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Kalandyk v The Personal Representative of the Estate of Jill Margaret Petersen[2021] QDC 72

Kalandyk v The Personal Representative of the Estate of Jill Margaret Petersen[2021] QDC 72

DISTRICT COURT OF QUEENSLAND

CITATION:

Kalandyk v The Personal Representative of the Estate of Jill Margaret Petersen [2021] QDC 72

PARTIES:

SALLY-ANN KALANDYK

(applicant)

v

THE PERSONAL REPRESENTATIVE OF THE ESTATE OF JILL MARGARET PETERSEN

(respondent)

FILE NO/S:

120/20

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED EX

TEMPORE ON:

16 April 2021

DELIVERED AT:

Maroochydore

JUDGE:

Cash QC DCJ

ORDERS:

  1. An order will be made in terms of the draft order initialled and placed with the papers.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Where application is made for compromise of family provision – Whether adequate provision was made – Whether orders giving effect to compromise allow for proper maintenance and support.

LEGISLATION:

Succession Act 1981 (Qld), s 41.

COUNSEL:

I Klevansky for the applicant.

SOLICITORS:

FC Lawyers for the applicant

No appearance for the respondent.

  1. [1]
    HIS HONOUR: This is an application made pursuant to section 41 of the Succession Act 1981 (Qld). It arises from the death of Jill Peterson, who I will call the deceased, on 15 October 2019 at an aged care facility in Nambour. She was, at the time, 88 years of age. Her estate is modest. It consists of an unencumbered property at Flaxton valued at $470,000, and just over $9000 cash at bank. Before moving to Flaxton, the deceased lived in a house at Sandgate. This house was sold to finance the purchase of the Flaxton property. The deceased is survived by two children, Sally-Ann Kalandyk, the applicant, and her older brother, Paul John Peterson. The defendant left a will appointing the applicant and Mr Peterson as joint executors. Under the terms of the will, the deceased bequeathed her interest in the house at Sandgate to the applicant with the balance of the estate to go to the children in equal shares.
  1. [2]
    The difficulty to be resolved by the present application is that the deceased did not update her will after selling the Sandgate property and moving to Flaxton. At the time of her death, the deceased had no interest in the Sandgate property to bequeath to the applicant. If the will, in its present terms, were to be given effect, the estate, including the Flaxton property, would be shared equally between the applicant and Mr Peterson. The parties have had the benefit of a mediation conducted by Mr Murphy QC. They have agreed to a distribution of the estate that would see the applicant receive the property at Flaxton and Mr Peterson to receive $100,000. It now falls to me, exercising the discretion conferred by section 41 of the Succession Act, to decide if such a provision should be made from the estate of the deceased.
  1. [3]
    The essential evidence in the application consists of an affidavit of the applicant. Mr Peterson has not put on any evidence. The applicant deposes that she is 51 years old, single, and with two adult children. Her husband died in 1997 when the children were very young. As a result, the applicant and her children came to live with the deceased at the property at Sandgate. Thereafter they shared living expenses. In 2002 the deceased prepared her will, bequeathing the property at Sandgate to the applicant. The applicant deposes that she believed the will made provision in the event the property was sold. In 2003 the deceased sold the property at Sandgate and moved to Flaxton. The applicant and her children moved with her. The applicant says the deceased told her, ‘Don’t worry, the Flaxton house will be yours.’
  1. [4]
    In 2007 the deceased injured herself and moved into residential care. She and the applicant shared expenses for the Flaxton property until 2011, at which time the applicant maintained the property on her own. The applicant is employed as a child care educator. Her salary is $62,000 per annum. She has no real savings and her adult children, who also live at the Flaxton property, contribute financially where they can. The applicant leases a car of unspecified value, and has a superannuation account holding about $58,000. She suffers from depression, anxiety and bipolar affective disorder. The applicant deposes that Mr Peterson has a property at Gaythorne, which was financed with support from the deceased, as well as an investment property at Scarborough.
  1. [5]
    The present application is intended to give effect to the agreement of the parties reached in February 2021. In determining an application for family provision pursuant to section 41 of the Succession Act, the cases provide that a two-stage process is employed. First, the Court must determine a jurisdictional question of whether an applicant has been left without adequate provision for his or her proper maintenance and support. If the applicant has been left without adequate provision, the Court will determine what provision ought to be made in the circumstances. In so doing, the Court is asked to exercise its discretion.
  1. [6]
    The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative. The question of whether an applicant has been left without adequate provision is to be answered having regard to their 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. If an applicant has a legitimate claim on the estate, the second question is what amount they should properly receive. This requires a consideration of what provision a ‘wise and just testator’ would have made.
  1. [7]
    On the material before the Court the applicant is in a precarious financial position. She earns a modest salary and has no real assets. While her liabilities are not significant, it is unlikely that she will accumulate sufficient wealth to live comfortably in retirement without the benefit of the Flaxton property. I am satisfied she has been left without adequate provision. As to what would be adequate provision, I also agree that the division of the estate proposed by the parties is appropriate. It will substantially improve the applicant’s financial position, and largely reflects the wishes of the deceased. It is also a relevant consideration that the estate is modest and litigation would consume a substantial part of it.
  1. [8]
    For these reasons I will make orders in terms of the draft that has been provided, which I have initialled and will place with the papers.
Close

Editorial Notes

  • Published Case Name:

    Kalandyk v The Personal Representative of the Estate of Jill Margaret Petersen

  • Shortened Case Name:

    Kalandyk v The Personal Representative of the Estate of Jill Margaret Petersen

  • MNC:

    [2021] QDC 72

  • Court:

    QDC

  • Judge(s):

    Cash QC DCJ

  • Date:

    16 Apr 2021

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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