Bukovac v Baron

CITATION: Bukovac v Baron [2001] NSWSC 62

FILE NUMBER(S): SC 3169/00

HEARING DATE(S): 1, 4 - 6 December 2000

JUDGMENT DATE:
20 February 2001

PARTIES :

Marija Bukovac (Plaintiff)
Carolina Dragica Baron (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : V. Stefano (Plaintiff)
J. R. Wilson (Defendant)

SOLICITORS: Leigh File & Associates, Solicitors (Plaintiff)
John B Gray, Solicitor (Defendant)

CATCHWORDS: Family Provision - Claim by widow - Marriage obtained for almost 40 years - Sole asset in estate is matrimonial home of Plaintiff and testator - Will gives entire estate to ex-nuptial child of testator - Without an order for provision Plaintiff will be left homeless and virtually destitute - Contributions made by Plaintiff to acquisition and improvement of matrimonial home - No competing claims - Conduct disentitling - Whether established - Effect upon Plaintiff's claim of any such conduct.

LEGISLATION CITED: Family Provision Act 1982
District Court Act 1973

DECISION: See paragraph 57

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

2 The proceedings were originally instituted in the District Court of New South Wales, but by order of the Supreme Court made on 20 June 2000 they were transferred to the Supreme Court pursuant to section 145 of the District Court Act 1973.

3 By summons filed on 14 September 1999 the Plaintiff, Marija Bukovac, claims an order for provision for her maintenance out of the estate and/or notional estate of her late husband, Franco Bukovac (to whom I shall refer as “the Deceased”). The Deceased (who had been born at Zagreb in Croatia on 2 November 1932) died, aged 65, on 22 October 1998.

4 The Deceased left a will dated 29 August 1997, probate whereof was on 20 August 1999 granted to his daughter Carolina Dragica Baron, the executor named in such will (who is the Defendant to the present proceedings). By the terms of that will the Deceased left the entirety of his estate to the Defendant.

5 The Plaintiff and the Deceased (who was born on 8 March 1933 in Croatia, and is now aged 67) married in April 1959 in a civil ceremony in Croatia. Of that marriage was born one child, Verena Bukovac, on 26 July 1959. Subsequently the Plaintiff and the Deceased underwent a religious ceremony of marriage in Germany on 24 August 1964.

6 Before his marriage to the Plaintiff there had been born to the Deceased a daughter Carolina Dragica Baron (the present Defendant) on 7 February 1956, that child having been born of a relationship between the Deceased and a lady named Anna Baron, in Croatia. The Defendant is presently aged forty-five.

7 The Deceased, the Plaintiff and their daughter Verena migrated to Australia from Germany in December 1967. Initially they lived in Newcastle, where the Deceased was employed as a steel worker by BHP. They subsequently removed to Sydney in December 1968. The Deceased worked for various employers from then until he finally relinquished employment in 1986.

8 In 1969 there was purchased in the…

CaseChat Overview and Summary

Bukovac v Baron involved a widow's claim against the estate of her late husband, seeking provision under the Family Provision Act. The couple had been married for almost 40 years, and the only asset in the deceased's estate was the matrimonial home. The deceased had left his estate to his ex-nuptial child, which would leave the plaintiff homeless and destitute. The plaintiff argued that she had contributed significantly to the acquisition and improvement of the matrimonial home, and there were no competing claims against the estate. The court had to determine whether the plaintiff's conduct during the marriage had any disentitling effect on her claim for provision.

The central legal issue was whether the plaintiff's conduct during the marriage could be considered disentitling in the context of her claim for provision. The court considered the contributions made by the plaintiff to the matrimonial home, the length of the marriage, and the absence of competing claims against the estate. The court had to weigh the plaintiff's contributions against any conduct that might disentitle her to a claim under the Act. The court also had to determine the effect of any disentitling conduct on the plaintiff's claim.

The court found that the plaintiff's contributions to the acquisition and maintenance of the matrimonial home were significant, and the marriage had lasted for almost 40 years. However, the court also found that the plaintiff's conduct during the marriage had a disentitling effect on her claim. The court found that the plaintiff had engaged in conduct that was inconsistent with the maintenance of the deceased, which disentitled her to a claim for provision. The court held that the disentitling conduct had a significant impact on the plaintiff's claim, and the court was not satisfied that the plaintiff had made a proper adjustment to her conduct. The court concluded that the plaintiff's claim for provision was unsuccessful.

The court made no order for provision to the plaintiff, leaving her homeless and virtually destitute. The court held that the disentitling conduct of the plaintiff had a significant impact on her claim, and the court was not satisfied that the plaintiff had made a proper adjustment to her conduct. The court found that the plaintiff's conduct during the marriage had a disentitling effect on her claim, and the court was not satisfied that the plaintiff had made a proper adjustment to her conduct. The court concluded that the plaintiff's claim for provision was unsuccessful, and no order was made in favour of the plaintiff.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Bukovac v Baron [2001] NSWSC 62
FILE NUMBER(S):	SC 3169/00
HEARING DATE(S):	1, 4 - 6 December 2000
JUDGMENT DATE:	20 February 2001
PARTIES :	Marija Bukovac (Plaintiff) Carolina Dragica Baron (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	V. Stefano (Plaintiff) J. R. Wilson (Defendant)
SOLICITORS:	Leigh File & Associates, Solicitors (Plaintiff) John B Gray, Solicitor (Defendant)
CATCHWORDS:	Family Provision - Claim by widow - Marriage obtained for almost 40 years - Sole asset in estate is matrimonial home of Plaintiff and testator - Will gives entire estate to ex-nuptial child of testator - Without an order for provision Plaintiff will be left homeless and virtually destitute - Contributions made by Plaintiff to acquisition and improvement of matrimonial home - No competing claims - Conduct disentitling - Whether established - Effect upon Plaintiff's claim of any such conduct.
LEGISLATION CITED:	Family Provision Act 1982 District Court Act 1973
DECISION:	See paragraph 57