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Caska v Caska

Caska v Caska

Case [1999] NSWSC 289 1 April 1999

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CITATION: CASKA v CASKA [1999] NSWSC 289

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): 1241/93; 2101/97

HEARING DATE(S): 22-26 February 1999
26 March 1999

JUDGMENT DATE:
1 April 1999

PARTIES :

JOHN PIUS CASKA & ANOR
v SARAH CASKA
MICHAEL FERDINAND CASKA
v
SARAH CASKA
ESTATE OF THE LATE ZDENKO JOSEF CASKA

JUDGMENT OF: Bryson J at 1

COUNSEL : PLAINTIFFS: 1241/93 MR G JOHNSTON
DEFENDANT: 1241/93 MR P STERNBERG
PLAINTIFF: 2101/97 N/A
DEFENDANT: 2101/97 MR P STERNBERG

SOLICITORS: PLAINTIFFS: 1241/93 STEELE & WALKER
DEFENDANT: 1241/93 BILLINGTON McLURE LEE
PLAINTIFF: 2101/97 IN PERSON - UNREPRESENTED
DEFENDANT: 2101/97 BILLINGTON McLURE LEE

CATCHWORDS: FAMILY PROVISION; testator reired medical practitioner died 1991 aged 72.; adult sons; (1)medical practitioner now aged 54 without capital after unsuccessful investments and earning about $200,000 p.a. and (2) unemployed former taxi driver now aged 47 living on social benefits who received $126,000 (out of residue $780,000) received no further provision; history of assistance earlier in life, severely deteriorated relationship with sons and long and happy second marriage; proceedings dismissed.

ACTS CITED: Family Provision Act 1982

CASES CITED: Singer v Berghouse (1994) 181 CLR 201.
Hunter v Hunter & Ors (1987) 8 NSWLR 573.

DECISION: SEE PARAGRAPH 34

1 HIS HONOUR : Zdenko Josef Caska late of Longueville New South Wales Retired Medical Practitioner died on 24 September 1991 aged 72 years. He was survived by his widow Mrs Sarah Caska the defendant, and by the four adult sons of his first marriage. The Testator’s first wife Mrs Anna Caska, whom he married in 1940, died on 7 August 1974. The Testator married the defendant on 9 October 1976.
2 The defendant obtained from this Court Probate dated 16 September 1992 of the Testator’s Will dated 30 June 1989 and Codicil dated 23 June 1991. Claims by two of his sons for orders under the Family Provision Act 1982 were heard together. The plaintiffs are the Testator’s eldest son Dr John Pius Caska who was born in Germany on 6 December 1944 and his youngest son Mr Michael Ferdinand Caska who was born in Australia on 20 September 1951.
3 The Testator’s two other sons Dr Peter Caska and Dr Paul Caska are twins born in Germany on 11 February 1946; they did not bring claims to hearing, although Dr Peter Caska at one time was named as a plaintiff; he withdrew his claim.
4 In considering an application for provision under the Family Provision Act 1982 and applying s 7 and subs 9 (2) of that Act the Court follows a process described in the judgment of Mason CJ Deane J and McHugh J in Singer v Berghouse (1994) 181 CLR 201 at 208-209:-
“It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination…

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 Caska v Caska

Details

AGLC: Caska v Caska [1999] NSWSC 289
Case: [1999] NSWSC 289
Decision Date: 1 April 1999

CaseChat Overview and Summary

In the case of Caska v Caska, the applicants were the sons of a deceased man, who sought relief under the Family Provision Act. The deceased, a retired medical practitioner, passed away in 1991 at the age of 72, leaving behind his two adult sons and his second wife. The son who was a medical practitioner, now aged 54, found himself without capital following unsuccessful investments and earned approximately $200,000 annually. The other son, previously a taxi driver and now unemployed at 47, lived on social benefits and received $126,000 from the estate's residue of $780,000, with no further provisions made for him. The applicants contended that they had been deprived of the reasonable provision for their maintenance, education, and advancement in life, citing a history of financial assistance and a severely deteriorated relationship with their father.

The court was required to determine whether the applicants were indeed deprived of reasonable provision for their maintenance, education, and advancement in life under the Family Provision Act. It was also necessary to consider the history of financial support from the deceased, the nature of the relationship between the father and sons, and the circumstances surrounding the deceased's second marriage. The court had to weigh these factors against the father's discretionary power in disposing of his estate and the statutory criteria for making an order under the Act.

The court found that while the deceased had provided financial assistance to the sons in the past, this did not necessarily imply a continuing obligation. The court recognised the deterioration in the relationship between the father and sons but also took into account the father's long and happy second marriage, which was not a factor in the father's testamentary decisions. Given these considerations, the court determined that the applicants were not deprived of reasonable provision. Therefore, the proceedings were dismissed.

Orders