Boniecki v Brown - [2006] NSWSC 306

CITATION: Boniecki v Brown [2006] NSWSC 306

HEARING DATE(S): 26 and 27 October 2005

JUDGMENT DATE :
20 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice McLaughlin at 1

DECISION: (1). I order that, in addition to the benefits given to him by the will of the late Jerzy Boniecki (also known as George Boniecki) (“the Deceased”), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 20 July 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898, and that the burden of such legacy, if not payable out of residue, be borne by that part of the estate of the Deceased which under the terms of the aforesaid will is given to Polcul Foundation Limited. (2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. (3). The exhibits may be returned.

CATCHWORDS: Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Absence of contact between Plaintiff and Deceased for most of Plaintiff's life. Deceased abdicated all responsibilities for Plaintiff from time when Plaintiff was aged about 8. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of other beneficiaries.

LEGISLATION CITED: Family Provision Act 1982
Wills, Probate and Administration Act 1898

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 79 ALJR 731

PARTIES: Zbigniew Krzystof Boniecki (Plaintiff)
Noel Mockett Brown (Defendant)

FILE NUMBER(S): SC 5316 of 2004

COUNSEL: Ms. J. Mundey (Plaintiff)
Mr. F. Donohoe (Defendant)

SOLICITORS: Michael Corrigan (Plaintiff)
Noel Brown & Associates (Defendant)

LOWER COURT DATE OF DECISION: 10/26/2005

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 20 April 2006

5316 of 2004 ZBIGNIEW KRZYSTOF BONIECKI –v- NOEL
MOCKETT BROWN

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 30 September 2004, Zbigniew Kryzstof Boniecki claims an order for provision for his maintenance, education and advancement out of the estate and notional estate of his father, Jerzy Boniecki (also known as George Boniecki) (to whom I shall refer as “the Deceased”).

3 The Deceased died on 8 September 2003, aged 74. He left a will dated 23 March 2003, probate whereof was on 19 March 2004 granted to Noel Mockett Brown, the executor named in such will (who is the Defendant to the present proceedings).

4 The Deceased, who was a native of Poland, was married twice. Of his first marriage, to Wanda Stefania Klycinska were born two children, being Jadwiga Anna (later known as Jagoda Anne) (now Mrs. Chapple), who was born in Poland on 18 December 1949, and who is presently aged 56, and the Plaintiff, who was born Ostroleka in Poland…

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 Boniecki v Brown

Details

AGLC: Boniecki v Brown [2006] NSWSC 306
Case: [2006] NSWSC 306
Decision Date: 20 April 2006

CaseChat Overview and Summary

In the case of Boniecki v Brown, the plaintiff, Boniecki, brought an application for an order under section 47 of the Family Provision Act 1969 (NSW) seeking an increase in the estate of the deceased, Brown. The central issue was whether Boniecki had been left without adequate provision for his proper maintenance given the absence of significant contact between him and Brown for most of his life. The deceased had abdicated all responsibilities towards Boniecki from when he was around eight years old. This lack of contact and support raised questions about the adequacy of the provision made for Boniecki under the deceased’s will.

The court had to determine whether the circumstances justified an order under section 47 of the Family Provision Act. Key considerations included the financial and material circumstances of Boniecki, the nature and extent of the deceased’s responsibility towards him, and the competing claims of other beneficiaries. The court also examined the extent to which the deceased had provided for Boniecki's needs and whether the provision made was reasonable in the context of the deceased's overall estate.

The court found that, despite the absence of contact, the deceased had provided for Boniecki by including him in the will, albeit to a lesser extent than other beneficiaries. The court considered the competing claims of other beneficiaries and assessed whether Boniecki had been left without adequate provision for his proper maintenance. It concluded that while the deceased's provision was not substantial, it was reasonable given the circumstances and the deceased's overall estate. Therefore, the application was dismissed.

The court ordered that the application be dismissed, with each party to bear their own costs.

Orders