Doshen v Pedisich

Case [2013] NSWSC 1507


Supreme Court


New South Wales

Medium Neutral Citation: Doshen v Pedisich [2013] NSWSC 1507
Hearing dates:3 October 2013
Decision date: 17 October 2013
Jurisdiction:Equity Division
Before: Hallen J
Decision:

(i) Having found that the Plaintiff is an eligible person; being satisfied that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life; order that she receive out of the estate of the deceased, a lump sum of $75,000.

(ii) Order that the provision made for the Plaintiff be paid out of the residuary estate.

(iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

(iv) Order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

(v) Order that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the stepdaughter of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendant is the executrix to whom Probate granted - Dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - If both eligibility and factors warranting the making of the application established, whether to make a family provision order - If order for provision made, nature of order - Relationship of Plaintiff and the deceased
Legislation Cited: Civil Liability Act 2002
Family Law Act 1975
Family Provision Act 1982
Inheritance (Provision for Family and Dependents) Act 1975 (UK)
Powers of Attorney Act 2003
Probate and Administration Act 1898
Property (Relationships) Act 1984
Succession Act 1981 (Qld)
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Aafjes v Kearney (1976) 50 ALJR 454; (1976) 8 ALR 455
Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Benney v Jones (NSWSC, 13 February 1990, unreported)
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Brown v Faggoter [1998] NSWCA 44
Carega Properties SA (formerly Joram Developments Ltd) v Sharratt [1979] 2 All ER 1084; [1979] 1 WLR 928
Churchill v Roach [2002] EWHC 3230; [2003] WTLR 779
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976)

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Doshen v Pedisich [2013] NSWSC 1507
Case
[2013] NSWSC 1507
Decision Date

CaseChat Overview and Summary

In the case of Doshen v Pedisich, the plaintiff, Doshen, sought a family provision order out of the deceased's estate. The deceased, Doshen's stepmother, left a will which did not include Doshen. The defendant, Pedisich, is the executrix to whom probate was granted. The central issue before the court was whether Doshen, as a stepdaughter, was eligible to seek a family provision order under the Succession Act 2006. Additionally, the court had to determine if the factors presented by Doshen warranted the making of such an application. Should these issues be resolved in Doshen's favour, the court would then consider the nature of any provision order.

The court addressed the eligibility of Doshen under the relevant statute, considering the relationship between the deceased and the plaintiff. It was established that the deceased and Doshen had a relationship akin to that of parent and child, which is a requirement for eligibility under the Act. The court further examined the factors presented by Doshen to justify the application, including the nature of the relationship, the extent of the deceased's property, and the means and needs of the plaintiff. The court found that the relationship was sufficiently close and that the deceased's estate was substantial, thereby satisfying the criteria for a family provision order.

Upon finding that Doshen was eligible and that the factors warranted the making of an application, the court turned to the appropriate nature of the order. The court weighed the circumstances of the case, including the contributions Doshen had made to the deceased's welfare, and the financial position of the deceased at the time of death. The court concluded that an order should be made, providing Doshen with a reasonable provision from the estate. The court's final order was that the executrix should provide Doshen with a specific sum from the estate of the deceased.

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