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Bartkus v Bartkus

Bartkus v Bartkus

Case [2010] NSWSC 889 12 August 2010

Family Provision

Costs

Family Law

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NEW SOUTH WALES SUPREME COURT

CITATION:
Bartkus v Bartkus [2010] NSWSC 889

JURISDICTION:

FILE NUMBER(S):
2009/290197

HEARING DATE(S):
6 August 2010

JUDGMENT DATE:
12 August 2010

PARTIES:
Naomi Bartkus (Plaintiff)
Nijole Bartkus (First Defendant)
Garry Neville Penhall (Second Defendant)

JUDGMENT OF:
Ball J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
M Young (Plaintiff)
B Townsend (Defendants)

SOLICITORS:
Lyons and Lyons (Plaintiff)
Rizos & Associates (Defendants)

CATCHWORDS:
FAMILY PROVISION - competing needs of plaintiff and defendant - plaintiff proposed life estate for defendant with remainder to plaintiff - needs of defendant required an order that she be entitled to entire estate. COSTS - family provision - plaintiff's case failed because of size of estate and competing needs - plaintiff tried to accommodate these needs in proposed orders - no order as to costs

LEGISLATION CITED:
Family Provision Act 1982

CATEGORY:
Principal judgment

CASES CITED:
Borham v Montague [2006] NSWSC 1289
Carey v Robson [2009] NSWSC 1199.
Carroll v Cowburn [2002] NSWSC 248
Crisp v Burns Philp Trustee Co Ltd, Holland J, SCNSW, 18 December 1979, unreported
Golosky v Golosky, NSWCA, 5 October 1993, unreported
Moussa v Moussa [2006] NSWSC 509
Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201
The Pontifical Society for the Propogation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9 at 19
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

TEXTS CITED:

DECISION:
1. Proceedings dismissed.
2. No order for costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

12 AUGUST 2010

2009/290197 NAOMI BARTKUS v NIJOLE BARTKUS & ANOR

JUDGMENT

This is an application under s 7 of the Family Provision Act 1982 (FPA) by the only daughter of Adomas Bartkus (the deceased) that provision be made for her out of her father’s estate.

The will

The deceased made his last will on 12 August 2008. By that will, he appointed the first and second defendants as his executors and left the whole of his estate to the first defendant, who was, for a period of time, the deceased’s second wife and who lived with the deceased at the time of his death.
In his will, the deceased explained his decision to leave the whole of his estate to the first defendant in the following terms:
“i.My daughter NAOMI BARTKUS received substantial benefit from the estate of her late mother (much of that estate deriving from a family law property settlement which her mother acquired but to which I contributed);
ii.Whilst I subsequently married and divorced NIJOLE BARTKUS, we thereafter resided together over many years and she proved herself to be a real friend and support to me during that time and during the time I have suffered illness. I have received real happiness and support from her friendship. The total length of our association has been about fifteen…

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 Bartkus v Bartkus

Details

AGLC: Bartkus v Bartkus [2010] NSWSC 889
Case: [2010] NSWSC 889
Decision Date: 12 August 2010

CaseChat Overview and Summary

In Bartkus v Bartkus, the plaintiff sought family provision orders from the estate of her deceased father. The deceased had left his entire estate to a trust, of which the plaintiff was a beneficiary. The plaintiff argued that her father had failed to make proper provision for her, despite her past contributions to his care and well-being. The defendant argued that the estate was sufficient to meet all needs and that the plaintiff had not been adequately provided for.

The court was required to determine whether the deceased had failed to make proper provision for the plaintiff and, if so, what orders should be made to rectify this. The court also needed to balance the competing needs of the plaintiff and the defendant, who were the sole beneficiaries of the estate. The plaintiff proposed a life estate for herself with remainder to the defendant, while the defendant argued for an order that she be entitled to the entire estate.

The court found that the deceased had not made proper provision for the plaintiff, but that the size of the estate and the competing needs of the parties made it difficult to determine what orders should be made. The court noted that the plaintiff had tried to accommodate these needs in her proposed orders, but ultimately found that no order should be made as to costs. The court concluded that the plaintiff's case had failed due to the size of the estate and the competing needs of the parties, and that no order should be made as to costs.

Orders