Budulica v Budulica[2016] QSC 184

SUPREME COURT OF QUEENSLAND 

Section 41(8) direction sought

1. Slavica (called “Sylvia”) Budulica seeks a direction pursuant to s 41(8) of the Succession Act 1981 (“the Act”) that the Court hear and determine her application for further provision out of the estate of her mother, Katica Budulica (“Katica”). 
2. Section 41(8) of the Act provides:

“Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased.”

Family

3. Katica died on 8 December 2013. 
4. Sylvia’s further provision application was made when it was filed in the Court on 10 June 2015, about nine months after the expiration of the nine months limitation period prescribed by s 41(8). 
5. Katica had married Stanko Budulica (“Stanko”) before Sylvia was born on 6 June 1962.
6. The only other child of the marriage, Stanislav (called “Stan”), is about a year younger than his sister.
7. Stanko died on 1 January 2001.
8. Katica made her will in December 2000.  It provided that, in the event that Stanko predeceased her, Stan was to be her executor and trustee, with her entire estate to be held on trust for Stan and Sylvia “in equal shares”.

Further provision claim contemplated

9. Within months of Katica’s death, Sylvia had retained a solicitor, Ms Chatterton, the principal of SKC Lawyers, to advise her concerning her mother’s estate.
10. In March 2014, Ms Chatterton told Sylvia that any family provision application needed to be filed within nine months of Katica’s death. 
11. On 28 March 2014, Ms Chatterton wrote to Stan, as executor of Katica’s estate, notifying Sylvia’s intention “if a settlement cannot be reached, to commence proceedings for an order for provision” under the Act; asking for a copy of the will as well as for details of the assets and liabilities of the estate “to enable our client to assess their (sic) position prior to commencing proceedings” for such further provision; and proposing that no distribution take place pending resolution of Sylvia’s claim.
12. Stan retained Keith Mole and Associates as his solicitors. 
13. By letter dated 4 April 2014 to SKC Lawyers, Mr Mole provided a copy of the will; recorded Stan’s instructions concerning estate assets and their values; said that the major assets are two properties; and mentioned Stan’s proposal that Sylvia accept one of those properties as her share of the estate.  One of the properties was at 76 Barton Road, Hawthorne; the other at 92 Stuart Street, Bulimba.  Each had an estimated value of approximately $1M, according to Mr Mole’s letter.  Other estate assets were said to be of relatively little value. 
14. Mr Mole’s letter asked Ms Chatterton to say why Sylvia claimed that “improper provision” had been made for her by the will; what she was seeking; and the rationale for her claim.
15. The letter sought a reply within a fortnight.  There was to be no response for five months.

Advice of counsel

16. In August 2014, Ms Chatterton told Sylvia that her prospects of success in litigation seeking further provision out of Katica’s estate were not good. 
17. A few weeks later, Sylvia met with Ms Chatterton and participated, by telephone, in a conference with senior and junior Counsel about those prospects.  The barristers were not encouraging.  Ms Chatterton’s letter to Sylvia two days after the conference confirms:

“…that there are no grounds (either moral or legal) to make a claim…in the form of a Family Provision Claim…This is because there are two properties contained in your Mother’s Estate with an estimated value of $1,000,000 each and your brother, as Executor…has offered to transfer to you one of those properties.”^[1]

18. The letter reveals that Sylvia had consulted SKC about litigating other claims against her brother.  One related to property at 17 Jamieson Street, Bulimba.  In late 1986, Stanko and Stan were registered as proprietors, as joint tenants, of that property.  By right of survivorship, Stan became sole proprietor on Stanko’s death.  Sylvia, however, would not accept that she has no interest in 17 Jamieson Street and wanted Stan to transfer a half share in it to her.^[2]  Ms Chatterton’s letter records that:

“… your father’s intention with respect to this property was that his share of the property would transfer to his wife, your mother…upon his death and that upon your mother’s passing, her share would be transferred to you so that each of yourself and your brother…held a one half share in this property.

This is the property which you wish to make a claim against Stanislav so that a one half share of same is transferred to yourself as was your father’s intent.”

19. Ms Chatterton’s letter continued:

“As discussed, our advices to you are as follows:-

• With respect to your mother’s estate, we advise you to accept the property situated at 76 Barton Road, Hawthorne as your one half share of the Estate.

…

• In the event that you wish to proceed in an application with regard to property currently held by your brother, namely 17 Jamieson Street, Bulimba, then such Application can be funded by the sale proceeds from the property obtained by you from your mother’s estate.  We confirm the advices provided to you by both this office and the barristers that such an Application will be complex and there is no guarantee whatsoever that your proposed Application will be successful.

As has been explained to you previously, your brother, as Executor of your mother’s Estate, is able to disburse the Estate pursuant to the terms of the last Will of your mother 9 months after her death which, by our calculations, will be the 9 September, 2014.  Any Application under the Succession Act for a Family Provision Claim to prevent such disbursement will need to be made prior to this date.  However, as advised above, it does not appear that in all of the circumstances with respect to your mother’s Estate that you have any grounds to make such an Application.

To move this matter forward please provide your signed instructions to accept 76 Barton Road, Hawthorne as your benefit from/share of your mother’s Estate and provide those written instructions to this office prior to 12 noon on Friday 5 September, 2014 to enable us to have sufficient time to then correspond with the Estate’s solicitors to advise that you are accepting their client’s offer of that property as set out in their letter of the 4 April, 2014.

As you are aware, due to the complexity of your proposed Application against your brother with respect to 17 Jamieson Street, Bulimba you will need to fund such Application as all barristers whom I have contacted have advised that they are not prepared to take the matter on a speculative basis as realistically such an Application could take some time (several years) to be resolved.  We would suggest that once you have had 76 Barton Road, Hawthorne transferred to yourself that you could perhaps then sell that property to fund such proposed Application.” 

20. Sylvia gave her written instructions that she would accept the property at 76 Barton Road as representing “my one-half share of the net assets of the Estate…”.  The next day, Ms Chatterton wrote to Mr Mole, conveying those instructions, asking that “the necessary transfer and acceptance documents” be provided “as soon as possible”.  This letter made no mention of a family provision claim. 

Decision not to sue

21. A few days later, the nine month limitation period imposed by s 41(8) expired without a family provision claim having been instituted. 
22. Sylvia had acted on the advice of her barristers and solicitor that such a claim would not succeed and decided not to commence such a proceeding.

Strife

23. On 17 September, Ms Chatterton wrote to Mr Mole, asking when she could expect to receive the Barton Road transfer documents.  The inquiry was repeated on 29 September.  Mr Mole replied on 22 October, seeking information needed to complete the form of transfer, adding that Stan could not locate the certificate of title.  His letter also set out “anticipated future steps” in the administration of the estate.  None envisaged that a family provision claim might be made. 
24. On 13 November, Ms Chatterton wrote to Mr Mole giving details to facilitate completion of the transfer for Barton Road and asking for the “transmission documents” within a fortnight.  Consistently with Sylvia’s decision not to pursue a family provision claim, again, there was no mention of any such claim.  But there were complaints about Stan’s performance of his duties as executor, reference to Sylvia’s having obtained a “Protection Order” against Stan, and a warning that were Stan to persist “with his apparent resistance to dealing with the estate in a timely fashion, …it may be…that another Executor should be appointed…”.
25. As might have been expected, that letter was not well received by Stan. 
26. On 2 December 2014, Mr Mole wrote a long letter to Ms Chatterton.  The letter mentioned Stan’s distress at the suggestion that he had “delayed matters or acted inappropriately” in administering the estate.  Sylvia was asked to withdraw those allegations as well as the “threat to remove him as executor”.  The letter was not conciliatory.  It included detailed assertions of bad behaviour by Sylvia, while her allegations against Stan were characterised as “spiteful” and her claims “illegitimate”, disgracing Katica’s honour.
27. Mr Mole’s letter invited Sylvia to “put her grievances behind her”.  Taking much offence at the letter, she had no intention of doing that. 
28. Sylvia is hostile to Stan and attributes bad faith and misconduct to him in many things, including his administration of Katica’s estate.  Among the many recriminations, Sylvia accuses him of: assaulting her with a garden hoe when she was 5 or 6 years old; engaging in a four year incestuous relationship that began before she was 15; informing a mental health facility that she was suicidal and then persuading her son and daughter to say that they, not Stan, had lodged the report; bullying her into disposing of her house at undervalue; taking advantage of Stanko’s inability to read and write English to acquire joint interests in land with him that passed to Stan by survivorship rather than to Katica; and alienating her from relatives, in Australia and overseas, by spreading malicious lies.^[3] 

Change of mind

29. By 10 December, motivated^[4] by the contents of Mr Mole’s letter, an embittered, vengeful Sylvia had telephoned Ms Chatterton to say that her brother “had lied all the way through” the letter and that she now wanted to institute two court proceedings: to remove Stan as executor; and to claim further provision out of Katica’s estate.
30. On 10 December, Sylvia tried to persuade Ms Chatterton to prosecute a family provision application on a speculative fee basis.  Ms Chatterton again advised her that she did not have good prospects of obtaining more from such an application than Stan had offered by proposing that she take a transfer of the estate property of her choice.  She also reminded Sylvia that the nine month time limit had expired three months earlier.
31. Ms Chatterton wrote to Sylvia on 10 December in these terms:

“It would appear that the Estate of your late mother consisted of the two real properties (one of which is being transferred to yourself) and minimal funds due to the way that your mother’s finances were dealt with prior to her death.

…

We note that since the receipt of the letter from Keith Mole & Associates, you have contacted this office and advised that, in contrary to your current written instructions signed by you on or about 1 September, 2014, you now wish to make an Application to remove your brother as Executor of your mother’s Estate and, further, make an application for further provision from your Mother’s Estate as you have now instructed that you relied upon your mother for the payment of your day to day expenses.

…

We advise that based on the current disclosure from the Executor it is unlikely that you would receive more from your Mother’s Estate than what has been offered, that is, a property which is worth approximately $1,000,000.00.

…

In the event that you wish to proceed on the path that you have indicated by telephone that you wish to follow, namely that of litigation to have the Executor removed and the Grant of Probate revoked and make a claim against the Estate for further provision to be made by yourself, we regret to advise you that in all of the circumstances of this matter, we would be unable to assist you further.”

32. The day that letter was written, Sylvia gave Ms Chatterton her written instructions that:

“…I acknowledge that SKC Lawyers have informed me that based on the facts and circumstances of this matter, that I do not have good prospects of succeeding in obtaining more than what has already been offered to me by the Executor of my Mother’s Estate and that I am out of time pursuant to the relevant Act to make such an application for further provision out of my mother’s Estate…”

Different solicitors

33. On 2 February 2015, Sylvia’s new solicitors, Ormeau Legal, wrote to Mr Mole.  The letter records that:

“After careful consideration our client would be pleased if you could attend to transferring the property located at 76 Barton Road, Hawthorne into our client’s name.”

34. The letter sought other information and documents.  It also informed Mr Mole that Ormeau Legal had firm instructions that, absent a satisfactory response within seven days, they were to prepare an application to remove Stan as executor.  There was no mention of a family provision application.
35. In late February 2015, Sylvia retained Robbins Watson as her new solicitors.  On 6 March 2015, those solicitors wrote to Mr Mole to put Stan “on notice” of Sylvia’s “intention to make a claim” for further provision out of the estate.  The letter acknowledged that such an application was out of time.  Stan was invited to consent to an extension.  There was a request that the estate be preserved “pending the outcome of these issues”.  Specifically, Stan was asked to hold the transfer of the Barton Road property “in abeyance…” while investigations were conducted into the impact any distribution of the property in specie might have, especially with respect to capital gains tax.
36. Almost a year had passed since solicitors acting for Sylvia had last raised the prospect of a family provision claim.  And, as Sylvia appreciated, almost six months had passed since the nine month limitation period had expired. 
37. Stan had retained new lawyers by early April 2015: Mitchell Solicitors.
38. On 7 April 2015, Robbins Watson informed Mitchells that they were seeking counsel’s opinion before Sylvia determined whether she would make a family provision application. 
39. On 7 May 2015, Mitchells wrote to Robbins Watson.  This letter dealt with a number of matters concerning administration of the estate, including that Mitchells were waiting to learn whether Sylvia intended to apply for an extension of time within which to institute a family provision application.
40. On 10 June 2015, the present application making Sylvia’s family provision claim and seeking an extension of time to bring it was filed. 
41. With a letter dated 22 June, Robbins Watson delivered a copy of the application to Mitchells.  The letter also said:

“Our client is currently awaiting the provision of Counsel’s advice and accordingly proposes that no steps be taken in relation to this matter, particularly, that the matter not be listed for directions at this time.”

42. Probably influenced by a concern about capital gains tax if Sylvia took a transfer of the Barton Road land^[5], a different approach to the distribution emerged with Robbins Watson’s letter of 17 July 2015, which informed Stan’s solicitors that:

“Our client requires your client to immediately realise these assets in particular, the real properties by selling them.”^[6]

43. Nothing was said about a family provision claim. 
44. In a letter to Robbins Watson dated 4 August 2015, Mitchells recorded that, although Sylvia had given notice of intention to make a family provision claim in March 2014, “this has progressed only so far as an application filed out of time on 10 June 2015 with no affidavit material in support”.
45. An affidavit in support of the application was filed about six months later: on 2 February 2016.

Explanation for the delay

46. No evidence was adduced to show^[7] that Sylvia lacked the funds to have an originating application prepared, filed and served.  And between early September 2014, when the s 41(8) limitation period expired, and 10 June last year, when the application was filed, apparently no new fact was discovered, by Sylvia or her lawyers, that bore materially on her prospects of success; nor was there new, more optimistic, legal advice.
47. Sylvia’s decision in September 2014 not to pursue a family provision claim was not made because she chose to accept the Barton Road property as her entitlement under the will.  She did not forego a family provision claim by taking one of the two estate properties in specie.  As she must have appreciated, she could have taken Barton Road as her half share of the estate and still prosecuted a family provision claim. 
48. Other explanations for not pursuing the claim were suggested in argument: as examples, that Sylvia’s medical problems had some influence; or that she delayed prosecuting a family provision claim while she waited for her brother to transfer Barton Road. 
49. These are afterthoughts, advanced to suggest that Sylvia did not change her mind in reaction to the slights she felt on reading Mr Mole’s 2 December letter.^[8] 
50. In September 2014, when Sylvia knew that the time limit prescribed by s 41(8) was about to expire, she made a considered decision not to institute the claim.  She did so on advice from senior and junior counsel and her solicitor.  And, subject to the CGT issue,^[9] that advice is not shown to have been uninformed or plainly wrong.

Facts material to chances of success

51. Sylvia is in her early 50s.  She divorced in 1995.  She is not in a relationship. 
52. Sylvia has three children.  None is dependent.  None sees, let alone supports, her, financially or in any other way.  Those things were also that way at Katica’s death.
53. Sylvia ceased employment in January 2013 in circumstances that are unclear.  She then received a Newstart allowance of about $36 daily. 
54. Katica supported Sylvia financially in the year before her death, paying some of her bills^[10] and repaying an $18,000 personal loan.
55. Since March 2014, Sylvia has relied on a disability support pension for her income.  By July 2014, her fortnightly pension payment was $842.80. 
56. Sylvia owns her own home.  It is worth about $500,000.  A mortgage secures about $75,000.  Sylvia intends to repay that debt when she can.
57. Sylvia accessed $25,000 of her superannuation in January 2014.  At 30 June 2015, her superannuation fund balance was about $1,600.  Otherwise, she has little in the way of assets.
58. Sylvia claims to have contributed to the assets that passed into Katica’s estate.  While her father was alive, she maintains, she laboured towards the improvement and maintenance of the family properties for extended periods in a variety of ways.  While she contributed so much, Stan, she says, was in the Air Force, at Amberley, and “only came home on weekends”.^[11]  But not much weight can be accorded to Sylvia’s claims about her contribution to her parent’s assets.  That is because the evidence in support of it is Sylvia’s, and she is not a reliable historian.^[12]
59. Sylvia’s health was, it seems, poor before Katica died.  It has not improved since.  She deposes to suffering from many conditions, including:  significant dental problems; sleep apnoea; depression; anxiety; osteoporosis; degenerative disease of the spine; spurs in her feet; irritable bowel syndrome; diverticulitis; tumours/cysts on the adrenal gland and kidney; lesions on the lungs; chronic fatigue; asthma; impaired hearing; high blood pressure; and borderline diabetes.
60. She expects that her poor health means that she will never work again.  There are other likely consequences, such as:
    • Loss^[13] of the disability support pension would mean that Sylvia would need to purchase private health insurance;
    • The cost of the extensive treatment for her teeth is estimated at $60,000-$90,000;
    • There will be significant ongoing outlays even if Sylvia is able to secure private health insurance;
    • In the longer term, she may require private nursing care or domestic assistance for tasks such as cleaning and gardening.  Although she intends to live independently for as long as possible, she does not have a support network and anticipates that eventually she may be forced into aged care.  Currently, aged facility accommodation bonds range between $200,000 - $400,000.^[14] 
61. Stan has not provided information concerning his assets or liabilities.  Sylvia claims that he owns nine properties and has superannuation worth $600,000.  However that may be, the absence of evidence concerning Stan’s financial circumstances warrants an inference that he is sufficiently prosperous that another $1M would not, in the scale of things, greatly enlarge his wealth.^[15]
62. On the other hand, Sylvia’s plight might be significantly alleviated over the years were her share of her mother’s estate increased by, say, another $750,000.
63. Sylvia’s case that “inadequate provision…” was made for her by her mother’s will largely depends upon such contentions as that, at Katica’s death:  (i) Sylvia was in poor health; unemployed, with no real prospect of returning to paid work in future in view of her disabling medical conditions; confronting large medical and dental expenses; without income, except for the Newstart allowance; so poor that her mother assisted her financially in the year before her death; and in need of a financial buffer against the uncertainties and vicissitudes of life ahead^[16]; and  (ii) the only other person with a claim on Katica’s bounty, Stan, was independently wealthy, in good health, with no dependents, and in no need of more money, then or in the foreseeable future. 
64. Those factors do offer some support for a case that Katica might have been expected to have left Sylvia more than she gave Stan.
65. But there are countervailing considerations.
66. When Katica died, Sylvia owned her own home, unencumbered, valued at about $500,000. 
67. Under the will, Sylvia could have been expected to receive at least $750,000. 
68. Immediate health care and insurance needs could have amounted to $100,000.  Ongoing health-related expenditure might be $16,000 or so annually.  Ordinary living expenses may be as low as $7,000 annually.
69. Assuming a life expectancy of 37.40 years, and adopting a multiplier of 5% for 37 years, $22,861 yields a present value of $392,871.24.^[17]  On that approach, advanced for Stan, an inheritance of $750,000 more than suffices to repay the $75,000 loan, satisfy immediate expenses of about $100,000, and meet all future living costs and health care expenses.^[18]
70. For Sylvia, another approach is suggested:  if she has a life expectancy of 34.45 years,^[19] to fund an income of $40,500 per year^[20] for the rest of her life would require a capital sum of $622,500.  On this approach, in view of her immediate need to discharge the mortgage on her home and pay for health care needed now, more than $750,000 is required.
71. No concluded view on what might be awarded can be formed at this time.  For one thing, not all the evidence that would likely be adduced at a hearing is available now.  In particular, as Sylvia attaches so much significance to her health, no doubt a judge who heard the application would be favoured with evidence from medical practitioners concerning her conditions, their prognoses, their likely impact on life expectancy, as well as information on the predictable expenses of treatment and care, at home or in an aged care facility. 

17 Jamieson Street

72. It is said for Sylvia that there are reasonable prospects of establishing that Katica was beneficially interested in 17 Jamieson Street, and, on that basis, that the value of the estate is greater than about $1.5M.  Such a larger estate would, Sylvia contends, the more readily enable a conclusion that the 50% provision made by her mother’s will is not adequate for her proper^[21] maintenance or support.
73. However, there is no satisfactory evidence to show the worth of 17 Jamieson Street^[22].  Moreover, if Katica was entitled to a half interest in 17 Jamieson Street, the value of Sylvia’s 50% of the estate increases by a quarter of the worth of that property.  Depending upon the value of the land, that increased inheritance could tell against the notion that Katica’s will did not make “adequate provision…” for her.

Assessing prospects

74. Sylvia has prospects of establishing that “adequate provision…” was not made for her by Katica’s will, satisfying the jurisdictional first stage inquiry.^[23] 
75. Even so, she has no reasonable prospect of obtaining an order for further provision.
76. Sylvia can still take the Stuart Street property.  In November 2014, it was valued at $1.2M.  It will not attract CGT on realisation if sold for the value of the property at Katica’s death.  On this basis, as her share of the estate, Sylvia would, it seems, receive appreciably more than $1M after sale expenses are satisfied, which is more than ample for her “proper maintenance and support”. 
77. In those circumstances, a discretion to order further provision out of the estate is most unlikely to be exercised in her favour.

Consequences of delay

78. The delay in commencing the family provision application has not materially adversely impacted on the administration of the estate or yet occasioned Stan any significant prejudice.  But if the application proceeded to a hearing, there would be expenses for the estate and, depending on progress with the sale of the two estate properties, some delay in distribution to Stan of his share.

Weighing the factors^[24]

79. There are poor prospects of success in the family provision application : a consideration that points strongly against an extension of time.  And the reason her application was not made within time does not favour the extension either. 
80. Even if the circumstance that Sylvia can still have Stuart Street did not require refusal of her application for family provision, that she has no reasonable prospect of achieving a more favourable result by pursuing the litigation than she can secure by accepting her brother’s offer and taking the Bulimba property would mean that the extension of time should be refused.^[25]
81. Despite the absence of significant prejudice to Stan, the justice of the case does not require an extension of time.

Disposition

82. The application is dismissed. 
83. I will hear submissions on the form of order and costs.