Re Fraiia[2023] QDC 218

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In July 2022 Sofia Fraiia died. She is the daughter of the applicant, Judith Fraiia. When Sofia died, she was 44 years old. She was survived by her father, four siblings, and the applicant Judith. The respondent is a close friend and one-time employer of Sofia. She was appointed Sofia’s executor under a will executed in July 2020. Sofia provided for the applicant to take the benefit of superannuation holdings worth about $100,000. The balance of the estate, excluding a car of modest value, was to go to the respondent. The major part of the estate was a unit in Buderim, the sale of which realised $305,000.
2. [2]
   The applicant says that insufficient provision was made for her out of her daughter’s will. The applicant and respondent have agreed to compromise the proceeding, the result being that the applicant is to receive $196,000 from the estate. At one time it was thought the applicant suffered dementia and was under legal disability. As I will explain that issue has resolved. It remains to consider section 41 of the Succession Act 1981 (Qld) and whether the court should exercise its discretion to make further provision for the applicant.

Evidence in the proceeding

3. [3]
   As is often the case when applications of this kind are compromised, the evidence leaves some disputes unresolved. Because of the primacy to be given to the agreement by the parties, it is not necessary for me to make findings resolving these disputes. What follows is a summary of the evidence necessary to explain the orders I will make.

The applicant

4. [4]
   The applicant is 78 years old. She is frail and suffers the kinds of physical ailments often associated with someone of her age.^[1] She is married and bore five children, including the deceased. The applicant and her husband raised their family in Victoria. At one time the applicant’s husband purchased a property at Doncaster East. Some years later, the property was sold to one of their daughters, who permitted the applicant and her husband to reside in the home. The applicant did not receive anything from the sale of the home at Doncaster East. The applicant was predominately a homemaker.
5. [5]
   Sofia had an unfortunate and troubled life. In December 2019, she was committed to a psychiatric clinic in Buderim. After Sofia’s release, the applicant and her husband travelled from Victoria to visit. A month later Sofia’s father returned home but the applicant remained at Buderim to keep Sofia company. The applicant says it was agreed that she would stay at Buderim for the rest of her life. While the anticipated arrangement was that the applicant would help care for Sofia, the reverse came to be the situation because of the applicant’s age and frailness. She became dependent on Sofia and required her assistance to attend medical appointments, prepare meals and to provide her a place to live, while still providing company for and some assistance to Sofia.
6. [6]
   After Sofia died, the applicant returned to Victoria. She resides with and is cared for by her 86-year-old husband at the Doncaster East property. The applicant says that she needs assisted living arrangements because she is now entirely dependent on others for daily tasks. The applicant has no substantial assets, only jewellery worth $1,000. Her monthly expenses for essential items such as food and medication are approximately $2,000. She receives an aged pension of $802 per fortnight. Further provision from the estate would provide for assisted living arrangements for the applicant.
7. [7]
   When the application was commenced it appeared that the applicant was suffering from dementia and was incapable of making decisions concerning financial matters and this litigation. One of her daughters consented to act as the applicant’s litigation guardian and by June 2023 the application was amended to reflect this position. More recently the condition of the applicant has improved. A psychogeriatrician saw the applicant in early September 2023 and reports a marked improvement. He thinks that the applicant can readily make her wishes known and is able to understand and retain new information. She has the capacity to make decisions about financial matters and her care.
8. [8]
   There is no longer any suggestion that the applicant is a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000 (Qld). It follows that the provisions of the Public Trustee Act 1978 (Qld) requiring the sanction of the court are not relevant. The applicant has given a notice of her capacity and of her intention to continue the proceeding.

The respondent

9. [9]
   There is little affidavit evidence as to the respondent’s personal circumstances. She owns the veterinary clinic where Sofia was employed for seven years. They were close friends. The respondent is in a relationship and has no dependents. Her assets include a residential property, a Subaru Forrester, superannuation and cash. In total, her assets are worth about $1,345,000. The respondent’s liabilities amount to $50,000.

Consideration

10. [10]
    In deciding the application an important consideration is the compromise of the parties reflected in a Deed of Settlement. An application for family provision pursuant to section 41 of the Succession Act calls for a two-stage process.^[2] First, the courts must determine a jurisdictional question of whether an applicant has been left without adequate provision for their proper maintenance and support. If an applicant has been left without adequate provision, the court will then determine what provision ought to be made in the circumstances. In so doing the Court is asked to exercise its discretion, but the agreement of the parties is a matter of significance and should be afforded considerable weight.^[3] 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 consideration of what provision a ‘wise and just testator’ would have made.
11. [11]
    The effect of the draft orders proposed would be that $196,000 inclusive of costs is to be given to the applicant in lieu of an entitlement to $100,000 in Sofia’s superannuation account. The applicant’s financial situation is precarious, and she aided Sofia in the latter stages of her life. Sofia certainly assisted the applicant as well, but I am satisfied on the totality of the evidence that the applicant was left without adequate provision. In deciding what is an appropriate amount to provide the modest size of the estate is relevant. Substantial weight should be given to the compromise reached by the parties. In those circumstances I accept that the orders proposed by the parties are appropriate.
12. [12]
    Only one matter remains to be noted. I have decided this application ‘on the papers’ and without an oral hearing. It is clearly an appropriate case for such a decision to avoid further expense to the parties. To the extent there has been any non-compliance with rule 490(1) of the Uniform Civil Procedure Rules 1999 (Qld) that is excused.
13. [13]
    For these reasons, I made an order in accordance with the draft provided.