Boniadian v Boniadian Beniation v Boniadian

[2004] NSWSC 499

CITATION:	Boniadian v Boniadian Beniation v Boniadian [2004] NSWSC 499
HEARING DATE(S):	1, 2 April 2004 4, 5 May 2004
JUDGMENT DATE:	10 June 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 88
CATCHWORDS:	Family Provison. Applications by a daughter and a widow under Family Provision Act 1982. Daughter's blackmail of her mother was conduct disentitling in respect of the deceased. Claim refused. Further provision made for the widow.
PARTIES :	Emilia Boniadian v Katherine Boniadian Diana Beniation v Katherine Boniadian
FILE NUMBER(S):	SC 5183 of 2003; 6243 of 2003
COUNSEL:	Mr L Ellison for plaintiff, Emilia Boniadian Mr P Blackburn-Hart for plaintiff, Diana Beniatian Mr JR Wilson SC for defendant
SOLICITORS:	Walter Kissane & Plummer for plaintiff, Emilia Boniadian L Rundle & Co for plaintiff, Diana Beniatian Haylen McKenzie for defendant

- PAGE 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 10 June 2004

(Estate of the late Boniad Boniadian)

JUDGMENT

1 MASTER: This is the hearing of two applications under the Family Provision Act 1982 (NSW) (the Act) in respect of the estate of the late Boniad Boniadian who died on 11 June 2003 aged approximately 63 years. He was survived by his second wife, Emilia Boniadian, the plaintiff in matter 5183 of 2003, his daughter, Katherine Boniadian, the defendant in both proceedings. The plaintiff in proceedings 6243 of 2003 is the deceased’s stepdaughter, Diana Beniation, who was the child of the deceased’s first wife. In proceedings 5183 of 2003 there is also a claim to declare void the transfer, unilaterally severing the joint tenancy in respect of the property at 7 Carbeen Street, Wamberal which was the former matrimonial home of the deceased and his widow.

The last will of the deceased

2 The last will of the deceased was made on 2 August 1996. Under that will he appointed his daughter, Katherine Boniadian, the executor and trustee. The deceased gave legacies of $5,000.00 to each of his three stepchildren. Paragraph 4 of his will was in these terms:-

“ I GIVE to HEROS BONIADIAN, DIANNA BONIADIAN and IDA BONIADIAN the children of my late wife VARTOOSH BONIADIAN the sum of Five thousand dollars ($5,000.00) each and I further state that I have made no further provision for them in this my Will for the reasons:
a. that on the completion of the administration of the estate of my late wife VARTOOSH BONIADIAN in 1994 I gave to each of them the sum of Sixty thousand dollars ($60,000.00) and,
b. Since my late wife’s death I have had no contact with any of the said children.”

3 Thereafter the deceased left a life estate to his widow of certain land described as a particular folio identifier. Because that land at Wamberal had been subdivided after the date of the will that folio identifier no longer exists and, accordingly, the gift to the plaintiff, widow has failed. He left the residue of his estate to his daughter, Katherine.

Family History

4 The deceased’s brother was married to Vartoosh Boniadian and they lived in Iran at that time. The brother and his wife had three children, Diana who was born on 24 February 1949, Ida, commonly known as Yvette born on 8 December 1955 and Heros born on 17 September 1946. The deceased’s brother died in 1957 in an accident at his work.

5 The widow, Vartoosh Boniadian, married the deceased on 27 June 1962 and the three children lived together with the deceased and his new wife. On 24 November 1963 the deceased and his wife had a child, Katherine, who is the defendant in the proceedings.

6 In 1969 the family migrated to Australia and settled in Sydney. In 1971 the stepdaughter of the deceased, Diana, married David Bills and left home but she still lived in Australia. In 1976 they separated and Diana moved to Iran for a year before returning to Australia to live with her mother and the deceased for some three months. After three months she moved to Los Angeles where she married and had a son, Osheen. Unfortunately the marriage broke down a few months later and in December 1980 Diana and her son returned to Sydney where they lived with her mother and the deceased until early 1981 when she again returned to Los Angeles.

7 In 1983 Diana was joined by her mother and the deceased for approximately one year and they all lived together in Los Angeles. The deceased and his wife bought a dry cleaning business and Diana worked in that business for no wages. In 1984 the business failed and Diana’s mother and the deceased returned to Australia. In 1985 Diana and her son were also living in Australia in one of the units at Bay Road, Waverton. They remained living there until 1986 when Diana and her son returned to Los Angeles.

8 In July 1986 the plaintiff’s mother disclosed to Diana that she had been raped at age 7. The plaintiff said that something similar had occurred to her. This started numerous discussions between Diana and her mother as to the identity of the person who interfered with Diana. Eventually Diana was forced to disclose that the person was the deceased.

9 In December 1990 Diana sent her mother a letter in which it is said that she demanded money from her mother and if she did not give it to her then she threatened to disclose the deceased’s actions to the family. The terms of the letter are in dispute. It caused a substantial rift between Diana, her mother and the deceased.

10 On 2 December 1991 Diana’s mother, Vartoosh, committed suicide. Under her will she left $60,000.00 to each of her three children by her first marriage and the deceased paid these amounts to them. As there was no cash in the estate he probably had to raise funds by way of mortgage to pay the amounts. The residue of the estate went to the deceased. There was an estrangement at this time between the deceased, Diana, Heros and Yvette because of inter alia their demand for their funds. There was a reconciliation late in his life between the deceased and Heros and the deceased and Yvette. The deceased never spoke to Diana again. Indeed he did not speak to her after 1986.

11 In 1992 the plaintiff, Emilia Boniadian, met the deceased. At that stage she was not divorced from her third husband. She divorced her husband in 1994.

12 On 2 August 1996 the testator made his will to which I have referred. On 10 August 1996 there was a pre-nuptial agreement signed by the deceased and the plaintiff, Emilia Boniadian. All this agreement did was to recognise that each party had no claim on assets of the other party. No certificates of independent advice were given and the agreement does not contain any release of the right to make a claim under the Act. On 17 August 1996 the deceased and the plaintiff, Emilia, were married and they resided at Bay Road, Waverton. Early in 1997 the plaintiff, Emilia Boniadian, sold her coffee shop at Woolloomooloo and commenced to work in the deceased’s dry cleaning business.

13 Diana and her son apparently returned to Australia in 1993. In 1996 Diana was diagnosed with breast cancer and underwent major surgery. By 1997 she was living in Housing Commission accommodation having been made bankrupt over a failed business venture.

14 The deceased had owned land at Wamberal which he subdivided into two parcels of land in 1998. On doing this a joint tenancy was created in respect of Lot 11 and on that lot a home was built during 1997 and 1998. The address of the matrimonial home was 7 Carbeen Street, Wamberal and the construction cost was approximately $350,000.00 which was secured by a mortgage with the National Australia Bank on the Bay Road, Waverton property.

15 Thereafter various “holiday cabins” were built on Lot 10 without appropriate council approval.

16 In December 1998 the deceased and his wife moved into the home at Wamberal and the following year they commenced to build two townhouses at 85 Bay Road, Waverton with funds secured by a mortgage on the Wamberal property.

17 Between April and May 2000 the deceased and his wife travelled overseas. On their return to Australia there was a break up in their relationship which lasted for a week or two. The deceased persuaded his wife to return to him and they lived together until January 2003 when there was a further separation.

18 In respect of this separation it is plain that the plaintiff, Emilia, left and travelled to Queensland where she obtained work. During this period the deceased arranged to sever the joint tenancy of the matrimonial home and there is a question of whether the plaintiff, Emilia was given notice of this application. There were various negotiations between the deceased and the plaintiff, Emilia, about a property settlement and these negotiations continued until early May 2003 when the deceased was diagnosed with pancreatic cancer.

19 On 24 May 2003 the plaintiff, Emilia, returned from Queensland to Wamberal to look after the deceased during his chemotherapy. He was readmitted to the Mater Hospital on 28 May 2003 and died in hospital on 11 June 2003.

20 Probate was granted on 7 August 2003 and these proceedings were commenced within time.

21 In November 2003 the plaintiff, Emilia, resumed occupation of the Wamberal home. Her son and his partner moved in with her in December 2003.

Assets in the estate

22 The deceased left a gross estate valued at $3,334,877.00. This included a number of properties at Waverton, Artarmon and Wamberal as well as his half interest in the matrimonial home, 7 Carbeen Street, Wamberal. The half interest is valued at $460,000.00.

23 The deceased left a number of liabilities the secured liabilities amounting to $985,127.04 and his unsecured liabilities amounting to $461,653.04. The amount of the mortgage secured on the property at 7 Carbeen Street, Wamberal is $353,800.00. After allowing for liabilities the net estate is $1,888,97.00. By the time of the hearing the property at 46 Tumbi Road had been sold for $750,000.00 and the proceeds were expected in a few days. There was a dispute about the value of the Artarmon unit which was about to be put on the market. Valuations of $330,000.00 as at 3 April 2004 and $340,000.00 as at November 2003 are in evidence. There was no cross-examination of the valuers and accordingly I will adopt the latest valuation of $330,000.00. After allowing for the latest estimate of liabilities, apart from increased land tax, the estate had a net value at the date of hearing of $1,858,363.00. This takes account of only one half of the loan secured on 7 Carbeen Street, Wamberal. After the hearing the parties drew to my attention an additional liability for land tax of $35,294.10. This makes the net estate $1,823,068.90.

24 The parties in these proceedings have incurred the following costs.

25 Defendant’s costs in both proceedings are estimated at $81,500.00.

26 The plaintiff’s costs in matter 5183 of 2003 are estimated at $94,741.00 on a four-day basis.

27 The plaintiff’s costs in matter 6243 of 2003 are estimated at $72,282.00 on a four-day basis.

28 The total of these estimates is $248,524.00 and they reduce the net estate to $1,574,544.90.

29 Included in this net value of the estate is the deceased’s one half share in 7 Carbeen Street, Wamberal in the amount of $460,000.00. Before moving on it is necessary to determine whether or not that asset still remains in the estate. In the amended summons filed by the plaintiff in 5183 of 2003 on 1 April 2004 there were claims for declarations that the transfer severing the joint tenancy be declared void and that the defendant hold the deceased’s one half share upon trust for the plaintiff, Emilia.

30 The application to sever the joint tenancy was made as a result of a transfer by the deceased to himself dated 8 April 2003.

31 Section 97 of the Real Property Act 1900 (NSW) is in the following terms:

“97 Severance of joint tenancy by unilateral action
(1) Registration of a transfer by a joint tenant of the joint tenant’s interest in the land that is the subject of a joint tenancy to himself or herself severs the joint tenancy.
(2) If a joint tenancy is proposed to be severed by unilateral action by one joint tenant, the Registrar-General may require the person who proposes to sever the joint tenancy to provide the Registrar-General, before recording the instrument that severs the joint tenancy, with:

(a) the names and addresses of the joint tenants or, if the addresses are unknown, evidence of the efforts made by the person to locate the addresses of the joint tenants, and
(b) a statement that the person is not aware of any limitation or restriction on his or her capacity or entitlement to sever the joint tenancy (arising, for example, from the capacity in which the person holds an estate or interest in the land concerned or from a private agreement).
(3) The Registrar-General may require the person who proposes to sever a joint tenancy to provide additional information concerning:

(a) other persons who may be affected by the severance of the joint tenancy, and
(b) any limitation or restriction on the capacity or entitlement of the person to sever the joint tenancy, and
(c) any other matter that the Registrar-General considers appropriate.
(4) The Registrar-General may require any information provided for the purposes of this section to be provided by statutory declaration.
(5) The Registrar-General must give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to all joint tenants in the joint tenancy (other than any joint tenant who executed the dealing, or on whose behalf the dealing was executed). Section 12A (2) and (3) applies to and with respect to a notice given under this section.
(6) Despite subsection (5), the Registrar-General is not required to give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to a joint tenant in any of the following circumstances:

(a) if the proposed severance is to arise from the recording of a court order made in proceedings to which the joint tenant is a party,
(b) if the proposed severance is to arise from the registration of a transfer pursuant to a writ in respect of an interest of any of the joint tenants,
(c) if the dealing concerned is witnessed by the joint tenant and the dealing indicates that the joint tenancy is to be severed,
(d) if the dealing is accompanied by a written acknowledgment by the joint tenant that he or she has received legal advice as to the effects of the severance of the joint tenancy,
(e) if the proposed severance is to arise out of registration following an application under section 90.”

32 Appropriate notice was given to the plaintiff, Emilia, by the Registrar General but it was addressed to the plaintiff at “PO Box 258, Ashfield, NSW 180”. This was not her address. Indeed it was the post office box of her former solicitor. Accordingly, there was no service within the meaning of s 170 of the Conveyancing Act 1970 and, as I have pointed out before in Diemasters Pty Ltd & Ors v Meadowcorp Pty Ltd 16 July 2003, service on a plaintiff’s solicitor, in the absence of any other authority, is not good service. See also Singer v Trustee of the Property of Munro & Anor [1981] 3 All ER 215 at 218.

33 Although it is clear that the plaintiff did not receive the notice there is a dispute in the evidence as to whether her former solicitor, Mr Stichter, who in fact received the notice, gave notice to the plaintiff of service of that notice. The solicitor swears that he did tell the plaintiff of the notice in a conversation on 1 May 2003 whereas she denies the conversation and refers instead to a conversation which she had with a clerk employed by her solicitor which did not refer to the notice.

34 The resolution of this dispute is not necessary because all it goes to is whether or not there may have been some basis for the plaintiff taking steps to obtain an injunction prior to the death of the deceased in order to restrain the severance of the joint tenancy.

35 That question is no longer relevant as the deceased has died and the question is whether in fact the severance took effect. There is no doubt that it was possible for the deceased to sever the joint tenancy by transferring his share to himself. See Williams v Hensman (1861) 1 John & H 546; 70 ER 862 at 867 and Corin v Patton (1990) 169 CLR 540; 64 ALJR 256. The consent of the other party is not necessary to such a severance. No doubt if there was an agreement between two joint tenants not to sever the joint tenancy that could lead to a different result. An attempt such as the one that the deceased made here might have been restrained by injunction if such an agreement could be proved and if the severance was done in breach of the agreement. It may be that a trust would then arise in respect of the interest.

36 The only evidence which it was suggested might possibly amount to an agreement was that contained in paragraphs 4 and 5 of the plaintiff, Emilia’s affidavit of 24 February 2004. Those paragraphs are as follows:

“He said to me ‘If I die, automatically it will be your house. If you die first it will be mine. No one else will be able to get it.’ I then entered into the mortgage with my husband and Westpac secured over the home.
He also said to me ‘We will use the Westpac money to build the town houses at 85 Bay Road and these will be an investment for our life. You will not need to work.’”

37 A fair consideration of this conversation indicates that the deceased was saying nothing more than describing the effect of a joint tenancy. There is nothing in this conversation in which the deceased agreed not to take action to sever the joint tenancy. In these circumstances it seems to me that there is no basis for suggesting that the severance was void or that the property is held upon trust for the plaintiff, Emilia.

Eligibility of plaintiffs

38 The plaintiff, Emilia, is the widow of the deceased and is an eligible person.

39 The plaintiff, Diana, is the stepdaughter of the deceased and accordingly is an eligible person if she was a member of the household of which the deceased was a member and at some time was dependent in part upon the deceased. There is no doubt that between 1963 and 1971 the plaintiff, Diana, was a member of the deceased’s household. Given her age she clearly was dependant upon the deceased. There were a number of other periods disclosed in the chronology of the family history set out above during which the plaintiff, Diana, was a member of the household. In the circumstances I am satisfied that the plaintiff, Diana, is an eligible person.

40 Under s 9(1) of the Family Provision Act it is necessary that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

41 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

42 These principles have been applied at first instance for many years. In recent times further attention has been paid to this matter in the Court of Appeal in the case of Brown v Faggoter, an unreported decision given on 14 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success, gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

43 Having regard to the long periods in which the plaintiff, Diana, shared a household with the deceased and the relationship between them, it is clear that up until the sad events in this case, which occurred after 1986, there was a close familial relationship between the plaintiff, Diana, and her stepfather. He treated her as a child and when she needed assistance at various times in her somewhat troubled life that was made available to her by the deceased and his wife.

44 It was submitted that I should have regard to the conduct of the plaintiff, Diana, towards the deceased and his wife to see whether or not there was conduct disentitling when considering the matter under s 9(1) of the Act. Having regard to the fact that the section requires consideration of whether the plaintiff would be regarded as a natural object of testamentary recognition. This is probably appropriate.

45 It is clear from the evidence that the deceased’s wife had a very unhappy life and she was subject to treatment from Dr Dorothy Kral, a psychiatrist, from 1986 to her death on 2 December 1991. Exhibit 5 before me is Dr Kral’s notes of all the interviews with the deceased and his wife. The deceased’s wife was diagnosed with depression and an overview of the situation of the deceased’s wife in October 1991, two months before she died, appears in the summary of the family therapy consultation on 2 October 1991 in Exhibit 5. That discloses at least twelve suicide attempts and significant issues which were part of the problem. These issues included that she herself was raped by a policeman when she was aged seven and there had been an exacerbation of distress since her forty year old daughter told her mother in 1986 that her stepfather “touched” her when aged eleven.

46 The plaintiff’s evidence as to how the discussions between herself and her mother came about is described in paragraphs 36 and 37 of her affidavit in these terms:

“After her discharge from hospital my mother continued to complain to me about her life. On another occasion she said words to me to the effect: ‘When I was about 8 or 9 I was raped by a man. Since then I have had nightmares. When I wake up I have unbearable despair.’ I said words to the effect: ‘Something like that happened to me. It was not as bad as rape but I have forgiven the person.’ I did not disclose the man’s identity.
After that conversation my mother often asked me to reveal the man’s identity. On one occasion she said words to the effect: ‘I know that it was Boniad. I have always suspected it so please tell me. I have to know for sure. You are not doing me a favour by not telling me.’ I then said words to the following effect: ‘Yes but please don’t tell him. When that happened he was not even your husband so there is no need for you to feel guilty. You will not achieve anything by telling him and you will only make the matter worse.’”

47 I have no doubt that this occurred between the plaintiff and her mother and is reflected in the psychiatrist’s notes reporting on the mother’s conversations with her psychiatrist. The actual incident was referred to by the plaintiff, Diana, in paragraph 10 of her affidavit. She refers to her then uncle, now the deceased, starting to touch her in the vaginal area. Apparently this happened once a fortnight for a period of two to three months. According to the plaintiff she did not tell this to her mother until it was forced out of her in 1986. She only ever discussed it with one other person, namely, a girlfriend a few years after the event. She never raised her concerns with the deceased and in fact after 1986 did not confront him with them. It was not suggested in cross-examination of the plaintiff that these incidents did not occur and there is no reason, other than matters such as the passage of time and the failure to disclose the incident, to suggest that I should do otherwise than accept the plaintiff’s evidence on the matter. I will consider the matter on the basis that the incident did occur. If the incident had not occurred then the seriousness of the conduct to which I will later refer is immensely greater.

48 After the discussion with her mother when she eventually told her the identity of the person involved, the plaintiff returned to Los Angeles in July 1986 with her son. She remained there living in difficult circumstances and still had contact with her mother despite a break of about twelve months.

49 It is clear that during these years the plaintiff, Diana, was having a difficult time. She had to let her son stay with his father for a while and she lived in cheap accommodation in a theological college in order to survive. She gave evidence that during the period up until she returned to Australia shortly after the death of her mother, she would ask the deceased and her mother for funds to support herself. Every few months they would send her $3,000.00, $4,000.00 or $5,000.00 at a time.

50 I turn now to the evidence in respect of what was described during the trial as a blackmail letter. There is no doubt that a letter was sent as the plaintiff Diana concedes that this was so.

51 Evidence was given by the defendant and her sister, Yvette as to the circumstances in which the letter arrived in Australia from Diana in the United States. Initially Diana spoke to Yvette and asked her to take down by dictation a note to her mother in which she said that she wanted you, meaning her mother, to transfer $20,000.00 to her bank account and unless that happened she proposed to tell her relatives in the United States that Bob had molested her as a teenager. There were discussions between Katherine and Yvette as a result of which Katherine, who was living at home at the time, managed to intercept the letter when it arrived from the United States. Katherine opened the letter and read it and Yvette came around and read it as well. Katherine’s recollection of the letter (which has since been lost) is in these terms:

“If you do not transfer to me (a sum of money which I cannot recall, but present impression is that it was $50,000) I will tell all our family here in the States about Bob molesting me when I was young.”

52 Yvette’s version is somewhat similar although I find the evidence of her recollection not as satisfactory as that of Katherine’s recollection. After considering the matter the two girls decided they would have to give the letter to their mother which they did.

53 The plaintiff’s version of what she said in the letter was as follows:-

A. Okay. I basically said that I don't want to hear, the talk, of this incident any more. I am just fed up with hearing it. I don't want to explain any more. I don't want to hear what Bob is telling her about me. I don't want this any more and if she doesn't stop I am going to write down everything and then I am going to photocopy them and then I am going to send them to their friends and let them decide who is telling the truth and who is lying and them know. In the end I said something like just to show that I am serious I want you to send me, I will give you four weeks or a month to send me $30,000 and I then I just wrote my name. That is it.

54 I am prepared to accept Katherine’s version of the terms of the letter to which she deposes. Katherine was an impressive witness who tried to be accurate in giving her evidence. In any event Diana’s version is similar in its conclusion.

55 Thereafter the plaintiff was cross-examined about her reasons for demanding the money in these terms:

Q. What was the purpose of demanding the money?

A. The purpose was that I wanted her not to talk to me
about the incident any more and I knew that I have already told her many times that I don't want to hear it. Its ruining my life by constantly hearing about that instead of getting any kind of compassion or understanding. I a just being accused. It is like that I am just being victimised again and again. I have said it many times, "Mum don't talk about it any more" but she would and I thought if I mention money I thought. I don't know I just thought I have to do something to get her attention that I am serious and I don't want to hear it any more and that is what came to my mind. My intention was not to bribe, get money from my Mum. That was not any intention. My intention was to for her to take me seriously so she wouldn't talk about it any more.


Q. I don't quite follow. That she would take you seriously but not talk about it any more?

A. She would take me seriously that I mean I don't want to hear about this any more.

Q. Well, you could have asked her not to discuss that matter with you any more couldn't you?

A. From 1986 I have been asking her not to discuss it any more and this was probably beginning of 1990. For three years I was asking her not to discuss it any more and she was discussing it again and again and again. I didn't know how other way I could have told her I don't want to hear it any more.

Q. This is the same mother, who in your oral evidence earlier this afternoon had been sending you $3,000 and 4,000?

A. That's correct.

Q. And 5 thousand?

A. That's correct.

Q. To assist you exist?

A. That's right.

Q. Whilst living in the United States?
A. Yes but, at the same time she was destroying me by all this talk so she was helping me physically but destroying me emotionally so what I am supposed to do.

56 The plaintiff’s absence of a relationship with the deceased after 1990 is not in doubt and, indeed, on one occasion at a family wedding, the plaintiff and her son were seated at a table when the deceased arrived at the reception and was directed to sit at the same table. He refused and asked if could be provided with another place so he did not have to sit with his stepdaughter.

57 During 1991 there was a resumption of discussions between the plaintiff, Diana, and her mother. Diana and her son planned to return to Australia at the end of 1991. However, there is no doubt from a review of the psychiatrist’s notes which refer to the blackmail letter that the letter had a substantial effect on the plaintiff’s mother. On 2 December 1991 shortly before Diana was due to arrive in Australia her mother left home and took her own life at the property at Wamberal.

58 Diana brought forward her arrival so she could be at her mother’s funeral on 11 December 1991 where the deceased refused to speak to her. According to the defendant the deceased made his attitude quite plain in these terms:

“I cannot forgive Deanna for what she did to your mother and me. That letter she sent to your mother killed her. She was trying to get money from your mother by blackmailing her and by attacking her mother she was also attacking me. She had no right to do this. Your mother was sick and defenceless. Deanna has no conscience.”

59 The deceased held those views until he died. I accept the evidence of the defendant whom, as I have said, I found to be an impressive witness who tried to be accurate.

60 Of importance is the gravity of what had occurred some 27 years ago. There was an interesting discussion between the defendant and the plaintiff shortly after the funeral in these terms:

“I spoke to Deanna on the day of, but after the funeral, and said to her words to the effect:

‘I know you tried to blackmail our mother. But can you tell me for my own peace of mind, that there is no truth in what you said about my father.’

Deanna said
‘What I said was true, but it was no big deal.’

She did not go into detail about the alleged molestation.
I then asked her:

‘If it was ‘no big deal’, why did you resort to blackmailing Mum and making is such a big deal?’

She did not respond.”

61 In her affidavit in reply the plaintiff said she did not admit the conversation. In cross-examination she denied she had any such conversation with the defendant after the funeral although she admits she did have a conversation with the defendant on the day she arrived back in Australia. The defendant then agreed that the conversation took place on the day of Diana’s arrived in Australia. Having regard to the way they gave their evidence and having observed them I prefer the defendant and accept her evidence of the conversation.

62 The views expressed by the plaintiff that what had occurred was “no big deal” also finds reflection in her comments about her discussions with her mother which I have referred to above where she indicates that she had forgiven the deceased. In cross-examination the following exchange occurred:

Q. If we accept for the purposes of this question, that there was an interference of you by Bob when you were 9 or 10, that incident had no effect on your relationship with him up 'til 1986 did it?

A. It had an effect but it was - I did not - I kept it inside. I did not show my true feelings. I did not – I tried to accept him as my stepfather or my uncle and I tried to respect him as the head of our household and I kept the true feeling inside. So I don't know if that answers your question.

Q. Let me suggest to you that from the time of your mother's marriage to Bob, up to the time of your marriage in 1971, Bob accepted you as a member of the family, didn't he?

A. Yes.

Q. You looked upon him as a father figure, didn't you?

A. Yes.

Q. Throughout the period up 'til 1986, it is accurate to say that you regarded him as your father and as the grandfather of your child, didn't you?

A. Yes.

Q. And he accepted you as a child of his?

A. Yes.

Q. He treated you as a child of his?

A. Well I guess, yes as a member of a family. I couldn't be his child because the difference of the age was not possible to be his child, but yeah, he treated me like a member of the family and I did the same, member of a family. Uncle more than a stepfather.

Q. No doubt your mother and Bob were quite generous in their treatment of you in terms of the provision of money and accommodation whenever it was appropriate?

A. Well I think they were as generous as any family would be towards their children who are in need. It was - yes, I was grateful and they were generous, but I think that's what families are all about.”

63 Leaving aside the reasons why Diana might have sent the letter in the terms in which she did, it is important to note the effect it would have on her mother and the deceased to the knowledge of Diana. Diana was well aware of the difficulties which her mother had and she could well have and did in fact anticipate the difficulty that would occur between her mother and the deceased after she had disclosed the identity of the deceased in 1986. It was also apparent to her that the matter played on the mind of her mother. It is beyond question that when the letter of the nature, which even the plaintiff concedes she sent, was received by her mother that it would have a serious effect on the relationship between her mother and the deceased.

64 The plaintiff may well be able to justify the initial disclosure in 1986 and suggest that it was not her responsibility, but basically her mother’s responsibility as she had forced the disclosure out of her. Similar considerations do not apply to the sending of the blackmail letter which was done, in my view, in a premeditated way.

65 The fact of the matter is that the plaintiff had been living in strained circumstances in America and she continually called upon her mother and stepfather to support her.

66 I do not accept the plaintiff’s attempt to justify her actions in sending the letter. In my view, the sending of the letter was a deliberate attempt to blackmail her mother and the deceased in order to obtain funds. It is more particularly offensive in that the actions, which were to be exposed, were something, which the plaintiff herself did not regard as any “big deal”, and, indeed, on her own evidence, it was something which she had forgiven and allowed to go into the past.

67 Any such an attempt must have had a disastrous effect on the relationship between her mother and the deceased. It is clear that the deceased’s attitude was made plain immediately after his wife’s funeral.

68 In my view, this conduct is conduct disentitling the plaintiff to any form of relief under the Act. Accordingly, I find that there are no factors warranting the making of the application. In case the matter goes further I will make some brief findings about Diana’s personal situation. She is 55 years of age, single and has one son who resides with her although he is in employment and self-supported. She lives in a Housing Commission flat at Hunters Hill and has no assets apart from her clothes and personal possessions. She earns $299.00 per week as a dry cleaner assistant working 20 hours a week.

69 The plaintiff was diagnosed with breast cancer in September 1996 and had a mastectomy in February 1997. As well as the mastectomy, the plaintiff also received chemotherapy and suffered all its side effects. She had three operations for reconstruction of the breast in 1999. She has been under numerous stresses and has suffered from depression for a very long time. She has been referred to different psychiatrists and psychologists at different times for different issues. The depression continues with its roots “related to her poor family life with her mother and step-father”.

70 I turn to consider the remaining application in the case.

71 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 set out the two stage approach that a Court must take. At pages 209-210 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation of the plaintiff, Emilia Boniadian

72 Emilia is aged 54 years. She is single and has no dependants. She resides at present, as she is entitled to do, at the home at Wamberal. Her assets consist of her half interest in 7 Carbeen Road, Wamberal valued at $460,000.00 and an investment unit at 1/17 Doodson Avenue, Lidcombe having a value of $245,000.00. There is a debt of $170,000.00 on the Lidcombe property and her half share of the debt on 7 Carbeen Road is $176,900.00.

73 Her income indicates some wages from the sandwich shop, Centrelink payments and rent from her Lidcombe property. This totals $1,009.00 per fortnight. Her outgoings per fortnight are $1,518.00 and this includes repayments on her NAB mortgage on the Lidcombe property. That property is substantially negatively geared. There is evidence that her son and his partner live with the plaintiff at Carbeen Road. They are both in satisfactory employment her son having a gross salary of $42,000.00 and his partner a gross salary of $52,000.00 per annum. They have no children and they intend to stay at Carbeen Road and contribute $200.00 per week towards the costs of maintaining the property.

74 It is necessary to look at the relationship between the plaintiff and the deceased. The relationship was for a period of nearly seven years and it is clear on the evidence that there was a parting in February 2003. This was the end of the relationship at that stage. This is plain from the circumstance that the parties commenced corresponding through lawyers to achieve an appropriate property settlement. There was alleged by the plaintiff to be a reconciliation a few days before the death of the deceased and in the circumstances although this may have been motivated by the love and affection that the plaintiff had for the deceased, it is not of significance in terms of the matter overall.

75 What is important in this matter is the extent of the contributions that the plaintiff may have made to the assets of the estate either by way of direct contribution or work in the business of the deceased. In 2000 the evidence indicates that the plaintiff gave $20,000.00 after the sale of her unit which she had in Czechoslovakia. Part of that sum, namely, $4,000.00 or $5,000.00 was spent on a joint holiday and the balance was given to the deceased to pay builders working on the improvements to the Bay Road townhouses. Shortly after the marriage the plaintiff gave up the coffee shop and started to work with the deceased in his dry cleaning business at Waverton. She described the work generally six days a week and usually twelve hours a day. Some days she would press up to 300 shirts in hot and uncomfortable conditions. She did not receive a wage from the business but the deceased gave her housekeeping money of between $250.00 and $300.00 per week to do the shopping for the two of them.

76 The plaintiff was also involved from time to time in some of the projects of the deceased. For instance she was involved in fitting out the holiday cottages at Tumbi Road, Wamberal as well as selecting furnishings and fitting for their matrimonial home. She did painting work on the cottages. The various developments of the Waverton premises required the plaintiff to give a mortgage over her half interest in 7 Carbeen Road, Wamberal which was given to her by the deceased.

77 It can be seen there was a small provision of funds and some substantial work in the deceased’s business over a period of some seven years during the relationship.

78 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. In the present case the plaintiff says that she would like to own the Carbeen Road, Wamberal property unencumbered and have a further sum to cover the contingencies in life. She does not seek a sum for her ongoing maintenance.

79 The defendant does not oppose the transfer of the property to the plaintiff, Emilia, but she does resist the further payments either by way of reduction of the mortgage or provision of a sum for contingencies. When considering the matter it is necessary to see the situation of others having a claim on the bounty of the deceased. In the present case it is the defendant who received the residue of the estate.

The situation in life of Katherine Boniadian

80 The defendant is 40 years of age and is married to Serge Galitsky. They have two children aged 8 years and 5 years and she is not working as she is a homemaker at present. Katherine has qualifications as a solicitor with degrees from Sydney University and the University of Technology. Her husband is a part time barrister and lecturer in law. Katherine does some research work from time to time for her husband to assist in his practice. Between them they own a property at 62 Bellevue Street, Cammeray valued at $1.3 million which is subject to a bank loan of $266,000.00. They own a motor vehicle worth about $20,000.00, personal items and furniture. Both of them have debts with Katherine owing some $7,000.00 and her husband $26,474.00. Her husband has superannuation which will give him a pension when he retires. If he retires at 60 years he will have a benefit of $1,447.00 per fortnight.

81 It is clear that there was a good relationship between the deceased and Katherine.

82 The evidence of the income of Katherine’s husband, Serge Galitsky is that he receives a salary of $68,000.00 per annum from the university plus superannuation contributions. There was no evidence of his fees received as a barrister. In discussions Katherine had with the deceased prior to his death the deceased indicated that he wanted one of the units at Waverton to be given to his son, Heros. The unit cannot be transferred as it cannot be subdivided or strata titled. Once the present proceedings are concluded and she knows where she stands financially, Katherine is certainly willing to honour the intent of this arrangement. She proposes to make payments to her brother, Heros and she has in mind a payment to her sister, Yvette, of a sum of $100,000.00.

83 The net estate is likely to be in the order of $1,574,544.90. Included in that figure is the half share of Wamberal in the sum of $460,000.00 and one half of the mortgage is taken into account. Having regard to the financial situation of the defendant there is really no competition between her and the plaintiff, Emelia. It is likely that the defendant will be able to make ex gratia payments to her sister and her brother.

84 Widows’ claims are frequently the subject of applications in this Court. The Court of Appeal in Golosky v Golosky (Unreported, NSWCA, 5 October 1993) has referred to formulations of this standard to be expected in respect of a widow in terms which refer to the decision of Powell J in Luciano v Rosenblum (1985) 2 NSWLR 65 and Elliott v Elliott, which was approved by the NSW Court of Appeal on 24 April 1986. There His Honour said:

"Where the marriage of a deceased and his widow has been long and harmonious, where the widow has loyally supported her husband and assisted him to build up and maintain his estate, the duty which a deceased owes to his widow can be no less than to the extent to which his assets permit him to achieve that result; first to ensure that his widow be secure in her home for the rest of her life and that if either the need arises or the whim strikes her she have the capacity to change her home; secondly that she have available to her an income sufficient to enable her to live in a reasonable degree of comfort and free from any financial worry; and, third, that she have available to her a fund to which she might have resort in order to provide herself with such modest luxuries as she might choose and which would provide her with a hedge against any unforeseen contingency or disaster that life might bring".

85 There are a number of things which immediately separate the present case from what was being referred to by His Honour. The relationship lasted only seven years and the deceased and the plaintiff had no children. It was a marriage late in life for both of them and unfortunately it ended in a separation.

86 As part of his relationship, the deceased was prepared to transfer half of the Wamberal property to the plaintiff. This was done at a time before it became encumbered with a mortgage to secure further advances to enable the next project, namely, the renovation to the properties at Waverton.

87 During those seven years the plaintiff worked hard in the business of the deceased for no reward other than their mutual satisfaction and further advantage. In the circumstances I think that it is appropriate that the plaintiff, Emelia, receive one half of the property at Wamberal, a discharge of the mortgage over that property and a sum of $25,000.00 to help her to re-establish herself.

88 Accordingly, the orders I make are as follows:-

In matter 6243/2003 I order that the proceedings be dismissed and, subject to submissions, that the plaintiff, Diana, pay the defendant’s costs.

In matter 5183/2003 I order:

1. The plaintiff, Emilia, receive in lieu of the provisions made for her in the will of the deceased:

(a) a devise of the deceased’s interest in 7 Carbeen Street, Wamberal.

(b) a legacy of $25,000.00

(c) provision out of the estate of the deceased by way of a full discharge from the estate of the deceased of the mortgage registered on the property at 7 Carbeen Street, Wamberal.
(d) subject to submissions I order that the plaintiff, Emilia’s, costs on a party and party basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
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Last Modified: 06/21/2004