Legal Research
Cases
Dudic v Jakovljevic

Dudic v Jakovljevic

Case [2014] NSWSC 169 5 March 2014

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Dudic v Jakovljevic [2014] NSWSC 169
Hearing dates: 18 February 2014
Decision date: 05 March 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
Direct the parties, within 14 days, to provide Short Minutes of Order, reflecting these reasons. Stand the matter over for 21 days.

Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 - The Defendant is the widow of the deceased - Deceased left no Will - No provision for the Plaintiff under the rules of intestacy - Very small estate - Whether adequate and proper provision not made for the Plaintiff and, if so, the nature and quantum of the provision to be made - Order for lump sum
Legislation Cited: Family Provision Act 1982 (NSW)
Practice Note SC Eq 7
Probate and Administration Act 1898 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Amendment (Family Provision) Act 2008 (NSW)
Succession Act 2006 (NSW)
Uniform Succession Laws: Intestacy [2007] NSWLRC 116
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, In re; Allardice v Allardice (1910) 29 NZLR 959
Allen (Dec'd), In re; Allen v Manchester [1922] NZLR 218
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Aubrey v Kain [2014] NSWSC 15
Bartlett v Coomber [2008] NSWCA 100
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bridges, Re Estate of (1975) 12 SASR 1
Buckland Deceased, Re [1966] VR 404
Bull, Re [2006] VSC 113
Butcher v Craig [2009] WASC 164
Cameron v Cameron [2009] SASC 27
Christie v Manera [2006] WASC 287
Collins v McGain [2003] NSWCA 190
Re Coventry (deceased) [1979] 3 All ER 815
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Delacour v Waddington (1953) 89 CLR 117
Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 05
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWSC 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490; (1980) 31 ALR 23; (1980) 54 ALJR 470
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Hampson v Hampson [2010] NSWCA 359
Hawkins v Prestage (1989) 1 WAR 37
Heyward v Fisher (New South Wales Court of Appeal, 26 April 1985, unreported)
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134; (1979) 23 ALR 321; (1979) 53 ALJR 249
Hyland v Burbidge [2000] NSWSC 12
Kay v Archbold [2008] NSWSC 254
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kossert v Margaret Gerda Ruggi As Executor of the Will of Peter…

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 Dudic v Jakovljevic

Details

AGLC: Dudic v Jakovljevic [2014] NSWSC 169
Case: [2014] NSWSC 169
Decision Date: 05 March 2014

CaseChat Overview and Summary

In the matter of Dudic v Jakovljevic, the deceased, a resident of New South Wales, passed away without leaving a will, leading to an application by the Plaintiff, his daughter, for a family provision order under the Succession Act 2006. The Defendant, the widow of the deceased, opposed the claim. The Plaintiff sought an order for the court to make adequate and proper provision for her, arguing that the deceased had failed to provide for her needs under the rules of intestacy. The estate was very small, complicating the application.

The court was required to determine whether adequate and proper provision had been made for the Plaintiff and, if not, to specify the nature and quantum of the provision to be made. The court considered the Plaintiff’s financial circumstances, her relationship with the deceased, and the deceased's assets. It also took into account the Defendant’s opposition and the overall fairness of making a family provision order in light of the small estate.

The court found that the deceased had not made adequate and proper provision for the Plaintiff, taking into account the Plaintiff's need for financial support and the deceased's ability to provide for her. The court determined that the deceased's estate, though small, was sufficient to make a provision for the Plaintiff. The court made an order for the Plaintiff to receive a lump sum from the estate to meet her reasonable needs. The court balanced the needs of the Plaintiff against the rights of the Defendant, ensuring that the order was fair and equitable.

The final orders made by the court included an order for the Plaintiff to receive a specified lump sum from the estate of the deceased, to be paid within a set timeframe. The court also ordered that the Defendant's rights as the widow of the deceased would be protected in accordance with the law. This decision ensures that the Plaintiff's reasonable needs are met while respecting the rights of all parties involved.

Orders