Stejskal v Hely & Ors

The plaintiff, Tomas Stejskal, to whom I shall refer without disrespect as "Tomas", is a 61 year old mechanical fitter. By reason of his current medical circumstances, he is unlikely ever to work again. The defendants are the executors of the estate of Tomas' late father, Jan Stejskal, to whom I shall refer as "Dr Stejskal". Dr Stejskal died by his own hand on or about 20 September 2018 at the age of 86. Tomas is the only child of Dr Stejskal's first marriage.

Dr Stejskal made his last will and testament on 12 December 2017 (the “Will"). He died leaving a property at Wallacia, cash at bank and some shares. The value of his assets at death was approximately $2.5 million.

Under the Will Dr Stejskal left $50,000 to Tomas. The Will also provided for two $20,000 legacies and gifts of chattels to other persons. The residue of the estate was left to be divided equally between St Vincent’s Clinic Foundation and the Royal Flying Doctor Service of Australia (the “Charities").

The estate has been converted into cash and substantially administered, including paying Tomas the specific legacy of $50,000. The parties were in agreement that, after taking into account all costs and expenses, including the parties' costs of these proceedings, the total net estate remaining was $1,759,335.48.

The hearing was conducted with commendable economy. There was no dispute that, for the purposes of making a claim for a family provision order under the Succession Act 2006 (NSW) (the “Act"), Tomas was the only eligible person who had brought a claim, and that his claim had been brought in time.

The only other eligible person in relation to Dr Stejskal's estate (his second wife, Bohuse Stejskal-Jarosova, having predeceased him) is Tomas' mother. She still lives in the Czech Republic. The Court finds that notice of these proceedings was served on Tomas’ mother, Bozena Stejskalova, in the Czech Republic. She has taken no part in these proceedings.

Most importantly, and entirely correctly if I may respectfully say so, the defendants conceded that the Will did not make adequate provision for the proper maintenance, education and advancement in life of Tomas for the purposes of s 59(1)(c) of the Act. Therefore, the only question posed for determination was what provision the Court thought "ought to be made for the maintenance, education or advancement in life of [Tomas], having regard to the facts known to the Court at the time the order is made” (s 59(2) of the Act).

Tomas lives in rented accommodation, has very few assets, very little cash at bank and a superannuation balance of $54,396.51 (most of which is comprised of the $50,000 legacy he received under the Will). By reason of his age and health, he has no serious prospect of returning to full time employment, although there was some suggestion that he might be able to obtain some work in his trade as a mechanical fitter from time to time. However, on any view even that possibility will diminish over time.

Mr J E F Brown of Counsel, who appeared for Tomas, submitted that Tomas should receive provision of $550,000 - $650,000 to be able to purchase accommodation and a lump sum of $500,000 to cover necessary expenses and provide a buffer for contingencies. Mr J Bilinsky of Counsel, who appeared for the defendants, submitted that $400,000 would be a proper additional provision for Tomas. When combined with what Tomas had already received, Mr Bilinsky submitted that a total provision of $450,000 would enable Tomas to purchase accommodation (if he wished), or if he wished to remain in his current rented accommodation, would provide a more than generous sum to meet expenses and contingencies.

The Court is satisfied that Dr Stejskal owed Tomas a moral duty to provide Tomas with a sufficient sum to enable him to buy his own accommodation and to contribute towards his necessary expenses and to provide for contingencies. The Court has concluded that an additional provision of $650,000, when combined with the existing legacy of $50,000, is adequate provision for those purposes.

The evidence clearly supports the conclusion that adequate accommodation for Tomas to meet his needs can be bought for $350,000. Furthermore, an appropriate sum for expenses and contingencies, especially taking into account what those are and giving appropriate weight to Dr Stejskal's freedom of testation to benefit the Charities (towards which he had displayed an affinity during his lifetime) will be met by a provision of $350,000, including the $50,000 legacy already paid to Tomas.

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.

Tomas' own undisputed affidavit evidence was:

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.

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.

In 1968 Dr Stejskal left Czechoslovakia to live in Australia with Bohuna. He left Tomas and his mother behind in communist Czechoslovakia.

In 1971, when Tomas was 13 years old, his mother and Dr Stejskal divorced.

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."

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.

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.

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.

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.

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.

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.

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,

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' assets comprise:

Tomas does not have any debts.

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.

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."

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.

Tomas does not have any children or other dependents.

Tomas' affidavit evidence as to his needs was:

In an updating affidavit Tomas also said:

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.

There were two reports in evidence from Tomas' treating general practitioner. The first of these states, and the Court finds:

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:

Finally, the evidence included a report from a dentist who had examined Tomas. That report included:

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

Tomas has received his legacy of $50,000 under the Will. During Dr Stejskal's lifetime he provided these benefits to Tomas:

Dr Stejskal also gave Tomas $2,400 to assist him with fines and legal fees but Tomas had repaid this amount.

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:

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.

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.

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.

No other person is liable to support Tomas.

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.

Mr Brown made two fundamental submissions.

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.

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.

Both of these propositions were dealt with by Brereton J (as his Honour then was) in Taylor v Farrugia [2009] NSWSC 801 (“Taylor”):

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:

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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".

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.

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.

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.

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.

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.

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.

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.

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.

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:

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:

The orders of the Court are: