Cope v The Public Trustee of Queensland (as Administrator of the Estate of Zdzislaw Delmaczynski) Deceased [2013] QDC 176 (5 August 2013)

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CITATION:	Cope v The Public Trustee of Queensland (as Administrator of the Estate of Zdzislaw Delmaczynski) Deceased [2013] QDC 176
PARTIES:	WANDA COPE (Applicant) v THE PUBLIC TRUSTEE OF QUEENSLAND (AS ADMINISTRATOR OF THE ESTATE OF ZDZISLAW DELMACZYNSKI) DECEASED (Respondent)
FILE NO:	BD1450/13
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court of Queensland at Brisbane
DELIVERED ON:	5 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	1 and 2 August 2013
JUDGE:	Andrews SC DCJ
ORDER:	That the last will of Zdzislaw Delmaczynski (deceased) be read and construed as if clause 3 provided that the residue be given to Szczeslawa Bronislawa Delmaczynski in lieu of the three beneficiaries named in clause 3 That Wanda Cope’s application for adequate provision out of the estate of the deceased be dismissed That the costs of the applicant Wanda Cope and of the respondent be paid out of the estate on an indemnity basis
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – small estate – where testator had three children from first marriage – where testator had no contact with those three children in fifty years – where testator’s estate derived from his second wife – where second wife’s adult daughter became step daughter of testator - where second wife died after short marriage – where no provision by second wife for her daughter the testator’s step daughter – where testator had short third marriage – where testator made no provision for third wife or for adult step daughter from second marriage – where third wife contributed nothing to estate – where third wife emigrated to Australia for testator – where third wife nursed testator
COUNSEL:	C Brewer for applicant Cope SB Delmaczynski for herself without counsel Otto for respondent
SOLICITORS:	McInnes Wilson Lawyers for the applicant Cope Official Solicitor to the Public Trustee for the respondent

[1] The widow and step-daughter of Zdzislaw Delmaczynski (Deceased) (“the testator”) seek further provision from the testator’s estate (“the estate”) pursuant to s 41 of the Succession Act 1981 (Qld).

[2] The applicant Wanda Cope (“Ms Cope”) is the step-daughter of the testator. Ms Cope’s mother, Leokadia Delmaczynski was married to the testator from 16 February 1998 for four years and seven months until she died on 29 September 2002 aged 69 years. Ms Cope applies[1] for an order that adequate provision be made for her proper maintenance and support out of the estate and that the costs of and incidental the application be paid out of the estate on an indemnity basis.

[3] Szczeslawa Bronislawa Delmaczynski (“Ms Delmaczynski”) was the wife of the testator at the time of his death on 18 March 2010 when the testator was aged 82 years. Ms Delmaczynski married the testator on 12 February 2006 when she was about 63 and he about 78 years of age. Their relationship began in Poland where they met in 2004.

[4] A fortnight after Ms Cope’s application was filed, Ms Delmaczynski filed a separate family provision application (BS11856/11) in the Supreme Court on 29 October 2010 but filed a notice of discontinuance on 17 January 2012. On the same day, in this proceeding BD1450/13, Ms Delmaczynski filed a notice of address for service stating an intention to apply for provision out of the estate.

(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant...”

[6] The testator died on 18 March 2010. The last will of the testator was dated 9 March 2007. It named Wladyslaw Zbigniew Delmaczynski who is also known as Zbigniew Wladyslaw Delmaczynski as executor. By order made on 20 July 2012, that named executor was removed and it was ordered that the application for adequate provision out of the estate of the testator be continued against the Public Trustee of Queensland as Administrator appointed by order to administer granted on 7 June 2011.

“ I GIVE all my estate both real and personal to my trustee upon trust... to give the residue... to such of the following persons as survive me, JADWIGA WOJCIK of ... Poland, ZBIGNIEW WLADWYSLAW DELMACZYNSKI of ... Poland and KAZIMIERZ DELMACZYNSKI of ... Poland, and if more than one in equal shares as tenants in common...”

[8] Ms Delmaczynski, describes the beneficiaries as the nephews and niece of the testator’s late brother[2] while they describe themselves as children of the testator.[3] I accept that they are his children.

[9] On 24 January 2011 the Public Trustee began the administration of the testator’s estate. On 4 October 2011 the estimated assets and liabilities and estimated values of assets in the estate of the testator as known to the Public Trustee as at the date of death were then as follows:

($6,415[6] less $2,500 received from Centrelink towards the cost of the funeral[7])

[10] The Public Trustee has estimated the net value of the testator’s estate as at 30 July 2013 at $184,843.21, comprising the following assets and liabilities:[8]

the funeral less $2,000 paid by Ms Delmaczynski using the testator’s cash[11])

interest due on administration expenses incurred and paid by the Public Trustee $33.89

[11] The Public Trustee anticipated that it would incur the following additional expenses:[12]

[12] Ms Cope estimated that she will incur legal costs of $59,000 to the end of a two day trial.[13] There is no evidence about any legal costs incurred by Ms Delmaczynski.

[13] Before trial, the legal costs and outlays due by the Public Trustee to the official solicitor to the Public Trustee were approximately $31,000.00 including GST. It was estimated that the further legal costs and outlays for a one day trial would be approximately $15,700.00 including GST and for a two day trial approximately $22,600.00 including GST.

[14] As the trial took only one day, considerable costs of a second day were saved. Although the net value of the estate will ultimately depend on the sale price achieved for the Perryman Court property less selling costs, taking the above matters into account, it is reasonable to proceed on the basis that the net distributable value of the estate is likely to have been reduced to about $97,000.

[15] The property at 5 Perryman Court, Collingwood Park, has been appraised only. As at 29 June 2012, the property was appraised at between $265,000 and $280,000.

[16] Ms Cope was born on 26 June 1952. She is the only child of Tadeusz Langa, and his wife, Leokadia.[14] Her parents had their matrimonial home at 25 Morland Street, Mt Gravatt, which they purchased when Ms Cope was in high school in the mid- to late-1960s.[15] Tadeusz died on 5 February 1990. Upon his death, Leokadia succeeded to the Morland Street property by way of survivorship.[16]

[17] It is not clear from the evidence when the testator met Leokadia. However, he accompanied her to the twenty-first birthday party of Ms Cope’s eldest son, Christopher, in 1994, and Ms Cope had met him once or twice before then at the Morland Street property.[17]

[18] It is clear that Ms Cope disliked the testator; the feeling was obviously mutual. Ms Cope had enjoyed a very close relationship with her mother. Their relationship “changed very rapidly” once the testator “came onto the scene”. She thought the testator had two sides: he was very nice when other people were present, but when it was only family, he was very rude. His influence on Leokadia was such that she became increasingly isolated from Ms Cope. At that stage, the testator was still living in his housing commission unit in East Brisbane, and visiting Leokadia at the Morland Street property. Ms Cope planned her get-togethers with Leokadia for days when the testator would not be there, but because Leokadia was “never really sure” when he would be visiting her, in practice, Ms Cope’s visits became less frequent. Leokadia did not drive, so she was dependent on Ms Cope to visit her and for Ms Cope’s family to take her to appointments. [18]

[19] After Tadeusz’ death, Leokadia spent some months living with Ms Cope, before moving back to the Morland Street property. She felt uncomfortable living there, however, and expressed the wish to buy a brick house. In 1994, she put the Morland Street property on the market, and found a new house at 5 Perryman Court, Collingwood Park.[19]

[20] Leokadia sold the Morland Street property for $115,000, and bought the Perryman Court property for $103,500. Both contracts were in Leokadia’s name alone.[20] A contemporaneous settlement was arranged for 16 September 1994.[21]

[21] The transfer provided at settlement transferred the Perryman Court property into Leokadia’s name alone. It was signed on Leokadia’s behalf by her solicitor on 19 September 1994.[22]

[22] On the same day, another transfer was signed, by which Leokadia transferred the property to the testator and herself as joint tenants. Leokadia herself signed as transferor. Her solicitors and the testator’s solicitors signed it on their behalf as transferees.

[24] It is not clear from the admissible evidence why this was done. Leokadia told Ms Cope that she had been told by the testator that he would not look after her or be with her at all if she did not transfer the property into both their names.[24] Although Ms Cope gave evidence of a conversation with her mother to that effect, that conversation is not evidence of the truth of what her mother said.

[25] There is other evidence to the effect that Leokadia was of two minds about transferring an interest in the Perryman Court property to the testator.[25] On 17 March 1995, her solicitor, Michael Bowers of Hillhouse Burrough McKeown, wrote to her, referring to discussions he had had with her “over the last few months”. He recorded that he had advised her against transferring an interest in the Perryman Court property to the testator, “but you insisted upon doing so”. Then he said:

“Several months after this occurred you attended at my office with a friend, in tears complaining that the third party had not carried out his side of the bargain. You indicated that he had told you that if you transferred half the house to him that he would take care of you.”

His advice to Leokadia was that she may be able to take action to set aside the transfer of an interest in the property to the testator (he recorded that she did not want to do that), or sever the joint tenancy to avoid her interest in the property going to the testator upon her death. He recorded that she had signed a form to sever the joint tenancy, but had taken no further action.

[26] Ms Cope’s evidence is that Leokadia refused Ms Cope’s offer to help her move into the Perryman Court property, because the testator did not want any help from the family with the move.[26] Once Leokadia had moved, Ms Cope’s contact with her became very limited. The testator answered the phone when Ms Cope rang, and when she asked to speak to Leokadia, would say that “she is sick” or “she doesn’t want to be disturbed” or “she is lying down”. On one occasion, Ms Cope managed to speak to Leokadia, who denied that she had been unwell, and said that the testator “is always making things up like that”. She was unaware that Ms Cope had been calling for her.[27]

[27] Ms Cope also found it difficult to visit her mother. On one occasion when she did so, the testator arrived home, saw her, and “walked over towards me shaking his fist at me”. Leokadia asked Ms Cope to leave, saying that “it’s better if you go because it will be better for me later on”.[28]

[28] In early 1998, Ms Cope visited her mother at the Perryman Court property. Leokadia’s cleaner told Ms Cope that Leokadia had not been feeling well. Ms Cope had a discussion with the testator, during which she said she thought Leokadia needed better care, and that, as her next of kin, she should be able to look after her or help her. He said, “I’ll fix that”.[29] On 16 February 1998, the testator and Leokadia were married. Ms Cope was unaware of their marriage until some weeks later.[30]

[29] After her marriage to the testator, Ms Cope hardly saw Leokadia. When she telephoned, mostly the testator answered and would not put Leokadia on the line. He would say, “I’m looking after her, I’m her next of kin, I’m her husband”, and would get “quite irate”.[31] He told Ms Cope that she was not welcome in his house unless she first obtained his permission.[32]

[30] In September 1998, Leokadia was admitted to a nursing home. Ms Cope was unaware of this until some time later. She learned of it through her aunt. She started to visit Leokadia regularly. Leokadia was unwell but alert. In October 2000, Leokadia was later moved to another nursing home. Ms Cope was unaware of the move, and it took her a few weeks to track her mother down.[33]

[31] On 20 December 2000, the Perryman Court property was transferred into Leokadia’s name alone.[34] There is no evidence about why this was done. Nor is there any evidence about why, on 2 February 2001, it was transferred back into the joint names of Leokadia and the testator.[35] Both transfers were signed by the same solicitor on behalf of the transferees. Both were expressed to be by way of “gift”.

[32] In February 2001, Leokadia asked Ms Cope to organise a solicitor to make a new will and transfer the Perryman Court property into her and the testator’s name as tenants-in-common, rather than as joint tenants. She told Ms Cope that “she now wanted her share of the house to be passed onto me upon her death”.[36] Leokadia made a will on 26 February 2001 by which she gave her estate to Ms Cope.[37] She also signed a form severing the joint tenancy, but it was never lodged.[38]

[33] Leokadia died on 29 September 2002. The hospital could not locate the testator, so Ms Cope arranged her funeral. After Leokadia’s death, Ms Cope had no further contact with the testator.[39]

[34] Ms Delmaczynski and the testator met in 2004 in Poland. They lived together for four months and decided to get married. The testator asked her to join him in Australia. The decision to do so was a difficult one for Ms Delmaczynski. She had lived her whole life in Poland; she was, at that time, 62 years old; she could not speak English; and she would leave behind her daughter and grand-daughter. Nonetheless, she decided to emigrate to Australia to be with the testator. She arrived on 12 July 2005 and immediately moved into the Perryman Court property to live with the testator.[40]

[35] They were married in Melbourne on 12 February 2006.[41] Contrasting with Ms Cope’s dim view of the testator, Ms Delmaczynski’s view of him was glowing. He was “a very caring and protective person”, who was “very anxious about me and my safety and well-being”, “an individualist, a home-loving loner, an intellectual type and at the same time a witty, jovial, cheerful and likeable person”.[42] Yet, thirteen months after they married, the testator made his last will, making no provision for her, leaving his estate to his three children he had left to their mother’s care fifty year’s before.

[36] Ms Delmaczynski became “highly engrossed in work in the house and our garden – I smartened up the interior, maintained the garden and make [sic] sure all things are in order”. She and the testator ate their meals together and went shopping together. They enjoyed sitting on the patio overlooking the garden. They had discussions about various subjects. Twice a month they went to church, after which they enjoyed “community meals”. They tended to keep to themselves.[43]

[37] During the last three years of their marriage, Ms Delmaczynski cared for the testator. He had cancer, and underwent an operation in 2008. At times he was bed-ridden, but at other times he was able to enjoy leaving the house. He was frequently admitted to hospital. Ms Delmaczynski refused to entertain the idea of palliative care, preferring to care for the testator at home. She did all of the cooking and household chores, gave him his medication, assisted him with the use of his catheter and the toilet, cleaned up after him when he was incontinent, assisted him to bathe and to walk or get up from his bed. She took him to his appointments, and stayed with him when he was in hospital. There is no reason to believe that she was anything other than a dutiful wife to him.[44]

[38] On numerous occasions during their marriage, the testator told Ms Delmaczynski that the Perryman Court property was “ours”, that he would provide for her after he died and that “his last will was not going to be the final one”.[45] She was surprised to learn of the contents of his will. She believed that Jadwiga, Zbigniew and Kazimierz were the testator’s niece and nephews. The testator had not been entirely honest with her as to his past.[46]

[39] By the time she swore her affidavit filed on 17 January 2012, Ms Delmaczynski had been living in Australia for nearly seven years. She came to Australia with her personal possessions and about $5,000, of which she gave $1,000 to the testator to pay for her visa.[47] She has not worked remuneratively during that time, despite having trained as an economist. She was in receipt of a Polish invalid pension from 1988 and was 63 when she arrived in Australia on 12 July 2005.[48]

[40] Ms Delmaczynski was supported by, and cared for, the testator. From February to June 2010, she received a carer’s pension of $450 per fortnight. He received a pension of $550 per fortnight, giving them an annual income $26,000.[49]

[41] Since the testator’s death, Ms Delmaczynski has been in receipt of a widow’s pension. When she swore her affidavit on 29 October 2010, her pension amounted to $510 per fortnight or $13,260 per annum, and, after payment of her expenses, she was left with a surplus of $10 to $20 per fortnight.[50] By the time she swore her second affidavit in January 2012, her pension had increased to $720 per fortnight or $18,720 per annum.[51] She gave more up-to-date evidence about her expenses which is in exhibit 1. Taking into account her Polish and Australian pensions, her income is $25,610 per annum.

[42] By the time of the testator’s death, Ms Delmaczynski had savings of $3,000. She found $5,000 in cash in the testator’s bedroom, $2,000 of which she used to pay a deposit for his funeral. She received $2,500 from Centrelink towards the cost of the funeral, and paid off the balance of its cost of just over $6,000 in instalments. She opened an account in her own name into which she deposited her savings and what remained of the testator’s cash, she says about $8,000 in all.[52]

[43] At the time she swore her second affidavit, Ms Delmaczynski had no other assets in Australia. Her affidavits are contradictory as to her Polish assets. In her first affidavit, she swore that her only asset in Poland was a bank account with a balance of about $3,500.[53] In her second affidavit, she disclosed the existence of some other Polish assets, including a flat in Poznan that she and her daughter owned, the value of which she estimated at about $40,000, and a small share of her parents’ nine hectare farm, which she inherited in the 1980s and regards as unsaleable, and thus, valueless.[54]By exhibit 1, she explained that she transferred ownership of her interest in that apartment to her daughter in 2012.

[44] Ms Delmaczynski is 71. She has lived in the Perryman Court property since the testator’s death. She regards it as “all I have in this country”.[55] Having regard to her evidence about her income, I infer that she would be unable to rent alternative accommodation when she is no longer able to live in the Perryman Court property, unless provision is made for her from the estate.

[45] She has also had possession of the testator’s Honda Civic Sedan since his death.[56]

[46] At the time she swore her first affidavit, save for some blood pressure issues, which were under control, she was “in relatively good health”.[57]

[47] When she arrived in Australia, Ms Delmaczynski had “very little English”. She has attended an English language course since 2007. She considers Australia to be her home and intends to remain here. She would like to do some volunteer work in the Australian Polish community.[58]

[48] Ms Cope was married in 1972. She and her husband, Donald, have five children, all of whom are independent of them.[59]

[49] At the time she swore her first affidavit on 9 October 2010, Ms Cope worked as a home day care provider earning $2,645 per month or $31,740 per annum gross. Donald worked as a fuel tanker driver earning $2,920 per month or $35,040 per annum net, but had to give up working shortly before Ms Cope swore her affidavit due to longstanding back and knee pain. He has since been in receipt of a disability support pension.[60]

[50] Their expenses then totalled $4,794.96 per month or $57,539.52 per annum, including mortgage repayments on their home at 2 Banks Street, Redbank Plains, of $2,000 per month or $24,000 per annum.[61] Ms Cope’s taxable income in the 2010 financial year was only $19,034, with the result that, after tax offsets, she paid no tax apart from her Medicare levy of $54.60. She paid no tax in the 2011 financial year.[62]

[51] The result is that, at the time she swore her first affidavit, Ms Cope and her husband had a combined after-tax income of $66,725.40 per annum, against expenses of $57,539.52, leaving them with a surplus of $9,185.88.

[52] Ms Cope and her husband owned their Banks Street property and its contents, a Nissan Pathfinder 4WD, a caravan and a boat, the value of which she estimated at $270,000. They had $15,736 in a joint cheque account, giving them, at the time she swore her affidavits, jointly owned assets with an estimated value of $285,736.[63] Ms Cope had assets of her own valued at $1,800 and her husband had a bank account with a balance of $2,600.[64] Their only liability was a loan of $26,000 secured by mortgage over their Banks Street property.[65]

[53] Ms Cope had no superannuation of her own, but held an endowment policy which at maturity in August 2011 was worth $11,000. Donald had superannuation in two funds of $48,964 and $35,900.48 as at June and September 2009 respectively.[66]

The result, then, is that, at the time she swore her first affidavit, Ms Cope and her husband between them had net assets of $355,600.

[54] Ms Cope swore her second affidavit on 26 November 2011. By that time, her husband was in receipt of a disability support pension of $1,677.04 per month or $20,124.48 per annum. She was still able to work up to 25 hours per week earning $460 per fortnight or $11,960 per annum, and was in receipt of a carer’s pension of $529.26 per fortnight or $13,760.76 per annum. Between them they had an income of $1,763.28 per fortnight or $45,845.24 per annum.[67] She gave no evidence about their expenses at that time.

[55] Ms Cope had received the benefit of her endowment policy, which she had used to reduce the outstanding balance of their home loan. At the time she swore her affidavit, it was down to $4,000. The assets she owned with her husband were otherwise the same, save that the balance of their cheque account had been reduced to $4,000.[68] Including their personal assets, the result, at that time, was that between them they had net assets of $267,450, although she failed to make any mention of what had become of her husband’s superannuation.

[56] Ms Cope’s third affidavit was sworn on 30 July 2013. She now receives a pension of $609.40 and a carer’s pension of $115.40 per fortnight or $18,844.80 per annum. Her husband receives a disability support pension of $609.40 per fortnight or $15,844.40 per annum. Between them they have an income of $2,890.77 per month or $34,689.20 per annum. Their monthly expenses come to $2,556.88, leaving them with a surplus of $333.89 per month or $4,006.68 per annum.[69]

[57] They have paid off their house at 2 Banks Street, the value of which Ms Cope still estimates at $250,000, although there is no independent evidence as to its value. They still own their home contents, a Nissan Pathfinder 4WD and a caravan, but their cheque account has been reduced to $2,211.51. They have another bank account which has a balance of $36,000, which is what remains of Donald’s superannuation after it was used to discharge their mortgage and pay Ms Cope’s legal fees.[70] They have no liabilities. Including their personal assets, the result is that between them they now have net assets of $302,955.16.

[59] Ms Cope gave up work on 9 December 2011 in order to care for her husband, who had to give up his work due to longstanding back and knee pain.[72]

[60] Ms Cope has an irregular heart beat, which is regularly checked. She has aches and pains from caring for her husband. She has elevated iron levels which require her to give blood every three months.[73]

[61] Donald is awaiting an operation on his knee. His back and knee pain continues to worsen. He is an insulin-dependent diabetic, and suffers from high blood pressure and sleep apnoea.[74]

[62] I infer from Ms Cope’s failure to make any mention of her and her husband’s medical conditions in her affidavit sworn on 30 July 2013, that they have not deteriorated since she swore her second affidavit on 26 November 2011.

[63] The three beneficiaries named in the will provided the Public Trustee with affidavits detailing their respective financial positions. Those affidavits set out their circumstances and relationship with the testator. Although unsworn, they are admitted under s 92 of the Evidence Act 1978 (Qld) on the basis that they reside in Poland and it is not reasonably practicable to secure their attendance at trial.

[64] Jadwiga Wojciak is a daughter of the testator, born on 6 August 1952 and is aged about 61. She is a retired registered nurse who lives with her husband, a farmer receiving a welfare allowance who is aged about 65. They have four children: Marta, aged 40, an economist with an 18 year old child at school; Malgazorta, aged about 38, an economist with a dependent daughter at school and aged 14; Magdalena, aged 22, living with her parents and in tertiary study; Michael, aged 20, living with his parents and in tertiary study. Jadwiga has not had contact with the testator since 1961 when the testator left his Polish partner and their children. Jadwiga was raised and supported by her mother.

[65] Jadwiga Wojciak is a pensioner in Poland. Her and her husband’s combined monthly net income is the equivalent of AU$1,304.64 and their net monthly expenses and liabilities are the equivalent of AU$1,290.06 before considering the cost of home appliances, furniture, hairdressing, cosmetics, car maintenance, entertainment and insurance other than the compulsory state medical insurance and life insurance.

[66] Kazimierz Delmaczynski is a son of the testator and was born on 21 December 1959 and is now aged 53½. He is a welder and works for a building and construction company. His wife is the same age and works as a kindergarten teacher’s aide. They have three children. The eldest, aged 29, is a public servant. They have twins aged 25 who live with them and are tertiary students. Mr Delmaczynski has not had contact with the testator since 1961. Mr Delmaczynski was raised and supported by his mother.

[67] Kazimierz Delmacyznski is from Poland but works abroad. He has seasonal employment and no permanent income. The net income of himself and his wife monthly is the equivalent of AU$3,117.79 and their expenses the equivalent of AU$2,690.50 before he contributes for the cost of medication, coal and firewood, food and cleaning products for his mother and brother.

[68] Zbigniew Wladislaw Delmaczynski is the testator’s son. He is unemployed and living with his 84 year old mother in Poland. Both live on her pension, equivalent to AU$314.80 with monthly expenses equivalent to AU$307.34; that they reside in his mother’s house which requires repairs and maintenance. He looks after his mother who is sick and needs medication and rehabilitation treatment.

[69] Zbigniew was born on 22 March 1957 and is aged 56 now. He is a steel fixer but because of a health condition has been unemployed for several years and has no entitlement to welfare support. He is single and has no children. Like his brother and sister, he has not had contact with the testator since the testator left them in 1961. He was raised and supported by his mother.

[71] The Succession Act requires the court to carry out a two-stage process to determine whether an order for provision should be made. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the testator’s estate for the applicant.[76]

[72] The court does not have jurisdiction to re-write the testator’s will to accord with notions of fairness which one or other of the parties bring to the application. It has been called a human right that a person should be free to dispose of his or her property as he or she thinks fit.[77]

[73] What is proper will be more than the bare minimum necessary to ensure that an applicant is housed and fed.[78] What is proper may go beyond the provision of “the bread and butter of life”, and extend to “a little of the cheese or jam that a wise and just [testator] would appreciate should be provided if circumstances permit”. [79]

[74] A matter that may be relevant in determining the first stage test or jurisdictional issue in the step relationship situation is whether the stepparent’s assets have been derived in part from the funds or resources of the natural parent of the stepchild. [80] Where a stepchild received nothing from the estate of the natural parent one may more readily conclude that a wise and just stepparent would recognise a moral claim in a stepchild to maintenance or support from an estate which was derived, in whole or in part, from the stepchild’s natural parent. [81]

[75] The evidence in this case is unchallenged, that the large majority of the estate, 96.6% at the date of death, came from Ms Cope’s mother.

[76] At the first stage of the two-stage test it is necessary to ask whether the testator made adequate provision for the proper maintenance and support of each of Ms Delmaczynski and Ms Cope. The question must be asked and answered as at the date of the testator’s death.[82] Where the applicants or beneficiaries have made affidavits or statements they tended to give evidence about their circumstances at the time of making the affidavit or statement. I infer that, generally, their financial and personal circumstances were not materially different at the date of the testator’s death.

[77] As to Ms Delmaczynski’s application, postulating the testator as a wise and just husband, he should have taken into consideration the following facts:

1. The testator met Ms Delmaczynski in Poland in 2004, they began living together in Australia in July 2005, and they were married in February 2006. They had a relationship of about six years in total;

2. Ms Delmaczynski had lived her entire life in Poland. She left it behind, at the testator’s request, to emigrate to Australia. That was an isolating thing for her to do: she left behind her daughter and grand-daughter; she could not speak English; her only support once she arrived in Australia was the testator; upon her arrival, she had only about $3,000 to her name;

3. Ms Delmaczynski’s relationship with the testator was, apparently, a happy and, on her part, dutiful, one.

4. Ms Delmaczynski spent the last three years of their relationship caring for the testator while he suffered from his cancer and for her that must have been very burdensome, the significance of which should not be underestimated;

5. At the date of his death, Ms Delmaczynski was dependent on the testator for her accommodation, her own resources being insufficient to secure alternative accommodation;

[78] Slattery J said of a similarly short marriage where one spouse spent several of those few years caring for the other in Neil v Jacovou:[83]

But the estate’s argument [as to the shortness of the marriage] must be qualified by an understanding of the intensity of the last three and a half of those five years of marriage during his illness. In my view as much of the most testing side of married life was actually concentrated into those three and a half years as would be experienced in many far longer marriages.

[79] Ms Delmaczynski cannot reasonably afford rent. I find that the testator failed to make adequate provision for her proper maintenance and support of Ms Delmaczynski.

[80] At to Ms Cope’s application, a wise and just testator would have considered that: the estate was worth about $265,000; Ms Delmaczynski had made no real financial or other contribution to building up the estate; the beneficiaries had made no contribution to building up the estate; the estate was almost entirely as a result of the financial contribution by Ms Cope’s mother; Ms Cope’s mother had left nothing to Ms Cope despite Ms Cope’s love and significant physical support; Ms Delmaczynski had been married to the testator for a short time; their marriage was about four years inside a relationship of about six years and with no children of their relationship; Ms Cope and Mr Cope had a mortgage which they were likely to pay off by retirement but with no superannuation; two beneficiaries were married adults and the third was an unmarried adult with no dependant children and no beneficiary had been in contact with the testator for about 50 years; It would have been a reasonably predictable contingency that Ms Cope’s husband would be incapacitated by his disabilities and by now be receiving his disability support pension and that Wanda would have given up her family day care business to care for him.

[81] I find that the testator failed to make adequate provision for the proper maintenance and support of Ms Cope.

[82] As the first question was answered in the affirmative for each applicant, the Court then exercises a discretion to make such provision as it thinks fit. In doing so, it must take into account the relevant facts as they exist at the time of making the order.[84] One of those is that the net distributable value of the estate is likely to have been reduced to about $97,000 on the assumption that the proper order is that the parties’ legal costs be paid out of the estate on an indemnity basis. For reasons which follow, that is my finding.

[84] I must also consider the position of the beneficiaries under the will. They have no obligation to justify the provision the testator made for them. At least two of them, Jadwiga and Zbigniew, live in circumstances of some hardship, in Zbigniew’s case, quite severe hardship. Even what to us would amount to modest provision, would for them, on the evidence as to their cost of living in Poland, serve to alleviate their hardship. They had nothing to do with the testator in 50 years, but their evidence is to the effect that they and their mother were abandoned by the testator when they were small children. Bryson J said in Gorton v Parks,[85] the view held in former times that the moral obligation of a parent can be limited or escaped by steadfastly maintained repudiation or evasion of those obligations by the parent is “a view of the moral obligations of a parent which differs I would think from the almost universal view of the Australian community. His Honour regarded the bare fact of paternity “as of very great importance in morality”, and said:

The idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations or of the child appears to me to be an idea from a distant age. There have been large changes over long periods in the beliefs of the community about moral duty to children, and there seems in the distant past to have been some acceptance of a view that unless children were legitimate or were acknowledged by their father, he had no duty towards them... The idea that acknowledgment by a parent of a child or full accordance of status by a parent might increase the responsibilities of a parent or be significant to moral duty towards the child, with the contrary implications, seems a very strange idea and it is curious to find it, even in a limited way, in a judgment published as recently as 1962.

[85] Among the three beneficiaries there is genuine need. Wanda has a moral claim to most of the estate, regardless of the fact that her identifiable financial needs are for “a little of the cheese or jam that a wise and just [testator] would appreciate should be provided if circumstances permit”. The testator’s widow has a moral and needs-based claim. In an estate as small as this one, as Ipp JA said in Bladwell v Davis:[86]

... it is not possible to meet all the claims on the testator’s bounty which have been shown to exist. Determination whether there is power to make an order under [the Succession Act], and also what order should be made, requires the court to have regard to the assets available for distribution; and the assets available are not sufficient to satisfy all proved needs and claims on the testator’s bounty. There can be no truly satisfactory outcome for this litigation. No-one with a claim on the testator’s estate could receive adequate provision in relation to that person’s needs except at the expense of making less than adequate provision available for some other such person.

[86] Ms Delmaczynski’s obvious need is for a fund to act as buffer against unforeseen circumstances and substitute accommodation, as it is inevitable that the Perryman Court property will be sold. The size of the estate is such that, even if I were to award her the entire estate, she would be unable to purchase alternative accommodation. It is likely that she will have to rent, and such evidence as there is about her income and expenses suggests that she will have difficulty doing so without provision. Her situation is marginally worse as a result of her generosity to her daughter in 2012 by assigning her not very valuable half interest in a flat in Poland to her daughter. However, the evidence suggests that she divested herself of an asset worth only AU$20,000.

[87] On these facts, an absolute gift of the residue to Ms Delmaczynski is the order most appropriate, after payment of costs of the Public Trustee and of Ms Cope. The estate is too small to also meet the needs of the beneficiaries or to otherwise satisfy the need of Ms Cope.

[88] Ms Cope’s application was reasonably made considering that her mother had provided the estate and the three beneficiaries are adults who had not seen the testator for fifty years. When Ms Delmaczynski became an applicant, the merits became more complex but Ms Cope’s persistence with her claim for some provision was reasonable. Only as the legal costs devoured two thirds of the estate with the prospect of taking even more did Ms Cope’s and the beneficiaries’ prospects diminish to nothing. To order that Ms Cope receive anything less than her costs on an indemnity basis would be undesirable as it would substantially reduce her security in her retirement and ignore that her claim was reasonably made. On balance I regard it as appropriate that the parties’ costs on an indemnity basis be assessed and paid out of the estate. I reject the submission of Ms Delmaczynski that Ms Cope pay her own costs.

[1] Pursuant to Originating Application filed 15 October 2010 in SC 11262/10 remitted to the District Court of Queensland at Brisbane by order of 11 April 2013 of McMurdo J

[13] Ms Brewer advised the court of the reduced figure when it became apparent the trial would finish in one day.

[44] Delmaczynski affidavit, paras 22, 27-28; Second Delmaczynski affidavit, paras 36-43.

[58] Delmaczynski affidavit, paras 7, 35, 38; Second Delmaczynski affidavit, paras 17, 55.

[82] Coates v National Trustees Executors and Agency Co Ltd (1956) 85 CLR 494 at 507.

Queensland District Court Decisions

Cope v The Public Trustee of Queensland (as Administrator of the Estate of Zdzislaw Delmaczynski) Deceased [2013] QDC 176 (5 August 2013)