Stejskal v Hely & Ors

Matters to be considered by the Court

1. The facts were not in dispute. Accordingly, it is convenient to set out the Court's factual findings by reference to the matters which may be considered by the Court under s 60(2) of the Act, without suggesting that those matters are a complete or determinative list of the matters to which the Court may have regard in exercising its discretion as to the nature of any family provision order it may make.

The relationship between Tomas and Dr Stejskal (s 60(2)(a) of the Act)

1. Tomas' own undisputed affidavit evidence was: "My relationship with my father I would describe as a poor one in many respects, marked by a distance and aloofness on his part. For me, it was a sad and sorrowful relationship. My father was absent for significant periods of my life. He had moved to Australia without my mother and I, and we felt abandoned. My father was often dismissive of me and my efforts and life milestones. Sadly for me, it was not a close or emotional relationship, though for my whole life I had wanted it to be."
2. Tomas was born to Dr Stejskal and Bozena Stejskalova on 8 August 1958 in Brno in Czechoslovakia (as it then was). At the time of Tomas' birth Dr Stejskal was studying medicine full time and his mother was employed as a nurse. Shortly after his father graduated, Dr Stejskal left Tomas and his mother so that he could work in a small country town as a gynaecologist. He visited his family every three months or so for up to one week at a time.
3. While working away from his family Dr Stejskal formed a relationship with Bohuse Jarosova (known as Bohuna). She was a doctor and the wife of Dr Stejskal's best friend.
4. In 1968 Dr Stejskal left Czechoslovakia to live in Australia with Bohuna. He left Tomas and his mother behind in communist Czechoslovakia.
5. In 1971, when Tomas was 13 years old, his mother and Dr Stejskal divorced.
6. In 1974, Tomas' mother asked Dr Stejskal to take Tomas to Australia. Tomas' evidence was that his father replied, "Why would I take him? He is nothing. He is not qualified for anything."
7. Tomas left school at 15 and, after an apprenticeship, obtained a trade as a mechanical fitter. In 1977, at the age of 19, Tomas got into trouble with the communist authorities and spent four years in prison.
8. When Tomas came out of prison he mostly did labouring work. Tomas' mother became concerned that Tomas may become the object of reprisals and harassment by the communist authorities. Tomas' mother contacted Dr Stejskal and steps were taken for Tomas to emigrate to Australia.
9. The Czechoslovakian government allowed Tomas to come to Australia. Dr Stejskal was Tomas' guarantor. Tomas arrived in Australia on 30 August 1985 at the age of 27.
10. For the first 14 months of his time in Australia Tomas lived in his father's house while he (Tomas) learnt English and obtained work.
11. Tomas then struck out on his own and eventually moved to Queensland with his then de facto partner. Dr Stejskal did not approve of that relationship, which ended in 2000.
12. Tomas' own evidence was that between 1994 and his father's death in 2018, he had only seen his father on some five or six occasions. However, Tomas' evidence was that he spoke to his father over those years fortnightly and, after Bohuna's death in June 2017, "almost every week". Unfortunately, many of those conversations were, or at least became, unpleasant and argumentative.
13. Tomas agreed that, while he stayed in touch with his father, he still had bitterness towards his father because his father had abandoned him and his mother in Czechoslovakia. He gave an example of a conversation that had occurred more than once to this effect, "Dr Stejskal: You always choose the wrong girlfriend. Thank God you do not have a child because you would be a bad father. Tomas: At least I did not steal a woman from my best friend and have a child with some other woman and left the child there in another country."

The nature and extent of Dr Stejskal's estate (s 60(2)(c) of the Act)

1. As I have noted above, the parties agreed that, after allowing for the cost of these proceedings, the estate comprises cash of $1,759,335.48

Tomas' financial resources (including earning capacity) and financial needs both present and future (s 60(2)(d) of the Act)

1. Tomas' assets comprise: "Car valued at $4,000 "Sunchaser" boat valued at $10,000 Cash at bank $127.45 (as at 6 September 2019) Superannuation account balance of $54,396.51"
2. Tomas does not have any debts.
3. Since 2000, Tomas has shared a two bedroom apartment in Wooloowin in Queensland with Ms Judy Spotswood. Ms Spotswood is 66 years old. Tomas and Ms Spotswood were in a de facto relationship from 2000 to 2006. She then moved out of the apartment, but six months later moved back in as a flat mate. Tomas' unchallenged evidence, which I accept, was that he and Ms Spotswood keep their finances apart and live separate lives, with the exception of sharing the apartment and some of the living expenses.
4. Tomas currently receives Centrelink benefits (Newstart and rental assistance) of $1,540 per month. Tomas' monthly expenses are $1,821 per month, which includes his share of expenses such as rent. For example, Tomas pays half the rent, being $560 per month. His evidence was that he is using his savings to cover his monthly shortfall or, according to his affidavit evidence, "whilst I am working I may earn additional income."
5. Tomas' shortfall is $281 per month. However, Tomas accepted that he spends approximately $200 per month on cigarettes. His evidence was that he is in the process of giving up smoking. If he is successful that will substantially reduce any shortfall.
6. Tomas does not have any children or other dependents.
7. Tomas' affidavit evidence as to his needs was: "3. I presently rent where I live. I need a home of my own to provide me with security and to call my own. A three (3) bedroom house Bribie Island, Queensland, would give me space to live comfortably, to house my musical instruments, my books and gives me the space to have friends and guests stay at my house. 4. I take great care in the presentation of where I live, and keep my current rented premises very clean and tidy. It is the way that I like to live. 5. l am a keen fisherman and being near the water and the social aspect of fishing has been a great source of joy to me. A house near the water will enable me to continue fishing and boating, and be of benefit to me in terms of my health through the peace and tranquillity it will provide. 6. Neat, tidy and comfortable three-bedroom homes in the Bribie Island area are marketed in the $650,000.00 to $700,000.00 mark. 7. My car is fifteen years old, and I need to upgrade to a newer car that can pull a trailer for my boat. A four-wheel drive vehicle of 2016 vintage would cost approximately $50,000.00. 8. My boat is about twenty years old, and to buy a newer replacement so I can continue boating and fishing would cost approximately $60,000.00. 9. Having looked at various local stores, I estimate that it would cost approximately $30,000.00 to furnish a new place of residence. 10. Due to my ill health I can no longer be employed as I was previously. 11. In my earlier affidavit I had estimated my monthly expenses at $1,821.00. To make ends meet I would need a buffer of approximately $500.00 per week or $2,000.00 per month. I am told that statistically, I have a life expectancy of 22 years. 12. I would need a cash reserve of approximately $250,000.00. [Mr Brown accepted this was not in addition to the buffer referred to in the preceding paragraph.] I have very limited superannuation, as indicated in my earlier affidavit. 13. There are further contingencies that I need in relation to medication, visiting my GP and specialists, cardiologist, car registration, car and boat insurance, membership at the RACQ and marine air sea rescue where I offer my services as a volunteer, as well as medical insurance, the increasing cost of living, and so an additional buffer of say $50,000.00 would assist in that regard. 14. I require extensive dental work which has been quoted at $64,000.00. 15. I would also like to be able to go and visit my mother in the Czech Republic while she is alive. 16. I have not been on a proper holiday as I haven't been able to afford it. I have always wanted to go on a Caribbean Cruise. My enquiries lead me to believe that this would cost approximately $2,000.00 to $3,000.00 plus airfares."
8. In an updating affidavit Tomas also said: "I now have a back issue which has been troubling me. I have been advised by my regular GP... that I will require surgery in the near future. I am presently waiting on a report from my doctor outlining my present medical history. However, he has been on leave recently. If surgery is required I expect the costs of private hospital and surgeon's fees and appropriate rehab to be no less than $50,000."
9. The defendants did not contend that Tomas was in any kind of a relationship with Ms Spotswood such that her circumstances should be taken into account. However, I have accepted and taken into account Tomas' evidence that, as a result of discussions with Ms Spotswood, the nature of their relationship was that they would continue to look after each other unless and until one of them found a partner. Tomas' expectation was that it was very likely that, if he moved to accommodation which he owned, Ms Spotswood would move with him to continue their relationship as supportive friends and flat mates.

Tomas' health (s 60(2)(f) of the Act)

1. There were two reports in evidence from Tomas' treating general practitioner. The first of these states, and the Court finds: "Mr Stejskal suffers from a number of medical conditions. These include: • ischaemic heart disease requiring coronary artery bypass grafting in 2014 [Tomas accepted in cross-examination that he had recovered well from that procedure] • disorders of heart rhythm namely atrial fibrillation • some depression for which he has been treated with the anti-depressant Lexapro for most of the year 2018 • peripheral neuropathy diagnosed at the hospital • skin dermatitis and asthma … He would be regarded as an unwell individual with his health and his difficult financial circumstances impacting on his health and his enjoyment of life."
2. The second report deals with Tomas' current back pain. I reject Tomas' characterisation of his circumstances in that regard as set out in paragraph [34] above and prefer his doctor's evidence, which was that Tomas appears to have a problem in the nature of spondylolisthesis, including osteoarthritis, as to which the doctor reported: "It is possible that a person with these problems may require surgery. At this stage I am unable to advise that referral to a surgeon for consideration of surgery is essential. The back condition requires further assessment - and an orthopaedic surgeon may well be considered in this process. The standard management of back pain involves physiotherapy and conservative therapy - a considerable percentage of patients improving spontaneously. I am unable to comment on Tomas' prognosis at this time."
3. Finally, the evidence included a report from a dentist who had examined Tomas. That report included: "He is requiring full lower clearance of remaining teeth. He also requires implant support bridges for upper and lower dentition. He would require 6 implants on the upper teeth and 4 implants on the lower teeth. They would provide him with a stable occlusion to function and chew. The total cost of treatment is $62,000."

Tomas' age (s 60(2)(g) of the Act)

1. Tomas is 61. There was no dispute that Tomas has a life expectancy of a further 22 years.

Any provision made for Tomas by Dr Stejskal (s 60(2)(i) of the Act)

1. Tomas has received his legacy of $50,000 under the Will. During Dr Stejskal's lifetime he provided these benefits to Tomas: 1. Dr Stejskal was guarantor of Tomas' immigration to Australia and provided him with accommodation for some 14 months. 2. He gave Tomas $750 to assist with his moving costs when Tomas' de facto relationship ended in 2000. 3. He gave Tomas $10,000 for Tomas' 60th birthday in 2018, together with an additional $3,000 for him to travel to the Czech Republic to see his mother, if he wished. Tomas told the Court he had decided not to go to visit his mother because of the cost of the journey.
2. Dr Stejskal also gave Tomas $2,400 to assist him with fines and legal fees but Tomas had repaid this amount.

Evidence of Dr Stejskal's testamentary intentions (s 60(2)(j) of the Act)

1. There was unchallenged evidence that Tomas had been told, both by Dr Stejskal himself and by his stepmother, that it was Dr Stejskal's intention that: "Whichever of Bohuna or I die first then she or I will leave everything to the other and, when the remaining one dies, it will be split between my family and her family 50:50."
2. Four wills of Dr Stejskal were in evidence. The two wills made during Bohuna's lifetime provided for her to take his estate but that, if she predeceased him, the residue after some small gifts was to be divided, as to one half, to Bohuna's family and, as to the other half, to Tomas after a payment of $50,000 to Dr Stejskal's sister in the Czech Republic.
3. The two wills made after Bohuna's death (including the Will) were in substantially the same form, each providing for a $50,000 legacy to Tomas with some small gifts to other persons and the residue to be divided equally between the Charities.
4. There was no dispute that Dr Stejskal had an attachment to the Charities, having himself been a patient at the St Vincent's Clinic and during his lifetime being a donor to the Royal Flying Doctor Service of Australia.

Whether any other person is liable to support Tomas (s 60(2)(l) of the Act)

1. No other person is liable to support Tomas.

Tomas' character and conduct (s 60(2)(m) of the Act)

1. Mr Bilinsky made it clear that he was not making any case of estrangement or disentitling conduct on behalf of the defendants. I accept Mr Brown's submission that Tomas is morally blameless for the poor and difficult relationship which he had with Dr Stejskal.

Tomas' submissions

1. Mr Brown made two fundamental submissions.
2. First, he submitted this was a case where the size of the estate was such that Dr Stejskal owed a moral duty to provide for Tomas as an adult son who, through no fault of his own was of limited means, with insufficient funds for accommodation and to meet necessary expenses and contingencies.
3. Second, he submitted this was a case where there was a policy interest, given the size of the estate, to make provision sufficient to free the public purse from supporting Tomas.
4. Both of these propositions were dealt with by Brereton J (as his Honour then was) in Taylor v Farrugia [2009] NSWSC 801 ("Taylor"): "57 These are claims by adult children. It is impossible in this area to describe in terms of universal application the moral obligation or community expectation of a parent in respect of an adult child. I think, however, it can be said that ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation [McGrath v Eves [2005] NSWSC 1006]. 58 Generally speaking, the community does not expect a parent to look after his or her children for the rest of their lives and into retirement, especially when there is someone else, such a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute. It is no longer the case, if it ever was, that an adult child has to establish a special need before obtaining provision from the estate of a deceased parent. 59 The Court's attitude to the eligibility for means tested pension benefits of eligible persons and beneficiaries varies, depending on the circumstances of the case. Ordinarily, a testator makes a will and provides for those who have a claim on the testator without regard to the claimant's eligibility for a pension. However, in a small estate where there are competing claims, a testator, and this Court on an application under the Act, may take into account the eligibility of a claimant for a pension as a means of deciding how such limited benefits as are available from the estate should be shared between claimants, and how those benefits might be structured. But this qualification to the principle that the burden of support should be borne in the first instance by an estate rather than by social security arises mainly, if not exclusively in smaller estates [Parker v Public Trustee (1988) NSWSC, Young J, 31 May 1998; Whitmont v Lloyd (New South Wales Supreme Court, 31 July 1995, Bryson J, unreported); King v Foster (Court of Appeal, 7 December 1995, unreported) King v White [1992] 2 VR 417, 424; Shah v Perpetual Trustee Company [1981] 7 Fam LR 97 100; Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151; Chan v Tsui [2005] NSWSC 82]. 60 In my view, Salvatore and Emanuela, but relevantly Emanuela in particular, were entitled to regard John as the prime object of their bounty. Nonetheless, he will receive on any view effectively the whole of the Maltese estate, and the New South Wales estate of Salvatore, amounting in all to more than $1 million. That still leaves practically $2 million in Emanuela's New South Wales estate available for distribution. 61 In this case, therefore, it was possible to make ample provision for the prime object of the testatrix's bounty, without treating social security as a sufficient resort for the others who had a claim to testamentary recognition. A wise and just testatrix would have provided for the other children, to the extent that she was able to and they had relevant needs, rather than leaving them to resort to social security for that purpose. In this case, I am satisfied that provision ought to have been made for the claimants without regard to their receipts of means tested pensions."
5. Mr Brown also drew attention to the Court of Appeal's approval of earlier dicta of Bryson J in Evans v Levy [2011] NSWCA 125: "55 Mr McNally cited some dicta to support his proposition. In Whitmont v Lloyd (Bryson J, 31 July 1995, unreported), Bryson J said (at 14-15): "The protection of public funds from claims by indigent persons is not a purpose of family provision legislation but they are incidentally protected by the legislation, which was not enacted solely for protection of public interests and serves public policy ... In my opinion, the availability of Age Pensions and other social benefits is a circumstance which should be regarded, and particularly in small estates it may be appropriate to leave an applicant wholly or partly dependent on them or to mould the provision made so their availability is preserved in whole or in part. The acceptance of benefits for which statute law provides is in every way legitimate, involves no social stigma and incurs no disapproval from the Court. It is not the Court's task to be vigilant to throw burdens off public funds and onto private estates. Still it is true that the legislation has a public policy purpose and it is not appropriate that where there is wealth in an estate it should be directed away from the less fortunate and successful of the eligible persons so as to enhance their claims to social benefits and maximise the resources of others; the Court should not disregard the interests of the public in public funds ... ". I cannot, with respect, see anything in that statement with which I would disapprove, but it does not go anywhere near a support of Mr McNally's proposition. Moreover, the proposition does not take into account at all the fact that there are, for most pensioners, side benefits of considerable value in merely having a part pension, such as the right which becomes more and more valuable as one gets older to have medical services provided at considerable concessional rates."
6. In so far as accommodation was concerned, Mr Brown submitted that the evidence of accommodation tendered in Tomas' case of suitable homes on Bribie Island was that they cost between $550,000 and $650,000 so that a provision should be made accordingly.
7. Mr Brown acknowledged that the defendants' evidence included evidence of the cost of two bedroom apartments including on Bribie Island for prices of between $329,000 and $349,000. He submitted that, because these alternative types of accommodation had not been put to Tomas in cross-examination, the rule in Browne v Dunn (1893) 6 R 67 (HL) prevented Mr Bilinsky from relying on them. I reject that submission. The rule in Browne v Dunn is a rule of fairness. There is no doubt that the cost of alternative accommodation was understood to be an issue between the parties. Tomas' evidence, on which Mr Brown relied in support of his submissions on this point, had been filed in response to the defendants' evidence about the cost of two bedroom apartments. Furthermore, Mr Bilinsky had cross-examined Tomas on the question of the adequacy of the rented two bedroom apartment which he has occupied with Ms Spotswood since 2000.
8. In relation to expenses and contingencies, Mr Brown submitted that, when the various items identified by Tomas in his evidence (see paragraph [33] above) as being his future needs, including for a buffer, were added together, the figure came to $494,000. On this basis he submitted that adequate provision for expenses and contingencies was $500,000.

The defendants' submissions

1. Mr Bilinsky submitted that adequate provision would be an additional provision of $400,000 so that the total amount Tomas received under the Will would be $450,000. He submitted that the $1.1 million for which Mr Brown had contended was 22 times the value of the provision that Dr Stejskal had determined to leave Tomas under the Will. To accede to such a substantial alteration would be to interfere unjustifiably with Dr Stejskal's freedom of testamentary disposition: Sgro v Thompson [2017] NSWCA 326 at [83] - [86] per White JA (with whom McColl JA agreed); Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19, per Dixon CJ.
2. Mr Bilinsky drew attention to the fact that Tomas had been contentedly living in a two bedroom apartment shared with Ms Spotswood for the last 20 years. Each of them occupied one room and there was a small living area that met his needs comfortably. Significantly, he had not had to look, nor had he tried to look, for different or bigger accommodation.
3. In those circumstances Mr Bilinsky submitted that the Court should have regard to the defendants' evidence that two bedroom apartments or villas on Bribie Island cost between $200,000 and $350,000. Alternatively there was also evidence of two bedroom apartments and villas in Wooloowin, being the area in which Tomas was currently living, costing between $309,000 and $329,000.
4. In so far as Wooloowin is concerned, I do not overlook Tomas' evidence that, if he were able to purchase his own property, it would not be in Wooloowin because he did not regard it as a particularly desirable area. However, I give that evidence only minimal weight because there is no suggestion that Tomas has ever sought to move to other rented accommodation, either by himself or with Ms Spotswood.
5. Mr Bilinsky's submission was that if Tomas received a total provision of $450,000, the evidence supported the conclusion that he could acquire a suitable two bedroom apartment on Bribie Island (which suited Tomas' interest as a fisherman) for $250,000, that there could even be accommodation for Ms Spotswood if they wanted, and still leave Tomas a fund of $200,000 for expenses and contingencies. $450,000 was adequate provision for Tomas while still being appropriately respectful of Dr Stejskal's evident testamentary intention to make substantial donations to the Charities.

Resolution

1. As will be apparent from the foregoing, the parties accepted that this was a case where it was proper for additional provision to be made, both in respect of Tomas' accommodation, and for his necessary expenses and contingencies. However, they were far apart on how this should be done.
2. I have carefully weighed the various matters set out in paragraphs [13] to [47] above. In doing so, I have taken into account that, while freedom of testamentary disposition is a matter which the Court can properly take into account, it does not negative the Court's obligation to make an order for provision where the prerequisites for such an order under the Act have been established. Furthermore, I have borne in mind that, while oft-repeated dicta such as those in Taylor may be a useful guide, they do not supplant the proper application of the Act to the circumstances of each case. What I have said in this paragraph follows from the decision of the Court of Appeal in Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161.
3. Taking all of those matters referred to in paragraph [62] into account, I nevertheless accept Mr Brown's submission that the proper application of the Act to the circumstances of this case does give rise to a result which reflects what was said by Brereton J (as his Honour then was) in Taylor at [58] (see paragraph [51] above).
4. This is a substantial estate. The only relevant moral claim upon it and upon Dr Stejskal's testamentary bounty is by Tomas. That is not diminished by the state of the relationship between them which I have found (see paragraph [47] above) is no fault of Tomas.
5. I have no doubt that Dr Stejskal had a moral duty, given the size of his estate, Tomas' age, limited future prospects and negligible asset position, to make adequate provision for Tomas' accommodation, necessary expenses and some contingency for the remaining 22 or so years of Tomas' life.
6. Turning to the question of accommodation, I accept Mr Bilinsky's submissions, in particular his characterisation of the types of houses which form the basis for Mr Brown's submission of $550,000 to $650,000 as "grandiose". The houses which Tomas identified as being suitable on Bribie Island were all three, four or five bedroom, free standing homes, a number of them being on the water. Given Tomas' evidence that his current accommodation met his needs, to make provision for his accommodation which reference to those examples would be to make provision considerably in excess of what could be described as "adequate".
7. Tomas' own evidence clearly supports the proposition that a two bedroom apartment is adequate for his needs. That is how he has lived for nearly 20 years and he has not sought to change those arrangements. Nor did he give evidence that he needed (as opposed to would like) something larger. The closest he came to doing that was to suggest that sometimes his playing a musical instrument in the lounge room disturbed Ms Spotswood.
8. The Court finds that adequate provision in relation to accommodation should be such as would permit Tomas to purchase a two bedroom apartment on Bribie Island. The finding for a two bedroom apartment is made on two bases. First, the Court is satisfied that there is a real prospect that Ms Spotswood may move to any apartment purchased by Tomas so that they can continue the relationship of friendship and mutual support which they currently enjoy. Second, a wise and just testator, when making a provision for an adult son in Tomas' position, would allow for a two bedroom apartment on the basis that his accommodation should allow him to have visitors to stay and, if otherwise unoccupied, be available for the storage of Tomas' musical instruments and other possessions.
9. Relying on the defendant's evidence in relation to the cost of two bedroom apartments on Bribie Island, the Court finds that $350,000 is adequate provision in that regard.
10. In so far as an amount for expenses and contingencies is concerned, with no disrespect intended, it seems to me that, with two exceptions, the various items listed in Tomas' affidavit set out in paragraph [33] above are wants and not needs. The two exceptions are the dental work ($62,000) and his monthly shortfall which, assuming he stops smoking, will be approximately $80 per month.
11. Tomas' current contribution to rent is $560 per month or $6,720 per annum. If he buys his own apartment he will no longer pay rent. However, there is no evidence as to what his rates and strata fees might be.
12. In my view an adequate amount for expenses and contingencies is $350,000. $62,000 of this will go to dental work, leaving $288,000. Tomas can deal with that amount as he wishes, including applying it to some of the items listed in paragraph [33] above. However, having regard to his life expectancy of 22 years, if he does nothing with it, it will give him an annual contingency amount of $13,000 per year. Given his age, lifestyle and demonstrated pattern of expenses, I regard that as an adequate provision for contingencies.
13. The foregoing means a total provision for Tomas of $700,000 (including the $50,000 he has already received). In considering the question of adequacy I have also taken into account the interests of the Charities and the weight to be given to Dr Stejskal's freedom of testation. A provision for Tomas of $700,000 will leave just over $500,000 to go to each charity which, in my respectful view, gives the appropriate degree of respect to Dr Stejskal's express testamentary wish to leave significant benefactions to the Charities.
14. Finally on this question I record that, without disputing the correctness of Mr Brown's submissions regarding the relevance of the consideration of relieving the public purse in appropriate cases, it has played no part in my reasoning. This is because Tomas led no evidence as to what his entitlement to a pension would be (if any) on the assumption he received the amount sought on his behalf by Mr Brown and then spent that money on the various items identified in paragraph [33] above.

A final submission

1. One of the defendant executors, Mr J Betar, is a solicitor. Mr Brown submitted, albeit faintly, that the recent rejection of the Chorley exception by the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 meant that, insofar as Mr Betar was performing work as the solicitor on the record, to quote Mr Brown's submission, "he appears no longer to be able to charge for acting for himself". The Chorley exception was explained by the High Court at the outset of the judgment of the plurality: "1 As a general rule, a self represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, a self represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation. This exception is commonly referred to as "the Chorley exception", having been authoritatively established as a "rule of practice" by the Court of Appeal of England and Wales in London Scottish Benefit Society v Chorley."
2. Mr Brown was correct to place little emphasis on this submission. I accept Mr Bilinsky's submission that the High Court's decision (and the Chorley exception) have nothing to say about the entitlement of a solicitor executor to his professional fees in respect of litigation where the solicitor executor has undertaken professional work for the estate as the solicitor on the record. The reasons for this are: 1. Mr Betar is not a beneficiary under the Will. As solicitor on the record he is acting in a professional capacity for the estate representing the interests of the executors in their obligation to uphold the will. He is not, to quote the High Court (see paragraph [75] above), "a self-represented litigant who happens to be a solicitor." 2. These are not proceedings by Mr Betar to recover his legal fees. 3. The Will includes: "9. I DECLARE that any executor or trustee for the time being of my will being a solicitor: (a) shall be entitled to be paid all usual professional charges for work done by their firm in relation to my estate (as executor or trustee or both). (b) may also charge a reasonable amount in recompense for non-professional work such as receiving rents and other income, paying accounts, maintaining the associate books, investing funds, managing properties and doing the work that a trustee not being a solicitor would normally do by that person or his firm on the same basis as if he or she were not one of my executors but employed to act on behalf of the executors. (c) may in addition to the above apply to the court for commission for his pains and trouble. This direction is made subject to the Legal Profession Uniform Law and its Regulations and the Rules made thereunder, including the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, or any successor to the same. 10. I DIRECT that the trustees appoint the firm of BETAR LAWYERS as their solicitors in relation to the execution of the provisions of this my will and any codicil to it and in the event that the said firm no longer exists at the date of my death then IT IS MY WISH that the firm which carries on its former practice is appointed by the trustees instead, in the event that the said firm no longer exists and no other firm carries on its former practice, or the said firm or other firm which carries on its former practice declines to act, my trustees shall appoint a firm of their choosing. This direction is not intended to derogate from the statutory power of my trustees."

Orders

1. The orders of the Court are: 1. In addition to the legacy of $50,000 set out in clause 5(b) of the Will of the late Jan Stejskal made 12 December 2017, there be additional provision for the plaintiff Tomas Stejskal in the sum of $650,000. 2. The plaintiff's costs be paid out of the Estate of the late Jan Stejskal on the ordinary basis. 3. The defendants' costs be paid out of the Estate of the late Jan Stejskal on the indemnity basis. 4. The exhibits be returned to the parties to be held by them in accordance with paragraph 28 of Supreme Court Practice Note SC Gen 18.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2019