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Barlevy v Nadolski

Barlevy v Nadolski

Case [2011] NSWSC 129 8 March 2011

Domestic Relationship

Adequate Provision

Eligible Person

Succession Law

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Barlevy v Nadolski; Nadolski v Barlevy [2011] NSWSC 129
Hearing dates: 19 October 2009, 20 October 2009, 21 October 2009, 22 October 2009, 23 October 2009, 26 October 2009, 5 November 2009, 16 November 2009, 17 November 2009, 20 November 2009, 25 November 2009, 24 February 2010
Decision date: 08 March 2011
Before: Slattery J
Decision:
See paragraphs 222 and 223 of judgment.

Catchwords: SUCCESSION - Family provision - deceased dies intestate - whether plaintiff an eligible person under Family Provision Act s6 - plaintiff claims to be in a domestic relationship with deceased in last three years of his life - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the plaintiff - whether an order for provision should be made under Family Provision Act s7 - HELD - domestic relationship existed between plaintiff and deceased at the time of his death - plaintiff an eligible person - adequate provision for the plaintiff's maintenance, education and advancement in life not made - order for provision made in the sum of $750,000 from the estate.
Legislation Cited: Family Provision Act 1982 (NSW), ss 6, 7, 9
Probate and Administration Act 1898 (NSW), s 61B(3B)(a)
Property (Relationships) Act 1984 (NSW), ss 4, 5
Succession Act 2006 (NSW)
Succession Amendment (Intestacy) Act 2009 (NSW)
Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 (NSW)
Cases Cited: Anderson v Teboneras [1990] VR 527
Churton v Christian (1988) 13 NSWLR 241
Dridi v Fillmore [2001] NSWSC 319
Re Fulop (deceased) (1987) 8 NSWLR 679
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Category: Principal judgment
Parties: Plaintiff/Cross Defendant-Susan Barlevy
Defendant/Cross Claimant-Christopher Nadolski
Representation: Counsel
Plaintiff/Cross Defendant- Mr N.A. Confos
Defendant/Cross Claimant-Mr L. Ellison SC; Mr J. Drummond
Solicitors:
Plaintiff/Cross Defendant-Bray Jackson & Co Solicitors
Defendant/Cross Claimant- Christopher Nadolski & Associates Solicitors

File Number(s): 2007/258349 2008/254743 2007/105263 2007/116247

Judgment

Introduction

HIS HONOUR : In 1941 Abraham Rotkopf escaped from the German conquest of his native Poland. Then a nineteen year old, he fled east from the invaders, as far as he could. His parents remained behind. They perished in the Nazi annihilation of the Jews of Poland. In 1942 in a state of exhaustion he reached Tajikistan. There a Russian couple took him in and nursed him back to health. He worked for them during the rest of the war and married their daughter, Anna Maximova. He and Anna had a happy marriage, which lasted over sixty years. They had no children together.

After the war Abraham and Anna Rotkopf returned to Poland. He qualified and then practised in Poland as a dentist. In 1950 Dr Rotkopf became the father by another woman of a child, Mr Edward Art. He is Dr Rotkopf's only child and he still lives in Poland.

Abraham and Anna Rotkopf emigrated to Australia in 1961. They lived together in their home in Sturt Street,…

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 Barlevy v Nadolski

Details

AGLC: Barlevy v Nadolski [2011] NSWSC 129
Case: [2011] NSWSC 129
Decision Date: 08 March 2011

CaseChat Overview and Summary

In the case of Barlevy v Nadolski, the plaintiff, Barlevy, sought to claim a portion of the estate of the deceased, Nadolski, who had died intestate. The central dispute was whether Barlevy was an eligible person under section 6 of the Family Provision Act and, if so, whether the deceased had made adequate provision for Barlevy's proper maintenance, education, and advancement in life. Barlevy argued that he had been in a domestic relationship with Nadolski in the three years leading up to Nadolski's death, thereby qualifying him as an eligible person under the Act.

The court was required to determine whether a domestic relationship existed between Barlevy and Nadolski as claimed and, if so, whether the deceased had made adequate provision for Barlevy's needs. This involved assessing the nature and duration of their relationship, the extent of financial support provided by Nadolski, and whether the provision made met the statutory requirements for proper maintenance, education, and advancement. The court had to weigh these factors against the overall estate distribution to determine if further provision was necessary.

After careful consideration of the evidence presented, the court found that a domestic relationship did indeed exist between Barlevy and Nadolski at the time of Nadolski's death. Consequently, Barlevy was deemed an eligible person under section 6 of the Family Provision Act. The court further determined that Nadolski had not made adequate provision for Barlevy's maintenance, education, and advancement in life. As a result, the court made an order for provision under section 7 of the Act, mandating that $750,000 be transferred from Nadolski's estate to Barlevy.

Orders