Re Bidner[2006] QSC 406

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

Application No 127 of 2006

CAIRNS

DATE 06/11/2006

JUDGMENT

HER HONOUR: James Bidner died on the 18th of September 2005. He was survived by seven children including the applicant, Marie Vianne Cahill, and two of his sons, Daniel Peter Bidner, referred to hereinafter as Daniel and Charles Ralph Bidner, referred to hereinafter as Ralph.

James Bidner appears to have executed a number of wills, one on the 12th of November 1995, one in May or June of 2003 and one on the 8th of September 2003. Acting on legal advice, Daniel and Ralph have applied for probate of the 1995 will and the applicant has filed a caveat because of the September 2003 will. In the September 2003 will, there were three executors appointed, Daniel, Ralph and the applicant, whereas in the 1995 will, Daniel and Ralph were appointed executors.

In the September 2003 will, each of the seven children was to share equally as tenants in common for the whole of the estate, whereas in the 1995 will there are additionally some small legacies to two other persons.

On the 25th of September 2006, the applicant commenced proceedings to have the September 2003 will declared valid and Daniel and Ralph filed a defence to that on the 12th of October 2005. Those are the circumstances of the litigation concerning the wills.

Going back to the factual basis of the matter before me, it appears that in about May 2003, James Bidner became ill in Southport. Many of his children live in North Queensland they were concerned about him and Daniel and Ralph and their wives went down to Southport to see him. He was in very poor condition and it appears was unable to return to the unit where he was living to live on his own and was in need of nursing home care.

On the 26th of May 2003, James Bidner appointed Daniel, Ralph and the applicant, his attorneys under an enduring power of attorney. It was decided that Mr Bidner would, instead of going to a nursing home, which his sons had deposed would be expensive, would instead live with Daniel in his property at Malanda. Neither Daniel nor Ralph are apparently themselves very wealthy and were apparently, it is said, in need of money in order to assist their father to move.

On the 3rd of June 2003, each of them received $25,000 from their father. The applicant alleges that they put this money to their personal use. They allege that the money was received by way of advances or gifts. Nevertheless, it is clear that at the time they received those moneys, they were the appointed attorneys under the enduring power of attorney and were of course, subject to the Powers of Attorney Act. Other moneys of Mr Bidner's were used to cover the expenses of his moving to north Queensland.

In about June 2003, Mr Bidner returned to Daniel's property at Malanda and it was decided that he should live in a demountable on that property. The demountable was purchased with Mr Bidner's own money as was all the work needed to be done to install it. The cost of all of that was about $47,000. Mr Bidner lived in that demountable and was apparently quite dependent in many ways upon Daniel Bidner and his wife.

On the 18th of January 2004, Mr Bidner purportedly gifted the demountable to Daniel and his wife. There are other dealings during 2003 and 2005 which give rise to at least a question as to whether or not they were appropriate dealings between Mr Bidner and his sons as his attorneys.

On the 8th of March 2004, Mr Bidner was assessed by Dr Herriott as having mild dementia. On the 23rd of June 2004, Dr Ahern assessed him as having dementia. Perhaps more importantly for the sake of the wills and later transactions, Dr Jones from Broadbeach has said that he was incapable of handling his own affairs from 1999 to 2003. If that means that the will which would be admitted to probate is the 1995 will, then some shadow must fall over transactions that occurred after May 2003 when the attorneys were appointed.

The applicant has applied for a grant of special administration to investigate and if appropriate prosecute an action for compensation under section 106 of the Powers of Attorney Act 1998 and for equitable compensation. It should be noted that under section 87 of the Powers of Attorney Act 1998 there is a presumption of undue influence in any transaction between the principal and his or her attorney. See Smith v. Klegg (2005) 1 Queensland Reports at 561.

The Powers of Attorney Act, section 106 provides that an attorney may be ordered by a Court to compensate the principal, or if the principal has died, the principal's estate for a loss caused by the attorney's failure to comply with this Act in the exercise of a power.

In addition to the question of undue influence, the particular power relied upon here is the failure to exercise their power as attorneys honestly and with reasonable diligence as required by section 66 of the Powers of Attorney Act.

Importantly for this application subsection 106(3) provides that “If the principal or attorney has died the application for compensation must be made to a Court within six months after the death.” The Court may extend the application time but it is clear that the Act presumes that such an action should be taken promptly.

An application was initially made and the time for commencing the application has been extended. It was extended on the 16th of March 2006 for four weeks to enable, inter alia, the other siblings to be served. Disclosure was ordered on the 7th of April 2006 and time was extended to the 7th of October 2006.

On the 6th of October 2006 time was extended to the 6th of April 2007. The ordered disclosure has revealed the documents which provide prima facie evidence of the failure to exercise their power as attorneys honestly and with reasonable diligence. The alleged loss to the estate of the deceased is $93,265.50 with regard to the first respondent and $25,000 with regard to the second respondent.

Only a trial can determine whether the allegations of failure to comply with section 66 of the Powers of Attorney Act are correct or not and whether or not the presumption of undue influence is negated. In those circumstances it does seem to me to be appropriate to make a limited grant under section 6(3) of the Succession Act so that the applicant may take action to protect and if necessary restore the estate.

It was urged by the respondents that this matter should have time extended yet again so that the question of the validity of the wills can be determined first but if, as is argued by the respondents, Daniel and Ralph would be likely to be appointed the executors on the grant of probate, it seems abundantly clear that they would be unwilling to take action on behalf of the estate to restore to the estate moneys which they have allegedly wrongly taken from the estate. In those circumstances it appears to me there is no point in further delaying the matter.

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HER HONOUR: The respondents' costs of this application be the respondents' costs in the proceedings commenced pursuant to this order.

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HER HONOUR: The order will be as per draft as amended which I will initial and place with the papers. Thank you both very much for your assistance with this matter. I found the submissions in both sides very useful. Thank you.