At [77] the court noted there were limited funds in the estate and that the plaintiff did not contribute to the main asset. The children had circumstances which were not affluent. It was said “Although the plaintiff has a substantial claim it is not such that it should be recognised to the exclusion of the children of the deceased.” In the result a legacy of $160,000 was ordered.
  1. [158]
    In Sayer the deceased was survived by the plaintiff, his second wife and his 3 children by his first marriage. He left his half share in matrimonial home plus money in his bank accounts to his children and gave the residue of the estate to the plaintiff’s 2 daughters (from her previous marriage). The deceased’s share in the property was worth $550,000. The plaintiff has also received a lump sum from the deceased’s super in the amount of $183,883.58. The plaintiff retained her half share in the home and had investments of $347,950. An order was made that conditional on the plaintiff paying $185,000 to the estate she was to receive the deceased’s half share in the home.
  1. [159]
    In Lawrence the deceased left his farming property to the 6 children of his first marriage. The plaintiff was left “the sole use of the house during her lifetime” She was 78. The value of the deceased’s estate was $1,957,703.50. The estate was large enough to justify an order that $170,000 be paid to the plaintiff to buy a house; $30,000 for a car and a capital sum of $125,000.
  1. [160]
    In the present case there is evidence that a three bedroom house can be constructed at Bracken Ridge for $150,000 with land to cost $250,000 (see MNC 44 to Merisa’s affidavit filed 7 October 2014.) Joan in her affidavit filed 11 February 2015 swears that accommodation in Bracken Ridge is up to $100,000 more than a comparable house in Mango Hill. The range then for a 3 bedroom house in Mango Hill is about $300,000 to $385,000 (the value of the house she has conditionally purchased.)
  1. [161]
    Taking all matters into account, it is my conclusion that provision should be made to the Applicant from the estate to the extent of a legacy of $350,000. On the evidence this will enable her to buy a house to live in, in the way she was accustomed to at the time of the deceased’s death.
  1. [162]
    I consider otherwise she has been left with an income stream namely the provision of the vet affairs pension, a Centrelink pension and investment income.
  1. [163]
    In reaching a conclusion as to this amount, I have regard to the following:
  1. (a)
    the Applicant’s needs;
  1. (b)
    the Respondents’ (and Merisa’s family) needs;
  1. (c)
    the length of the marriage;
  1. (d)
    the relationship between the parties;
  1. (e)
    the earning capacity of the parties.
  1. [164]
    I therefore make the following orders:
  1. That provision be made for the proper maintenance and support of the Applicant out of the estate of Sergio Cerneaz.
  2. That the last will and testament (“the will”) of the Deceased dated 7 March 2011 be amended so it is to be read and construed as follows:
  1. (a)
    Clause 3.1 (d) of the Will be deleted
  2. (b)
    Claude 3.1 (f) of the Will be amended to read as follows:

3.1 (f)I give $350,000 to Joan and I give the rest and residue of my estate to Merisa and Melinda as tenants in common in equal shares.”

  1. [165]
    I am prepared to hear the parties on whether the above orders give effect to the decision.
  1. [166]
    I will hear the parties on the question of costs.

Footnotes

[1] I do not exactly understand this as she has a 40% share and Carlos and Merisa a 60% share yet Melinda’s mortgage is higher

[2] Merisa and Melinda have each received an interim dividend of $17,502.38 from this amount.

Close

Editorial Notes

  • Published Case Name:

    Cerneaz v Cerneaz & Anor

  • Shortened Case Name:

    Cerneaz v Cerneaz

  • MNC:

    [2015] QDC 41

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    27 Feb 2015

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.