Bordin v Bray[2023] QDC 56

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application made by the respondent pursuant to s 41 of the Succession Act 1981 (Qld). It arises from the death of Hanz Albrecht Piatscheck (who was also known as Johann) on 20 September 2020, at an aged care facility in Nambour. He was 91 years old. The deceased’s estate is sizeable and is valued at just over $1,136,000. It is mostly comprised of the refundable accommodation deposit from his aged care home with the balance held in two bank accounts. The deceased is survived by his two stepchildren, Rosi Bordin (first applicant) and Detlef Piatscheck (second applicant) and his granddaughter, Rita Bordin, who was the primary beneficiary of the deceased’s will. Under this will the deceased made gifts to charities and bequeathed $50,000 to the first applicant and $50,000 to the second applicant. The residuary of the estate was to be given to Rita. The parties have agreed as to how the estate should be divided between themselves following mediation, but it is necessary for this court to be persuaded that such provision should be made from the estate. The issue to be resolved by the present application, in accordance with section 41, is whether the deceased left adequate provision for the first and second applicants under the will and whether the court should exercise its discretion to make further provision from the estate of the deceased.

Evidence

2. [2]
   The essential evidence in this application consists of the affidavit of the first applicant, filed 14 July 2021, the affidavit of the second applicant filed 23 August 2021 and the affidavit of Rita Bordin filed 18 January 2023.^[1] Relevantly, these affidavits reveal the following.

The first applicant

3. [3]
   The first applicant is 82 years old and single. She has two children, one of whom is Rita, and two grandchildren. She co-owns a property with her son and his wife. The first applicant’s share of the property is worth about $675,000. It is a cattle farm, and the first applicant lives in one of two dwellings on the property. Over time, some of the property has been subdivided and sold. The first applicant receives a monthly income of $2,500 from a managed fund set up with the proceeds. The fund will be depleted within a few years. The first applicant also receives a $619.12 pension from Centrelink per fortnight. Her other assets are worth less than $10,000 and she has monthly expenses are approximately $2,900.

4. [4]
   The first applicant’s mother married the deceased in Germany. The family then moved to Australia during World War 2. The first applicant was five years old. After arriving in Australia the deceased worked as a station hand for many years. While the first applicant was growing up, she would assist him on various farms. The relationship between the first applicant and the deceased was very strained. She deposes that the deceased was not kind to her, harsh, cruel at times and quite physical. Despite this, the first applicant says she cared for her parents while they were alive. Rita, the first applicant’s daughter, disputes this, saying that she was responsible for transporting her grandparents to each of their appointments and assisted them with daily activities such as buying groceries. Rita further deposes that following her grandmother’s death, the first applicant had no contact with the deceased.

5. [5]
   The first applicant has been diagnosed with Takotsubo myopathy but lives independently with the support of care workers. She uses a walking stick, needs a hearing aid, and suffers from diabetes and asthma. The first applicant anticipates that she will require a higher level of care imminently. She states that should she receive further provision from the deceased’s estate, she will enter an aged care facility to accommodate the increasing level of care she requires. The first applicant states that she cannot afford the costs associated with aged care outside of a further provision from the deceased’s estate. This is because her son and daughter-in-law do not have the finances to purchase her share of the property.

The second applicant

6. [6]
   The second applicant deposes that he is married with five children. He suffers from several medical conditions, including tremors and heart disease. These affect the second applicant’s ability to perform daily tasks such as writing, signing, and using cutlery.

7. [7]
   The second applicant was 6 years old when the family moved to Australia. He worked very long hours on farms while he was growing up to assist his stepfather. At the age of 22, the second applicant moved to Papua New Guinea where he worked as a plantation assistant. While there, he was injured in a cattle crush, suffering a back injury. The second applicant returned to Australia where he lived for several years. His parents purchased an where he worked as a ride operator before moving to Vanuatu and then returning to Papua New Guinea.

8. [8]
   In 2000, the second applicant moved to Indonesia where he has lived ever since. He developed his own coffee business but it was closed by the Indonesian government. The deceased had invested $320,000 in the second applicant’s business under the condition that the loan amount would be repaid with interest. Due to the sudden business closure, the second applicant not only lost the start-up costs associated with the venture but also the deceased’s investment. This loan was forgiven under the will of the deceased. Since then, the second applicant has worked as a business consult where he earns approximately $7,500 per month. He additionally holds $50,000 in a bank account with monthly expenses of $3,520.

9. [9]
   The second applicant deposed that he kept in regular contact with his parents despite living internationally. He would visit and stay with them whenever he returned to Australia, and the deceased visited him in Indonesia on several occasions. He says they maintained a close relationship. Rita disputes this.

Consideration

10. [10]
    The present application is intended to give effect to the agreement of the parties reached in February 2023 following mediation. In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two-stage process is employed.^[2] 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 an 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. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.^[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 parties attended mediation in February 2023 where a resolution to the present application was achieved. The effect of the draft orders proposed would be that $100,000 is to be given to the first applicant and $125,000 to the second applicant. The remainder of the estate would be given to Rita. The first applicant’s legal costs, fixed in the amount of $37,000 are to be paid from the estate. So too are the second applicant’s legal costs, fixed at $53,000. Finally, the respondent’s legal costs are to be paid from the estate on an indemnity basis. These are substantial amounts and there is no evidence before me setting out how, for example, the legal expenses of the second applicant could properly amount to more than $50,000. But litigation would not be to the advantage of the parties. It would reduce the value of the estate and in turn, the beneficiaries’ entitlements. Substantial weight should be given to the compromise achieved by the parties and the intentions of the deceased. I am prepared to accept that the first and second applicants were not adequately provided for.

12. [12]
    For these reasons, I will make an order in the terms of the draft that has been provided.