Beham, Re [1991] QSC 242

~~~ 1 IN THE SUPREME COURT OF QUEENSLAND ,\/J 10 20 30 40 CHAMBERS O.S. No. 915 of 1990 BEFORE SENIOR MASTER HORTON BRISBANE, 24 JULY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF the Succession Act 1981 -and- IN THE MATTER OF Horst Guenther Beham, deceased -and- IN THE MATTER OF an application by Barbara Luzie Beham under Part IV of the said Act ORDER SENIOR MASTER: This is an application by Barbara Luzi Beham pursuant to s.41 of the Succession Act of 1981 forfurthe and bettr provision out of the estate of her late husband, Horst Guenther Beham, late of 164 Tierney Drive, Currumbin, i the State of Queensland, company director, who died on 2 Apri 1990 leaving a w•ill dated 15 June 1989. The applicant is the second wife of the deceased, having married him in March 1985. Prior to her marriage to the deceased she was a German citizen, and in order to marry her late husband she gave up her employment and home in Germany to so join him in Australia. She left behind in Germany her adult daughter from a previous marriage which had ended in divorce in 1983. She is presently some 55 years of age and stands possessed of assets of a modest nature only, consisting of cas investments in the sum of $59,000, the proceeds of payments 60 Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 12 -- 10 20 30 40 made to her_ by the tru_stee of. her late husband's superannuat;o~ or provident fund pursuant to the exercise of the discretion conferred in the said trustee. In addition to this payment th executors have paid her some $10,600 by way of maintenance fro the estate. She has, in the 1989/90 year, worked casually for wages, earning the sum of $2,160, but given her age and the fact that she has not worked during the five years of the marriage I think it clear that her residual earning capacity is, at best, minimal. Her needs are set out in the affid~vit material and they appear to be those commensurate and in accord with what one would expect of an elderly woman living alone. She has a need to provide herself with a roof over her head and the other necessities of life. These, in my view, include a telephone and a motor car of respectable vintage and state of mechanical condition. I do not consider it appropriate to include her enti~Jement to receive social security in view of the size of the estate. The testator, in his will, provided for her by leaving her an equal share in rest and residue along with his four children from his first marriage. On the evidence before me this share would amount to something in the order of $109,000 which, it is clear, would be insufficient to provide her with a home, as well as maintainin 10 20 30 40 50 50 60 herself. The Court's jurisdiction, of course, is always dependent upon it being satisfied that the testator, in all the circumstances, has failed to make provision for the proper maintenance and support of a member of a designated class of Govt. Printer, Old. 2 60 -- 2 of 12 -- 10 20 30 40 50 60 potential applicants. As a widow she clearly comes within tha class of applicant and, no doubt due in no small part to the fairly optimistic view that the testator took as to the value of his assets, in my view he clearly failed to make proper provision for the applicant's maintenance and support. True it is the marriage was not one of great duration. 10 However, in order to fulfil her marital obligations th applicant, as I have said, gave up her home, her employment and her family-life in Germany to travel where, no doubt, it woul appear she presently intends to reside. It was urged 1 on me that this may be a case where it was proper to consider the making of an order by way of a life interest in the former matrimonial home, and I was referred to the unreported decision of the Full Court of this Court in re Pereira (0S551/89) where, on appeal, the Full Court set aside the order of the learned trial judge providing for an estate in fee simple and substituted therefor a life interest. In my view, in these cases it is very difficult to draw wide assertions of principle, and sufficient it is for me to say that in this case the former matrimonial home, having an accepted valuation of $145,000, constitutes a relatively modest proportion of the overall assets of the estate and the balance of the estate after providing for an estate in fee simple together with a further modest financial accommodation still allows sufficient funds available to recognise both the testator's wishes and intents as well as the moral claim that others of his family have upon his bounty. Much of the estate stands in the name of two companies, both of which were solely the effects of the testator and at the suggestion of all parties I have treated company assets as though they are Govt. Printer, Qld. 3 20 30 40 50 60 - .. -- 3 of 12 -- 10 20 30 directly personally owned by the testator . . Accordingly, I make provision for the applicant, Barbara Luzie .Beham, as follows.: ·(a) an estate in fee, simple in the former matrimonial home.located at 164 Tierney Drive, Currumbi Waters, being described as,lot 75 on Registered Plan number 126584 ~n the County of Ward, Parish of Tallebudgera containin an area of one acre, 15.3 perches, .and being the whole of the land described on Certificate of Title Volume 4591 Folio 149 together with (b) a specific legacy in the sum of $50,000, being a sum which I calculate as appropriate to supplement the $60,000 which. she has already received from the husband's superannuation fund, the total, in my view, being sufficient t her .needs and .the duration of the marriage with respect to her ongoing support and maintenance as well as the need to provide herself with an appropriate motor vehicle. It:has been, as I understand, the subject of implicit agreement that the applicant should also have returned to her a diamond ring referred to in the papers and valued by Hardy Brothers in the sum of $1,000 which, I understand, is the subject of an uncontradicted assertion by her that it was a 40 gift to her by the testator. L turn now•to Maree Beham, who is the first wife of the testator and the mother of his four children. Mrs. Maree Beham was married to the deceased in 1953 and separation occurred in 1980. Hence she was married to him for some 27 years at the 10 20 30 40 50 50 60 time of separation when she and, as I understand it, the two then infant children left the former matrimonial home and apparently had to fend. for themselves. I am not supplied with any material as to the circumstances of either party at separation, but the evidence of Mrs. Diessel leads me to the Govt. Printer, Old. 4 60 -- 4 of 12 -- 10 20 30 40 50 60 conclusion that as of 1980, being one year after Mrs. Diessel started to work for the deceased, the deceased was employing in excess of some 50 employees. Consequently, it seems to me somewhat puzzling and, indeed, troubling that the first Mrs. Beham received by way of property settlement the remarkably small sum of $40,000. This sum was received apparently pursuant to some written agreement between the parties, which written agreement was, not surprisingly, not the subject of an application for approval in the Family Court. In addition to this meagre sum by way of settlement there was registered in the Family Court a propert maintenance agreement in what appears to me to have been equally meagre sums for both her own support and the support of her two then infant children. At one stage the total weekly maintenance of $70 per week appears to have been satisfied by the deceased allowing Mrs. Maree Beham and one child to live in a dwelling which he then owned. After this, however, Mrs. Beham left this home and then lived in a caravan which was owned by the deceased. Presently she lives in a Housing Commission flat, has virtually no assets and draws a widow's pension. In addition to caring for herself she looks .after her youngest child, Anita, and the infant daughter of Anita who, o my calculations, is a matter of a few weeks old. Anita, herself, is the recipient of social security, the father of this child apparently having been a man of straw who has, for reasons apparently quite painfully obvious, decamped without attempting to shoulder his share of the responsibility of providing for the support of the infant; Mrs. Beham, in my view, clearly comes within the 5 10 20 30 40 50 60 -- 5 of 12 -- 10 20 30 40 50 60 definition of tho$e persons eligible to bring_,an :application for proper support,andmaintenance, and the $20,000 which the deceased provides for her-by way of specific legacy fails to satisfy the moral obligation which rested upon him as .a. comparatively weaithy man to satisfy his moral obligation to ' I • his first wife. The quantjfication of a proper sum for her is not an easy matter. Mr. Killin of counsel, who appears for her, has calculated the present-day value of the weekly sum of $40 (being the periodic maintenance) capitalised at 3 per cent over her life expectancy of 26 years. I should say that I do not regard $40 as a proper weekly sum by way of periodic maintenance for a woman in Mrs. Maree Beham's present circumstances given that the testator died a man seized of assets worth $880,000. It may well be that at that time the practice of arranging periodic maintenance so as to maximise the social security contribution was followed. I capitalise accordingJ.y the weekly sum of $40 (inclusive of arrears of maintenance of approximately $2,600, which leads to a total of something of approximately $42,000). To this should be added the specific.legacy of $20,000 giving a total of $62,0QO. In my- view, as I have said, $40 a week is a grossly inadequate su having regard to the needs of Mrs. Beham and the capacity of the testator to pay, and doing the best that I can I allow the sum of $140,000 by way.of provision for Mrs. Maree Beham from the estate of the testator. I should make it perfectly apparent that in fixing this., sum of $140,000 I act upon the undertaking offered by Mr. Killin of counsel on behalf of his client, Mrs. Maree Beham,. not. :to prosecute any rights that she may have vis-a-vis the maintenance agreement agc1.inst _the estat of the testator. Govt. Printer, Old. 6 10 20 30 40 50 60 -- 6 of 12 -- 10 20 30 40 50 60 I turn now to the remaining members of the Beham family. Michael is presently aged 30 years and hence at the time of separation was approximately 19 years. He enjoyed a close relationship with his father and managed to obtain trade qualifications as a plumber employed during his apprenticeship and thereafter by his father's company. He is presently married with a wife who no longer works and is the father of two very young infant children. After his father's retirement Michael apparently set up business on his own and borrowed a substantial sum of money to fund that business. Regrettably, the down-turn in the building industry on the Gold Coast has had a severe effect on his business and he is presently unemployed. He and his wife are the owners of a modest Gold Coast home which was purchased aided by the benefit of an apparent interest-free loan granted to him by hi father. There remains approximately $37,000 outstanding under that mortgage owed by Michael and his wife to the estate. Mr. Fraser, who appears, amongst others, for Michael Beha has urged upon me the strength of his client's case. True it is that he worked for his father for a substantial period of years, but there is no evidence before me that this was other than for full wages. It may well have been that the father expected more of him than other employees, but, no doubt, in the event of a down-turn in the economy Michael may have enjoyed a greater security of employment than did other employees. Nevertheless, Michael is someone who, although not in a strong financial position, has made something of his life and is, albeit an adult independent son, someone whom the deceased ought to have considered when making provision under his will. Under the will he is an equal beneficiary with his Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 12 -- 10 three other siblings and .the deceased's second wife. Accordingly,.orr rough.calculations, he stands to benefit in"th sum of $109,000. Karen:is·the next .child of the deceased. She is presently 28 years of age, married, .with no substantial assets but with an education to 9rade 12. Her husband has set up his own business and it would appear that at present they are undergoing hard times. She has had the benefit of a gift by her father to herself in the. sum of $5,500 which I think it sensible in all the circumstances to regard as a gift and not 20 30 repayabl~. She, like Michael, also stands to benefit under the present terms of the will in the sum of $109,000. Christopher is a qualified fitter and turner with, however, a special skill in repairing pumps. This special skill was acquired, no doubt, as a result of his apprenticeship to.one of his father's former companies, Alfa Pumps, and he is presently unemployed and apparently having some difficulty in obtaining employment. He.has expressed the wish to undeL±ake tertiary studies at.the Bond University, but there is no ,material·beforeme to indicate whether or not this is 10 30 40 40 50 an optimistic expectation or a wish founded on reason. He, like his brother, left school at the age of Grade 10. He is presently living in a de~facto relationship and his de facto wife appears to enjoy poor health. Both he and his de facto wife are unemployed. Finally, the.youngest child of the testator, Anita, finds herself irr a'most unenviable predicament. She has had grave difficulty during her schooling, having attended a number of schools including special courses at special schools for apparent academic under-achievers. At age something like 16 o 50 60 60 Govt. Printer, Old. 8 -- 8 of 12 -- 10 20 30 40 so 60 17 years she found herself pregnant by her boy-friend and she is now the mother of an infant daughter Charlotte, who is aged approximately two weeks. The father of this child is apparently a very young man, unemployed, who is nowhere to be seen. He is unable to contribute towards Charlotte's maintenance and both Charlotte and her mother, Anita, are back living with Mrs. Maree Beham in the housing commission flat. I have been told from the Bar table that Mrs. Maree. Beham at present is exercising firm control over her daughter although, as the mother of a child two weeks old, it would. stand to reason that Anita is susceptible of restriction. She will shortly turn 18 and attain her majority when, in the normal circumstances, she will achieve full control over such assets as she may stand to gain. I have already referred to, when dealing with Mrs. Barbara Beham, the testator's superanuation or provident fund. Pursuant to the exercise of the trustee's discretion Anita received the sum of $100,000 from that fund which presently is under the control of. the Public Trustee whom, on the ilast occasion, I appointed to represent Anit~'s interests. I have expressed throughout the hearing my acute concerns as to Anita's position in view of her unfortunate educational and behaviourial history. These concerns were in no way meant as a criticism of the girl but merely to express my reservations at her capacity to deal with relatively large sum of money and her potential for exploitation. I am not pursuaded that notwithstanding her lack of formal educational and vocational training, that any large additional sums of money will alleviate her present predicament apart from· providing a roof over her head and maintaining her. She will Govt. Printer, Qld. 9 10 20 30 40 50 60 -- 9 of 12 -- 10 20 30 40 shortly Q~" an adult in law and must ultimately provide a roo for herself and . her child. She has received, in what coul only be descriQed as a wind-fall vis-a-vis her three siblings, a large sum of money, namely$100,000 and I am minded, subject to an adjustment in her favour of $40,000, to treat her equally with her three remaining siblings. In other words, when approaching the four children of the deceased in my view they should receive an equal share of his estate and the $100,000 which ha~ already come to her from the superannuation fund, subject to an adjustment of $40,000 in he, favour, because of her age and special needs .. In summary, therefore, dealing with the four children of the deceased I make provision for each of them in equal shares including, for.the purpose of calculation, the $100,000 received by Anita subject to an additional benefit to her in the sum of $40, 000 .· It seems desirable and, indeed, to reflect the wishes of the parties that I indicate that any sums of money owed by Michael and/or his wife to the estate and secured by way of th mortgage over their p~esent matri~onial home should form part of any benefit I confer on him together.with the value of the BMW of which he presently stands possessed with an allowance i the sum of $6,000 thereto. Oral evidence was led from a Mrs. Diessel before me and this was not·in anyway challenged by any party. She is a 10 30 40 so 50 60 former employee of the deceased of long-standing who was, apparently, a valued and trusted member of his staff. In his will the deceased made a specific provision for her in the sum· of $10,000; She alone was present in court and Mr. Heyworth-Smith of counsel, for the executor, very properly Govt. Printer, Old. 10 60 -- 10 of 12 -- 10 20 30 40 50 60 called her. She worked for the "deceased for something like 11 years and, having regard to this, and what I infer was the important role she played in his business, I am not minded to disturb the provision made for her. The testator, in the expectation that his estate was substantially larger than what today it appears to have been, made a very lengthy list of specific bequests, the total of which comes to $230,000. The beneficiaries under these specific bequests are Mrs. Diessel, the former employee, whose bequest in my order stands; Julia Winters, who is described as a friend, in the sum of $20,000; Maref Beham, the former wife, whose provision I have increased from $20,000 to $140,000; Bianca and Natasia Beham, grandchildren to the deceased and children of Michael, in the sum of $10,000 each, and various sisters, nephews and nieces of the deceased, most of whom are German residents. Of these persons only Mrs. Diessel was heard before me and, as I have said, I am more than satisfied of the proprietary of the 0 bequest in her favour. I should, however, bear in mind that my function is not to re-write the will of the dec~ased and, wher possible, commensurate with the meeting of the moral obligations of those persons who come within s.41 of the Succession Act, respect his wishes. It is, in my view, not possible to maintain the bequests in the sums which he provided and, accordingly, I order that the will of the testator vis-a-vis the specific bequests be read and construed to provide legacies as follows: Margaret Diessel Julia Winters Maree Beham Govt Printer, Qld. 11 $ 10,000 $ 1,000 $140,000 10 20 30 40 50 60 -- 11 of 12 -- Bianca Beham $ 2,000 Natasia Beham $ 2,000 Gerdo Arnold $ 1,000 Klaus Arnold $ 1,000 Helga Uhl ending $ 1,000 10 Hans Uhlending $ 1,000 10 Beate Uhl ending Mueller $ 1,000 Petra Loeflehner $ 1,000 Sieglinde Fragias $ 1,000 Joanita Fragias $ 1,000 20 Karin Erlmer $ 1,000 Iris Erlmer $ 1,000 Petra Erlmer $ 1,000 Isolde Ambrems $ 1,000 Astrid Ambrems $ 1,000 30 Brunhilde Rossalski $ 1,000 30 Peter Rossalski $ 1,000 Christine Ross al ski $ 1,000 These legacies are to be free of legacy interest. I adjourn the further hearing of the application to 40 40 a date to be fixed to be brought on in Chambers. 50 50 60 60 Govt. Printer, Old. 12 -- 12 of 12 --