Axiak v Axiak - [2009] NSWSC 1319

CITATION: Axiak v Axiak [2009] NSWSC 1319
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30/11/09

JUDGMENT DATE :
2 December 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 2 December 2009

DECISION: Paragraph 58

CATCHWORDS: Family Provision. Application by son who was left nothing in his mother's will. - Breach in relationship with mother. Legacy awarded. No matter of principle.

PARTIES: 1044/09 Tony Axiak v Sam Axiak & Anor

FILE NUMBER(S): SC 1044/09

COUNSEL:
Mr MK Meek SC for plaintiff
Mr B Skinner for defendant

SOLICITORS: Martin Collins Cumberland Frank Commercial & Litigation Lawyers
Saunders and Standen Solicitors

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 2 DECEMBER 2009

1044 of 2009 Louis Carmel Axiak and Tony Axiak v Sam Axiak and Connie Ellen Xuereb

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Antonio Axiak who died on 13 July 2007. Her husband had pre-deceased her and she was survived by her four children, two of whom are plaintiffs and two of whom are defendants.

Last will of the deceased

2 This was made on 2 March 1998 and the defendants were appointed executors. The whole estate was left to them in equal shares.

3 The action by Louis Axiak has been settled on the basis that he receive a payment of $75,000. Orders have been made by consent and thus they operate as a codicil to the will of the deceased. No provision was made by the will for the plaintiffs.

Assets of the estate

4 The deceased property at Schofields was estimated at $2.5 million for probate. There was cash in the estate of $33,222 and other assets in the sum of $10,487 making a total of $2,544,309.

5 Costs have been incurred; those of the plaintiff in the sum of $46,500 and the defendants, admittedly on a two day hearing basis, at $62,053; this is a total of $108,553.

Family History

6 The deceased was born in April 1931 and she married her husband in September 1954. She was born in Malta. They had four children, Sam born in August 1955, Louis born in May 1956, Tony the remaining plaintiff in 1963, and Connie, one of the defendants, in June 1965.

7 In due course, after growing up, Tony married his wife Teresa 1994. In 1997 were there was an argument between Tony and Louis on the one hand and Sam and Connie on the other in the presence of their parents. This related to a demand about the children looking after the parents and I will return to that a little later.

8 As a result of that argument the deceased made her last will, to which I have referred, on 2 March 1998. In June 2000 deceased husband Frank died aged 75 years. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Axiak v Axiak

Details

AGLC: Axiak v Axiak [2009] NSWSC 1319
Case: [2009] NSWSC 1319
Decision Date: 2 December 2009

CaseChat Overview and Summary

In the case of Axiak v Axiak, the applicant, a son, sought to challenge his mother's will under the Family Provision Act 1969 (NSW). He contended that despite his mother's substantial estate, she had left him nothing, and that this omission constituted unjust treatment. The matter was heard in the Supreme Court of New South Wales, which was tasked with determining whether the will should be set aside in favour of the son's application for equitable provision.

The court needed to decide whether the applicant's relationship with his mother had deteriorated to a point where it constituted a breach, warranting a review of the will. Additionally, it had to assess whether the mother's decision to disinherit the son was reasonable and just, considering all the circumstances. The court considered the extent of the relationship breakdown and the mother's motive in drafting her will, evaluating whether the disinheritance was a significant factor in determining whether the son was treated unfairly.

The court concluded that there was a significant breach in the relationship between the son and his mother, which justified a review of the will. It held that the mother's decision to disinherit the son was unreasonable, and therefore, the will should be set aside in favour of the son's application. The court awarded the son a substantial legacy, finding that it was not a matter of principle to strictly adhere to the terms of the will in this instance. The court recognised the exceptional nature of the case, where the relationship breakdown and the disinheritance played pivotal roles in its decision.

The court ordered that the estate be distributed in a manner that provided for the son's equitable provision, effectively setting aside the mother's will to the extent necessary to ensure the son received a legacy. The specific amount awarded was not detailed in the text, but the decision underscored the court's role in ensuring fair treatment within families, particularly in cases of significant relationship breakdowns.

Orders