Madjeric v Madjeric [2025] QDC 126

• [6] In the course of giving these reasons, the family members shall be referred to by their Christian names for ease of reference.

• [7] Section 41(1) of the Act gives the Court power to order provision for a spouse, child or dependant of a deceased in certain circumstances. It provides as follows:

"Estate of deceased person liable for maintenance

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."

• [8] It is not in dispute that under these provisions, a family provision application is to be determined having regard to the well-established two-stage process adopted by the High Court in Singer v Berghouse.[1]
• [9] The first stage, described as the "jurisdictional question", calls for a determination of whether the applicant has been left without adequate provision for his proper maintenance, education and advancement in life. That involves a question of objective fact, albeit that value judgments are necessarily involved.
• [10] It requires an assessment of whether the provision made (if any) was inadequate for what, in all the circumstances, was the proper level of maintenance appropriate for the applicant, having regard to, amongst other things:

(c) the totality of the relationship between the applicant and the testator; and

(d) the relationship between the testator and others who have a legitimate claim on the estate.[2]

• [11] The question is to be decided as at the date of death of the testator with the notional "wise and just testator" bringing into account all relevant facts and those that are within "the range of reasonable foresight".[3]
• [12] The second stage of the enquiry, which only arises if determination of the first stage is made in the applicant's favour, requires a determination of what provision ought to be made out of the testator's estate for the applicant. It involves an exercise of discretion and regard must be had to the circumstances of each at the time of the trial.
• [13] Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales[4] said:

"All authorities agree that it was never meant that the court should re-write the will of a testator. Nor was it ever intended that freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the court. An observer of the course of development in the administration in Australia of such statutory provisions might be tempted to think that, unchecked, that is likely to become the practical result."[5]

• [14] The fact a will may appear morally unjust is not sufficient to compel the court to interfere with the disposition of the property. The power given by s 41 of the Act does not entitle the court to rewrite the will in accordance with its own ideas of fairness or justice. A court may only interfere with the dispositions in a will to the extent necessary to make adequate provision for an applicant's proper maintenance, education, and advancement in life.
• [15] The purpose of the legislative provisions relating to family provision applications is to "provide maintenance, not legacies". As such, the court's role is not to reward, or to correct the sense of wrong felt by the applicant.
• [16] The assessment of what provision a wise and just testator would have thought was their moral duty to make in the interests of an applicant is to be undertaken with due regard to the freedom of testamentary disposition.
• [17] As such, a testator is often better placed than the court to make a just assessment of all claims upon their estate, thereby providing "a very sound reason for the court to be slow to depart from the testator's wishes."
• [18] The applicant bears the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.

• [19] The testator grew up in Croatia and fled to Italy when she was 16 before migrating to Australia in 1949 with her first son, Lou, who was born in 1946. His father did not immigrate with them. In 1950 she married Luka Madjeric, and in 1955, gave birth to her second son, Eric.
• [20] Lou moved out of the family home in Wodonga when he was 20. He joined the public service and moved to the Australian Capital Territory and subsequently to Brisbane, Queensland.
• [21] Eric left school in grade 10 to support his now-wife, Debra Madjeric, who was pregnant with their first child. Eric moved to Albury for work where he lived in a share house. Their daughter was born in 1972 and for much of that year, Debra and the child lived with the testator in the family home. In 1973 Eric enlisted in the Australian Army. He spent 20 years in the army and was stationed at various units around Australia, with his first posting being in his home town of Wodonga.
• [22] In his first year in the army, and while in service, Eric was involved in a head on car collision and sustained serious back injuries.
• [23] In 1976, the testator separated from Luka. Luka died in 2001.
• [24] In 1977, the testator moved from Wodonga to Brisbane to be closer to Lou and his family. The testator lived with Lou and his family until she could establish herself in Brisbane. The testator remarried in 1980 and in 1982 she and her husband, Renzo Cia, purchased a property in Teneriffe where they lived for approximately 30 years.
• [25] In 1981, Lou graduated from the University of Queensland. That same year, he resigned from the public service to work in the private sector and also separated from his first wife. Over the next six years he worked at various locations in Australia and ultimately in 1987 accepted a short-term contract in Papua New Guinea (PNG). It was there he met Kathleen, whom he married in 1990. As a wedding present, on Lou's evidence, Lou had convinced the testator and Renzo to purchase a block of flats at Gaythorne with them as tenants in common. The purchase was completed in December 1990. Lou and Kathleen's share was purchased through a company, Madjeric Holdings Pty Ltd, the directors and shareholders of which were Lou and Kathleen.
• [26] Lou's evidence was that they contributed $57,000 towards the deposit and the testator and Renzo contributed $55,000.
• [27] Lou and Kathleen remained in PNG until 1993 when they returned to Brisbane, purchasing a property in McDowall and a toy wholesale business. They were losing money in the business and after five years they sold what they could of the business and were also forced to sell their McDowall home to pay their creditors.
• [28] In December 1997, while Lou still had the toy business, Eric and his family relocated to Brisbane from Albury, living with the testator and Renzo for the first six months. In his affidavit, Eric said he had moved to Brisbane to work in the business with Lou but that did not eventuate. In cross-examination, Eric was questioned about that evidence and it was put to him that the move was in fact associated with his wife obtaining a transfer with her work. He was shown an article which appeared in a club newsletter made at or about the time of the move. Eric accepted the statements made in the article and said he did not think about that at the time of making his affidavit and added, that the main reason they moved to Brisbane was because Lou offered him a job. He did not accept as was put to him that he was trying to paint Lou in a bad light.
• [29] Lou denied that he ever offered Eric a job but said he had hoped that that the business would one day be successful enough to be able to employ Eric as a salesman.
• [30] In 1998, Lou and Kathleen moved to the United Kingdom (UK) to care for Kathleen's ailing father. They remained working in the UK for the next seven years, ultimately purchasing a property in London. In 1999, the couple also purchased a property in Caboolture. In 2007, Lou and Kathleen returned to Australia to live in the Caboolture property but still kept the property in the UK.
• [31] One year later, in 2008, Renzo (the testator's second husband) died. After his death, the Gaythorne flats became jointly owned by the testator and Madjeric Holdings Pty Ltd, as tenants in common in equal shares.
• [32] While Renzo was alive, it seems that he was responsible for attending to the maintenance issues at the flats and the testator managed the finances. In the periods that Lou and Kathleen were living overseas, it would seem that Renzo and the testator took full responsibility for the care and maintenance of the flats. There was a joint bank account into which the rent from the flats was deposited and any associated expenses paid. Lou's evidence was that his mother managed that account; though he said that from 2018 onwards he started to keep track of that account. He further stated that from 2019 each of them received an annual distribution from the flats joint account.
• [33] Following the passing of Renzo, Eric and Lou remained in regular contact with the testator and each appeared to visit the testator regularly.
• [34] Both Eric and Lou ceased working in 2012 with Eric being declared medically unfit and eligible to a Department of Veteran's Affairs pension (DVA pension) and Lou being forced into retirement and unable to find alternate employment.
• [35] In his affidavit, Lou deposes to the difficulties experienced while he was looking for work, to watching his savings over the ensuing period dwindle and to him transferring money from the flats joint account to pay off his credit card. In his affidavit, he stated that he always told his mother when he was making a transfer and why. He deposed to his mother seeming to initially understand but admitted to her becoming increasingly agitated over time and said that by early 2015 his mother was becoming distrustful of him.
• [36] He deposed to having told his mother before he left for the UK in 2015 that she could withdraw all she needed from the flats account, "as they had got through their difficult period." Lou did not detail what amount of money he had withdrawn during that period nor was he cross-examined at all in relation to those withdrawals.
• [37] In May 2013, the testator sold the Teneriffe property for $875,000 and moved to live with Lou and Kathleen at their Caboolture property; with the intention being to erect a demountable on the property. A demountable was erected on the property at a cost to the testator of $178,000. Lou covered the costs of the property's upkeep and utilities from the time the testator moved into the demountable until her death.
• [38] Out of the proceeds of sale of the Teneriffe property, the testator gave to each of her sons an amount of $70,000.
• [39] In early 2015, Lou and his wife returned to the UK for several months to refurbish and sell one of their London properties. The property was sold in October 2015. Lou's evidence was that the London property was sold for a good profit and since that time they have been transferring funds from their UK bank account to supplement their Australian income.
• [40] Meanwhile, in July 2015, Eric and his wife purchased a property in Wamuran. Christine Shipley, a neighbour of the testator, gave evidence that in 2015, while Lou was overseas, that Eric visited the testator at least three to four times a week, and on weekends. Mrs Shipley maintained that Eric was the only person that she saw visiting the testator in this period. Mrs Shipley moved away from the area in late December 2016 but maintained that she remained in contact with the testator.
• [41] In July 2018, Lou and Kathleen returned again to the UK, staying until December of that year. There is some dispute regarding the communication between Lou and the testator during this time. Eric's evidence is that there was no communication between them and that the testator became distressed by the lack of contact. In cross-examination, Eric gave evidence that he informed Lou of the testator's upset via email. He did not provide evidence of any such email. Lou's evidence was that he sent Eric some 17 emails between July and November 2018, which included contact details for both he and his wife, with the expectation that Eric would pass this information onto the testator. Lou asserts that at no point did Eric mention the testator's distress.
• [42] On Lou's return to Australia, the testator and Lou's relationship deteriorated with the testator making accusations of Lou stealing from her. Under cross-examination, Lou described the relationship as having "cooled". The testator continued to live in the demountable on Lou's property but they rarely spoke for nearly two years. Both the testator and Lou engaged solicitors in relation to the dispute and exchanged correspondence making demands of each other, including Lou making a demand for the testator to vacate the property, with all her personal items to be removed and the remote to permit access to the property to be returned.
• [43] Lou's evidence was that they reconciled in late 2021. In his affidavit, Lou stated:

"I lament the years of disharmony between my mother and me... I welcome my mother's acknowledgement that I am not dishonest and celebrate our full reconciliation. I am saddened that our reconciliation was necessary and came at the expense of her documented loss of trust in her younger son Eric."

• [44] During the period of Lou and the testator's estrangement, Eric attended to the testator's various needs.
• [45] In November 2019, the financial circumstances of Eric and Debra deteriorated. Eric describes his financial circumstances as having become "dire". They had invested all their superannuation and savings and taken out an additional loan secured against their house for the purpose of investing in the business of their youngest son, Adrian Madjeric. Altogether, Eric and Debra contributed an amount of $350,000 or more. The business failed and Eric said he and his wife were about to lose their home. He said he discussed with his mother a loan of $300,000 with interest to be payable above the current rate she was getting at Suncorp.
• [46] On 21 November 2019, the deceased loaned $300,000 to Eric and his wife. The terms of the loan were documented in an agreement prepared by the testator's solicitor, Noel Barbi. The purpose of the transfer was said to be "a loan to offset interest charges on our mortgage." The current Suncorp rate was said to be 1.6% and the agreement provided that they would make a yearly repayment of 2% or $6,000 on 20 November each year or part thereof until fully paid back.
• [47] On 6 May 2020, the testator signed a deed of gift converting the loan to a gift. That document was prepared by Noel Barbi and signed at his offices.
• [48] Eric was cross-examined at some length about his failing to use the money to pay off his mortgage with it being suggested that he had misrepresented to the testator his real financial situation and that in fact he was not about to lose his home and that he did not use the monies, as it was said that he had indicated to the testator he would, "to draw down on the mortgage". However, consistent with the loan agreement, the monies were paid into the offset account; so it is difficult to see that much can be made of the cross-examination on that issue. Eric did accept, however, that if he had repaid his home loan with the $300,000 from his mother he would have "quite possibly" now had no home loan.
• [49] It was not suggested that the testator was not made aware of the circumstances giving rise to Eric's request for a loan; namely that Eric and Debra had made a large investment into the failed business venture of their son, Adrian.
• [50] During the period of estrangement of Lou and the testator, the testator made numerous changes to her wills and removed Lou as one of her powers of attorney; as is discussed below.
• [51] In late 2021, at or about the time of the reconciliation between the testator and Lou, another dispute arose. This dispute was between Lou and Eric but certainly involved the testator.
• [52] In giving evidence, Lou referred to meetings with Noel Barbi at or about this time which Lou said were about "Mum's request for Eric to explain himself." It is clear there was a meeting on 19 November 2021 which was attended by both Lou and the testator. Following that meeting, Mr Barbi sent an email to Eric on that date asking questions in relation to certain withdrawals from the testator's bank account. The email from Mr Barbi referred to instructions received from the testator in relation to two matters; an unregistered power of attorney dated 10 May 2019 and a number of withdrawals from the testator's bank account. The email of 19 November 2021 confirmed the revocation of the power of attorney to Eric and sought explanations in relation to certain withdrawals from the testator's bank account. It was said the testator could not provide explanations for the withdrawals and stated:

"You would be well aware that your mother's funds cannot be used for your own personal purposes. Your mother will require a full accounting and repayment of any funds that have been removed for purposes other than for her benefit."

• [53] An email exchange ensued between Mr Barbi and Eric. The email exchange is annexed to the affidavit of Lou sworn 1 March 2024.
• [54] Curiously, unlike other attendances by the testator at the offices of Mr Barbi, there does not appear to have been a memorandum prepared by Mr Barbi of the testator's attendance at his offices on 19 November 2021, or certainly there was no such memorandum tendered in evidence.
• [55] In cross-examination, Lou referred to the meeting at Mr Barbi's office on 19 November 2021 and accepted that it was following that meeting that he refused to allow his brother ever to come on to his Caboolture property. Lou admitted in cross- examination that he had "found some things" and that resulted in him taking his mother to Mr Barbi. Lou described the meetings at or about that time with Mr Barbi being about "Mum's request to Eric to explain himself."
• [56] The response from Eric to the emails from Mr Barbi makes it clear there was a dispute regarding the withdrawal by Eric of certain funds from his mother's account while he was the sole attorney pursuant to the power of attorney dated 10 May 2019.
• [57] It is accepted that during this period Eric and Lou were not on talking terms. In cross-examination of Eric, counsel for Lou described it as Eric and Lou hating each other. Eric responded that they did not hate each other up until 19 November [2021].
• [58] On this issue, Eric agrees that it was the testator who told him that he was not allowed on the property. He said it was for that reason that he did not go there. He said he did not make arrangements to meet his mother anywhere else because his mother did not want to. He said his mother was also having difficulty walking at that stage.
• [59] Eric's evidence was that during this period he made regular phone calls to his mother, except he says there was a period of about four to six weeks where he was unable to get his mother on her phone. Lou admitted to there being modem problems in that period. Eric said that during this period the only times he visited his mother was while Lou was away and his mother was placed in respite care.
• [60] During cross-examination, when Lou was asked why he restricted Eric and Eric's children, the testator's grandchildren, from visiting the testator even after she had been admitted to palliative care, Lou responded, "it wasn't that I particularly didn't want them to be there, I just didn't trust them to be there." Lou accepted the grandchildren weren't going to harm her and agreed it probably was financially related. He explained that he was concerned Eric could have been given decision-making powers over the testator's financial affairs and health care and feared the possibility of Eric removing him as power of attorney. He added, "I was more concerned about what he might do over her control of her end of life experience." He was then asked, "you thought your brother might do something untoward to your mother?" to which Lou responded, "I thought he might do something that I didn't want him to do." He added, "I didn't trust him is the point." He accepted that extended to the point where he was prepared to prohibit Eric's children from seeing their grandmother before she passed away.
• [61] In his affidavit evidence, Lou had suggested that he would have been prepared to walk his mother to the gate in order for her to see Eric. It is difficult to accept the truthfulness of that statement in view of his answers in cross-examination as to the degree of his mistrust of his brother.

• [62] There is no dispute that between 2013 and 2020, the testator gifted $405,000 to Eric:

(a) $70,000 from the sale proceeds of the testator's Teneriffe property in 2013;

(b) $35,900 on 2 August 2018 towards the purchase of a new car; and

(c) $300,000 on 6 May 2020 following forgiveness of a loan which had been prompted by the difficult financial circumstances of Eric and his wife arising out of the failure of their son's business.

• [63] In his affidavit, Lou described some of those payments and others as being loans repayable to the estate. At the commencement of the trial, counsel for Lou stated that it was not suggested that these amounts need to be repaid to the estate but rather it was suggested that they were financial assistance given by the testator to Eric during her lifetime.
• [64] Included in the financial assistance were payments of $5,000 and $3,000 said to have been made to Eric on 6 June 2019 and 12 September 2019, respectively. Eric says that he cannot recall what the payments were for, and through his counsel puts in issue whether the payments should necessarily be described as gifts. There are, however, cheque butts for those payments with the name of the recipient as Eric. In his affidavit, Eric referred to an email to NR Barbi Solicitors dated 14 March 2022 which was part of a series of correspondence concerning withdrawals made from his mother's account. In that email, whilst Eric stated he could not recall the payments, he admitted, "they may have been to help out with our finances." The evidence supports a conclusion of those payments having been gifts.
• [65] In making his closing submissions, through his counsel, Eric submits that only a nominal value of say $7,500 should be attributed to the gift of $35,900 paid for the car on the basis that the testator also benefitted from the purchase of the car because it was used to transport the testator shopping, collect medications, take her to medical appointments and anywhere else she liked.
• [66] Eric therefore says that the quantum of gifts he received is $377,500, not the sum of $413,900 contended for by Lou.
• [67] Apart from these payments, the testator also paid $30,000 to Eric's son (Adrian) and his business partner on 3 November 2017, though Eric says this was a loan, not a gift. Eric says this was a matter between Adrian and his mother and says that his mother had always been fond of Adrian.
• [68] Even leaving aside the contentious matters, there is accordingly some merit in the statement of the testator that Eric had already received a share of the estate.
• [69] This is particularly striking when regard is had to the value of the assets at or about the time of the testator's death. Although Eric puts the value of each of the assets at the time of death at a higher amount, Lou says the total assets at that time were $924,465 and consisted of the following:

(a) 50% of the Gaythorne flats - $700,000;

(b) Suncorp Bank Account - Account No 071109901 - $228.96;

(c) Suncorp Bank Account - Account No 040708895 - $198,151.57;

(d) furniture and chattels $5,000;

(e) demountable home $20,000;

(f) jewellery and watches $600; and

(g) cash $485.40.

• [70] On the other hand, the statement of the testator is predicated upon the accusation that Eric, whilst her sole attorney, requested and accepted funds from her and removed funds from her bank accounts for his personal use from 2014 to 2021 contrary to Queensland Public Guardian guidelines. The testator expressed her intention not to take legal action against Eric, and also stated that this reluctance should not be taken as approval of his actions or to restrain the executor of her will from doing so.
• [71] Not only does Eric deny taking funds from the testator in this way, but it is clear that there were a number of times when the testator accused her sons and their wives and others (such as her cleaners and a friend) of stealing from her; all without proper foundation.
• [72] In addition, it was contended by Eric that Lou had also received funds from the testator. There was no dispute that the testator also gave Lou $70,000 in 2013 arising from the sale of her property at Teneriffe.
• [73] Lou also admits receiving $50,000 in 2022 for the purchase of a new vehicle. Lou says that the vehicle was a gift as his existing vehicle was too small to carry two wheelchairs, being one for the testator and another for his wife.
• [74] The testator also paid for the construction of the granny flat on Lou's property. Lou says that this was to enable the testator to live on his property, rather than be placed in a nursing home. He says that it enabled him to organise her day to day matters and that he paid for the utility costs while she lived there.
• [75] Although an amount of $20,000 was included in the calculation of the total assets of the estate, in his affidavits, Lou deposed that there is no admission that the demountable home is an asset of the estate and stated, "given it is fixed to the land and there is no intention it ever be moved."
• [76] Annexed to Lou's affidavit is an email from David Wright House Removers dated 9 September 2019 indicating the demountable had a value of between $17,000 and $25,000. In a letter from NR Barbi as the solicitors for Lou to the solicitors for Eric dated 26 April 2023, Mr Barbi referred to the demountable as having a value of $20,000.
• [77] In the submissions on behalf of Lou, no value is attributable to the demountable. Given the email from David Wright and the terms of the will, it is appropriate to include the demountable as an asset of the estate and to give it a value of $20,000.
• [78] Eric says that Lou used the proceeds from the sale of the motor vehicle owned by Renzo, the testator's husband, without her approval. In his affidavit, Lou deposes that he cannot recall the amount nor where the proceeds from the sale of the car were paid. Lou was not cross-examined on this issue.

• [79] Up until 2019, the testator's estate under her will made on 14 July 2008 was split evenly between Eric and Lou and both sons were appointed executors.
• [80] On 10 May 2019, the testator made a new Enduring Power of Attorney where she appointed Eric as her sole attorney in lieu of her previous Enduring Power of Attorney which had given both her sons power of attorney. The Enduring Power of Attorney dated 10 May 2019 was not prepared by Mr Barbi and was not registered. In his affidavit, Eric says that he obtained an EPOA form online and an advanced health directive. He says this was obtained at the request of his mother. He says she had wanted to remove Lou because of the issues around the flats joint account. Eric was not cross-examined as to the circumstances surrounding the making of the new power.
• [81] Soon after, on 9 July 2019 the testator executed a second will which bequeathed the whole of the testator's estate to Eric and appointed Eric as the sole executor. That will was executed at the offices of NR Barbi Solicitor.
• [82] The testator executed a third will on 31 July 2019. Eric remained the sole executor. The will continued to bequeath all her interest in the Gaythorne flats to Eric together with the household contents, furniture and personal effects and jewellery contained in the granny flat, but with the granny flat to go to Lou. The will made provision for certain items to go to Debra, as the wife of Eric, if Eric failed to survive her.
• [83] During the period between June and December 2019 there is correspondence passing between Mr Barbi and Eric and Mr Barbi is writing to Lou or the solicitors for Lou, on behalf of Eric and the testator. The letters make clear that there was a dispute between the testator and Lou, including the testator's right to continue living in the demountable on Lou's land, the testator's legal capacity and access to the flats joint account.
• [84] On 6 May 2020, the testator made a fourth will, which was in substantially the same terms as the previous will, save that the jewellery was now bequeathed to her granddaughter, Eric's daughter, and one half of the balance of any moneys in any bank account to her grandson, Lou's son, and her great grand-son, the grand-child of Lou. Eric was to receive the remainder of the residual estate.
• [85] In a file memorandum made by Mr Barbi of the testator's attendance that day he referred to the change to make specific bequests for Andrew and Karl and recorded that "they have shown affection for her and been closer to her in her dotage." It also recorded that the testator had made a loan of $300,000 to her son Eric late last year and she now wished to gift that money to Eric and his wife.
• [86] On 3 February 2021, the testator executed a further will, providing that her interest in the Gaythorne flats was to be distributed to Eric and Lou in equal shares. Eric remained the sole executor and was to receive the household contents, furniture and personal effects contained in the demountable but with all her jewellery to be given to Lou's first wife. No change was made to the distribution of the residual estate from her last will.
• [87] The file memorandum prepared by Mr Barbi of this attendance recorded:

"She wants to change aspects of her Will made on 6 May 2020 because she no longer has faith in certain parties that she nominated and also because she has already assisted her son Eric in relation to loans and gifts referred to in a Deed of Gift dated the same date in the sum of $300,000."

• [88] The testator then subsequently made a new Enduring Power of Attorney on 19 November 2021 appointing Lou as her sole attorney, and shortly thereafter, two new wills dated 20 December 2021 and 19 January 2022 each of which, as mentioned previously, bequeathed the real property and goods of the estate to Lou, save that the jewellery was bequeathed to her daughter in law, Kathleen, and the residuary estate to grandchildren, being the children of Lou, and her great-grandson, the grandchild of Lou.
• [89] It was during the attendance at Mr Barbi on 19 November 2021 that the issues were raised concerning certain withdrawals from the testator's account while Eric was the sole executor. The email correspondence which ensued is discussed above.
• [90] It was during the period of the exchange between Mr Barbi and Eric regarding these withdrawals that the testator on 8 February 2022 made a Statutory Declaration stating that she considered that Eric "has already received more than his fair share from my estate, and is therefore entitled to nothing more as his inheritance." As previously mentioned, the declaration included a statement made by the testator that, "My son, Zdrako Eric Madjeric (Eric), while acting as my Attorney, requested and accepted funds from me, and removed funds from my bank accounts for his own personal use from 2014 to 2021, contrary to Queensland Public Guardian guidelines."
• [91] In his affidavit sworn 22 March 2024, Eric denied ever taking any funds from his mother without her knowledge and consent. In referring to the statutory declaration, he said that he had no understanding of how it mentions him taking funds from his mother during her lifetime and did not believe his mother would have willingly made those statements being of a sound mind.
• [92] Lou maintained that his mother had capacity at all relevant times and no challenge in these proceedings was made to the legal status of the will made at the end of 2021 or the will made at the beginning of 2022 or to the declaration.
• [93] All wills were drafted by Noel Barbi.

• [94] There is a difference of opinion between the parties as to the current value of the estate.
• [95] In written submissions, Lou set out a table of what was said to be the assets and liabilities of the estate. The figures in the table are consistent with the evidence, except that Lou says that the assets in the NR Barbi Trust Account are $10,000 higher than shown in the table and the reimbursement claimed by Lou for legal fees was $10,000 higher. Correcting for these matters (which make no difference to the end result), the submission is that the current assets and liabilities of the estate are as follows:

50% of the Gaythorne flats - midpoint of Lewis valuation and Opteon valuations

Reimbursement to Lou and Kathleen for legal fees paid by them personally to 22 January 2025

NR Barbi Solicitor's legal fees and outlays billed 23 January 2025

Estimate of NR Barbi Solicitor's legal fees and outlays to end of trial

Further estimate of legals fees (solicitor and counsel) costs argument following trial

Estimate of legal fees to complete administration of the estate

2025 tax payable (inc. capital gains tax on sale of Gaythorne flats - estimate)

Entitlement to Estate's interest in ANZ account #573507298

• [96] Both agree the estate is a modest one. In this application, Eric challenges a number of these items.
• [97] The first issue is the value of the Gaythorne flats. Eric submits that the value of the Gaythorne flats to the estate is $900,000. Eric relies upon a report by Mr Michael Holt of Opteon as at 2 December 2024. Mr Holt values the property at $1.8 million. He relies for this opinion upon a number of comparative sales in 2024. The valuation also includes an income capitalisation method that values the property at $1,786,909.
• [98] As against that report is the report by Philip Lewis of Lewis Valuations Australia Pty Ltd dated 16 May 2024. He values the property at $1,350,000; being midpoint in his range of $1,250,000 and $1,450,000. The basis of his valuation was a number of comparative sales in 2023, which he analyses, though he also advises that due to the low number of directly comparable sales and volatile sales prices in the location a written second expert opinion should be obtained. His report was stated to have been prepared for the estate for internal accounting purposes.
• [99] Neither report was addressed to the court and both contain the standard disclaimers and exclusions as to their use and reliability.
• [100] Lou has simply taken the mid-point of those valuations. Given that the parties have chosen to proceed without full submissions or cross-examination on the subject, that is not unreasonable for present purposes. However, given the dates of the comparative sales referred to in the reports and the specific qualification to the Lewis report already mentioned I am inclined to the view that the report obtained by Lou is a conservative assessment and that the true value is closer to the Opteon valuation; making the 50% interest in the flats at closer to an amount of $900,000.
• [101] Apart from the flats, it was submitted by Eric that the table of assets failed to take account of the estate's share of income for the financial years 2023, 2024 and 2025. In the submissions, reference is made to the amount of $37,708.33, being the amount included in the table as a liability. It is submitted it is that amount which should be allowed for the estate.
• [102] The assets and liabilities of the estate were calculated by an accountant, Ms Lisa Hayter, who has acted as the accountant for the testator since the 2019 tax year. By a combination of her three reports, Ms Hayter makes it clear that she has taken into account the rental income earned from the flats to December 2024. There was no cross-examination of the accountant in this respect. There is no reason not to accept that proper account has not been taken of this item.
• [103] As to the liabilities, Eric put in issue three items.
• [104] Firstly, it was submitted that the executor was not entitled to commission of $9,000 absent an order pursuant to s 68 of the Act or agreement of the parties. That submission was not challenged by the respondent. I accept that submission.
• [105] Secondly, there is the question of the capital gains tax (CGT). The figure stated in the table was calculated by Ms Hayter, who provided several expert reports for Lou. Ms Hayter says that if the Gaythorne flats were sold for the mid-way price of $1,575,000, the estate's share of the capital gain would be $314,149 and the tax payable by the estate would be approximately $118,855. Ms Hayter also said that if the flats were sold for $1,800,000, the capital gain would be $368,993 and the tax payable by the estate would be $143,535.
• [106] As stated in the submissions of Lou, it is agreed between the parties that in considering the liability of the estate for CGT, if the Gaythorne flats were not sold but transferred to Lou pursuant to the will, no CGT would be incurred by the estate. However, if Lou eventually disposes of the flats, he will pay tax on the total capital gain from the date the testator acquired the asset.
• [107] Lou accordingly contends that the value of the estimated CGT should be taken into account in assessing the value of the estate as a whole; on the basis that the contingent liability for CGT passes with the asset. In other words, it is an encumbrance upon the Gaythorne flats which affects their value.
• [108] Eric submits that given that Lou may never sell the flats, CGT should be treated as no more than a contingent liability and that the fairest approach is to include only 50% of the estimated CGT.
• [109] In the closing submissions of Lou, it is submitted that "the only instance that the Gaythorne flats will not be required to fund an order for provision, is if Eric's case is dismissed." That submission made by counsel is based on the cash that will remain in the estate once the liabilities are paid. The calculation includes liabilities in the amount of $46,708.83, which are in fact amounts owed to Lou. The calculation further ignores the fact that Lou has access to cash reserves of his own, which he could choose to use. In his affidavit evidence, Lou makes no reference as to his intentions and he was not asked any questions in cross-examination on this issue.
• [110] In those circumstances, I do not consider it is correct to act on the basis that if any provision is made the flats will be sold and hence subject to CGT. They obviously provide a good income stream for their owners. It is possible that the estate will have to pay CGT on the sale of the flats if an order was made favourably to Eric, but it is by no means obvious that this course would be adopted by Lou and its necessity would be dependent upon the ultimate discretionary decision. I am not convinced that I should treat the whole of the amount calculated for CGT as a liability of the estate. At most, the appropriate amount would be, as suggested by Eric, 50% of the estimated CGT.
• [111] Thirdly, as mentioned above, in the submission, Eric questioned the manner in which the income from the flats had been dealt with. In terms of liabilities, it was put in issue what was submitted as the "unknown entitlement to the estate's interest which is said to be $37,708.33_._" This was the amount which it was submitted should have been an asset of the estate, and therefore it was submitted "cancel each other out".
• [112] The difficulty with these submissions is that the assets and liabilities, as previously observed, were calculated by the accountant and she was not cross-examined on this point. Further, the basis upon which the accountant had approached her task is fully explained in the reply submissions for Lou.
• [113] Allowing for the adjustments as I have indicated, in particular accepting the higher value for the flats, treating the demountable as an asset of the estate, allowing for CGT by way of a contingency in an amount of 50% and excluding commission, gives the estate a net value in the vicinity of $870,000.

• [114] Eric is a retired man. He is 69 years old and is married to Debra Madjeric who is 68 years old. The couple share three adult children and six grandchildren. Their combined net assets are approximately $1,228,000. They reside in a six-bedroom, three-bathroom home which they purchased in July 2015 for $520,000. Eric and his wife are the sole occupants.
• [115] The property was valued as at 28 November 2024 by Opteon at $1,130,000 and as at 22 May 2024 by Lewis valuations at $1,050,000. Again neither report was addressed to the court and both contain the standard disclaimers and exclusions as to their use and reliability. There is only a small difference between them, however.
• [116] As at January 2025, the mortgage on the home was $139,300.
• [117] As previously mentioned, Eric enlisted in the Australian Army on 31 January 1973. He was seriously injured in a head-on motor vehicle collision shortly afterwards. He was able to continue working with the Australian Army and in fact spent 20 years there. He took up various sales positions after he retired from the Army but has been unfit for work since 2012.
• [118] Eric has had nine spinal surgeries as a result of the collision; the most recent one being in October 2023. He takes pain medications, receives regular physiotherapy and has medically prescribed cannabis oil. His wife assists him with personal grooming and has received a carer's pension since 2018. He says he needs to avoid or be cautious about how and when he does gardening, lawn mowing, pruning trees or playing with or exercising their dogs.
• [119] Eric receives a DVA Disability Pension. As at the date of affirming his first affidavit on 1 December 2023, Eric deposes to receiving yearly payments of $63,156 by way of DVA Disability Aged Pension and $18,840 described as superannuation. At that time, his wife was receiving yearly payments of $16,464 by way of a carer's pension and carer's allowance. The payments were subject to annual increases. As at the date of hearing, the net yearly income between the couple is $103,848 per year.
• [120] Eric and his wife own two cars and one motorbike between them. One car, written off due to hail damage, remains registered but unused; a $6,000 insurance payout was received approximately two years ago.
• [121] Eric says he and his wife have approximately $85,994.00 in yearly expenses. Included amongst the expenses is $9,6000 per year on fuel. When questioned about the level of those expenses in cross-examination, it became clear that Eric is reimbursed for a significant proportion of those expenses. He is entitled to be reimbursed for fuel expenses by DVA for his attendance at any medical appointments, which appointments are generally in the city and the Redcliffe area, several times a week. Eric also receives reimbursement from his son's company to cover his fuel expenses when he does work for the company of picking things up.
• [122] As a result of his DVA Pension, Eric does not have any out-of-pocket medical fees.
• [123] Eric and his wife have continued to provide financial support to their adult children, including a significant investment in their youngest son's businesses. As already mentioned, Eric and his wife contributed "probably $350,000 or more" to the business of their youngest son, Adrian. The failure of that business meant that none of those monies will ever be repaid. In 2019 and 2020, Adrian became involved in a new business. Eric's evidence was that he has not invested anything in the new business other than his time. He confirmed that he does the accounts for the new business but is not paid for that work. He also confirmed that he provided $6,000 using his Mastercard account to repair a vehicle for the use of his son in the business but he said it was his expectation that it would be repaid and in fact some of it has been repaid. At the time of hearing, his son had paid an amount of $6,000 to his Mastercard.
• [124] Eric said he had loaned Adrian's companies other amounts using funds by drawing on his Westpac Flexi Loan account. He said the precise amounts advanced would be recorded in the accounts of the company. He said he hoped that the additional monies advanced would be paid back at some point. He said limited contributions have been made to date towards the Flexi Loan due to the son's limited means. In cross-examination, Eric confirmed he was still investing in the businesses as recently as June 2024. In using that term, having regard to the other evidence given, it would seem that Eric simply meant giving money to his sons to be used in helping in the expenses of the businesses.
• [125] In his affidavit affirmed 1 December 2023, Eric refers to a Westpac Equity loan in an amount of $46,396. Eric's evidence is that the loan is secured against the home mortgage and was first taken out for the benefit of their son, Rick, to pay off debts. Eric confirmed that while he and his wife would be liable if Rick defaulted, Rick is currently repaying the loan at an amount of $500 per month.
• [126] As at the date of the hearing, the Mastercard debt was $10,308, the Flexi Loan debt was $37,494 and the Equity loan debt was $46,396; making a total of $94,198 in addition to the mortgage debt on the house, leaving total liabilities as $223,498.

• [127] Lou and his wife are both 78 years old and retired. Lou says their combined net assets are approximately $2,868,029; being $2,230,097 in Australia and $994,395.21 in the UK. The Australian assets are said to consist of their home at Caboolture, 50% of the property at Gaythorne, savings in two bank accounts (a total of $87,477), money in a retirement account ($61,308) and some shares ($136,065). They have a small credit card debt; giving an amount of available cash in Australia of $284,850.
• [128] In the UK, they have a flat in London valued in 2022 at $694,907.47 and savings in two bank accounts, totalling $272,657, with liabilities of $259,538 said to be moneys owing under an interest only investment loan.
• [129] The value attributed to their house at Caboolture is based on the mid-point of the valuations of that property, as is the 50% value attributed to the Gaythorne flats.
• [130] In respect of the Caboolture property, Lou exhibited a valuation report by Mr Lewis. He valued the property as at 22 May 2024 as $1,100,00. He relied upon comparative sales which occurred in 2023 and early 2024. The valuation obtained by Eric for the Caboolture property was done by Freeman Wang and Martin Green of Opteon as at 28 November 2024. They valued the property as $1,225,000. They relied upon comparative sales which occurred in 2024. Again, neither report was addressed to the court and both contain the standard disclaimers and exclusions as to their use and reliability. There is only a small difference between them, however.
• [131] The value to be attributed to the Gaythorne flats was considered above in dealing with the value of the Estate Assets.
• [132] By reference to the accounts prepared by Ms Hayter, in addition Lou and Kathleen received in the financial year ending 30 June 2024 an amount of $24,179.19 by way of their 50% share of the net rental income from their 50% share in the Gaythorne flats.
• [133] The joint income of Lou and his wife for the 2023 financial year was $77,377. Lou receives an amount of $153.20 per fortnight as the carer for his wife.
• [134] Kathleen suffers from chronic health issues, has limited mobility and lives with considerable pain. The couple have to pay for their medical expenses, including private health insurance.

• [135] The first question to be considered is whether "adequate provision" has been made for the "proper maintenance and support" of Eric. In accordance with Singer, I must have regard, amongst other things, to Eric's financial position, the size and nature of the testator's estate, the totality of the relationship between Eric and the testator and the relationship between the testator and other persons who have a legitimate claim upon her bounty.
• [136] The respondent argued that each of those matters weighed against, rather than in favour of, the applicant. The respondent submitted that as at the date of death of the testator:

(a) Eric and Debra owned their own home with a small home loan which could have been paid off when the testator gave them a gift of $300,000 in May 2020;

(b) Eric and Debra's income exceeded their expenses by at least $12,466 per annum with that figure likely to be significantly more with tax returns and fuel reimbursements;

(c) all of Eric's medical expenses are covered by DVA, removing all concerns about future cost of same;

(d) Eric had hardly seen his mother since 2021; and

(e) Eric had received substantial gifts from the testator prior to her death, including a gift of $300,000 in 2020.[6]

• [137] The respondent submits that Eric has failed to identify any current or unmet need and says that their assets and income support their lifestyle and needs with more than sufficient left over to continue investing in their sons' business(es) and assisting their adult children in other ways. The respondent submits that there is nothing in the evidence which suggests that Eric and Debra are forced to live a frugal life.
• [138] The respondent argued that Eric had failed in his obligation of "full and frank" disclosure. In support of that submission, reliance was placed on the evidence as to the expenditure on fuel and the reimbursements received, the extent of the further loans to his sons' businesses and the failure to disclose tax return amounts.
• [139] I do not consider any of these failures can be considered to impact Eric's candour; nor do I consider them to have a significant impact on the financial position of Eric and his wife.
• [140] In cross-examination, Eric was very clear in his evidence as to the continued support he and his wife give to their adult sons, including admitting to making payments to their own detriment. Those more recent payments cannot be said to be anywhere near the level of investment made in their youngest son's first business venture.
• [141] That continued support means that they continue to have unpaid debts and they do not have the available funds to clear those debts. They have the two equity loans against the house and a large MasterCard debt. Whilst the smaller equity loan is being paid off by one of their sons, it is a loan which remains in their names and for which they remain responsible.
• [142] The continued support by a parent of a child, even an adult child, is a relevant factor in assessing appropriate provision for maintenance or support. I do not accept the submission made by the respondent that the support of an applicant of his adult children can be regarded as falling in the class of persons referred to by Hallen J in Camernik v Reholc,[7] where his Honour said that family provision is not designed to provide support for third persons for whom the testator has no obligation.
• [143] The fact of the making of such payments cannot be considered disentitling conduct nor an indication, as was submitted, that the applicant has sufficient assets and income to support the lifestyle of he and his wife. As Gibbs J stated in Hughes v National Trustees Executors and Agency Co of Australasia Ltd:[8]

"There are no rigid rules: the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances..."

• [144] In Hughes, Gibbs J referred by way of example to the adult son who may be suffering from some physical or mental infirmity, he may have suffered financial disaster, he may be unable to obtain employment or he may have a number of dependants who rely on him for support.
• [145] Relevant to the considerations here, it was further submitted that the testator had come to the view that the substantial financial assistance she provided to Eric during her lifetime justified no further provision being made to Eric from the estate.
• [146] I consider the statutory declaration made by the testator must be viewed in light of other evidence that I do accept. I accept the evidence that it is apparent that the testator developed a paranoia and distrust of others and had accused many people of stealing, including Lou, and that those allegations were unsubstantiated.
• [147] Given that tendency, it is likely that she accepted what had been told to her by Lou regarding what Lou considered to be unauthorised withdrawals from his mother's bank account by Eric, when he was sole attorney, and which had been the subject of correspondence to Eric from Mr Barbi's offices. I consider the correspondence on that issue was driven by Lou and not his mother; albeit accepted by his mother and forming the basis for a belief that additional funds had been received by Eric in her lifetime.
• [148] That is relevant to my assessment as to what "the testator would have done if [s]he had known and properly appreciated all the circumstances of the case."[9]
• [149] In submissions, it was further said that there was a degree of estrangement between the testator and Eric between 1976 and 1979 and then for the last two years of the testator's life. The totality of the relationship of the applicant and others who have a claim on the bounty is clearly relevant; whilst recognising the mere fact of estrangement would not ordinarily result, on its own, in the child not being able to satisfy the jurisdictional requirement under the Act.[10]
• [150] In considering the totality of the relationship over Eric's lifetime, it is difficult to place any relevance to the estrangement for a relatively short period some 40 years ago. I also consider it is difficult to describe their relationship in the last two years of the testator's life as having a degree of estrangement. I accept Eric's evidence that he had been told by the testator that Lou would refuse to allow Eric to come on to the Caboolture property. As of 19 November 2021, Lou and Eric, at the instigation of Lou, were no longer on talking terms. I do not accept Lou's evidence that he would have walked the testator to the gate of the property in order for her to spend time with Eric. Given his evidence as to his total lack of trust in Eric, which extended to a total lack of trust in Eric's children to a point where he did not wish Eric's children to visit their dying grandmother, I do not accept that Lou would have permitted, or assisted in permitting, visits by the testator with Eric of which he was aware.
• [151] I accept Eric's evidence that he continued to have regular phone contact with his mother during the period and visited his mother when she was in respite care.
• [152] There is no dispute that Lou had a two year period of estrangement with the testator between 2018 and 2021 and that during that period it was Eric who attended to the testator's needs. Lou's conduct in that period became confrontational and involved the engagement of lawyers. He described their respective behaviours as that of two stubborn people.
• [153] This does give some insight into the preparation by the testator of her various wills and her willingness at various times to change her allegiances. That behaviour further sheds light on the weight that should be given to the statutory declaration.
• [154] In considering Eric's position, it is relevant that Eric suffers significant medical conditions and physical disabilities, recognising that his veteran's pension covers all of his medical expenses; including reimbursement for the travel costs to and from medical appointments. However, Eric's health condition is fragile and it requires the support of his wife, who since 2018 has received a carer's pension. Absent that assistance, Eric is likely to require the assistance of others.
• [155] The submissions made by counsel for Eric, which has merit, is that Eric's financial position might not contain a significant enough buffer against the contingencies of life. That position was apparent as at the date of death and it was reasonably foreseeable that Eric's need was likely to increase as Eric ages.
• [156] In all the circumstances, I am satisfied that the jurisdiction of the court is enlivened. Having regard to all of the circumstances, I am persuaded that the testator did not make adequate provision for the proper maintenance and support of Eric in her will.

• [157] As to what provision should be made, Lou is significantly better off in terms of assets than Eric, and he also has access to some $284,850 in cash in Australia and some $272,000 in cash in the UK. Lou and his wife are of course self-funded retirees. The evidence was that the income they lived off in the last 12 months was less than the income received by Eric and Debra but the amount of that income is their choice. Lou and Kathleen have access to cash reserves and unencumbered properties.
• [158] During the testator's lifetime, Lou did not receive from the testator gifts in the same amounts as Eric; though the significant difference would seem to be the payment to Eric of the amount of $300,000.
• [159] It is clear that both sons received gifts of cash from the testator. They each received the payment of the sum of $70,000 upon the sale of the testator's Teneriffe property. Further, there is evidence of Eric having received two additional sums of $5,000 and $3,000; albeit that Eric could not remember what these payments were for, though had referred in email correspondence that it "may have been to help us out with our finances". It is appropriately treated as a gift.
• [160] Lou admitted to having taken money from the flats joint account in the period between 2012 and 2015, while he was unemployed; though no details are provided as to the quantum involved. He was not cross-examined in relation to this evidence. It should be assumed it did not amount to sums of particular significance.
• [161] Eric and Lou both received money to purchase new cars.
• [162] I am inclined to the view that payment of a suitable sum of money to Eric would be the appropriate way to exercise my discretion to order appropriate provision. Having regard to the value of the estate, the types of sums paid by the testator in the past and to the indebtedness of Eric, in my opinion a suitable sum would be $250,000.
• [163] Accordingly, I grant the application and order that provision is to be made for the proper maintenance and support of the applicant from the estate of Bernadina Simona Cia, the deceased, in the sum of $250,000. The parties are to file proposed orders to reflect these orders and, in the absence of agreement, each party is to file proposed draft orders, by 11 September 2025.
• [164] The orders made will include orders for the making of submissions as to costs.

[3] Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 per Dixon CJ (Coates).

[4] [1962] HCA 19; (1962) 107 CLR 9 (Pontifical Society).

[6] The amount of $300,000 was initially paid by way of a loan in 2019 and the payment was converted to a gift by the testator in 2020.

[7] [2012] NSWSC 1537 [159].

[8] [1979] HCA 2; (1979) 143 CLR 134 (Hughes).

[10] Palmer v Dolman [2005] NSWCA 361 [110] per Ipp JA.