Estate Zamojski - [2023] NSWSC 650

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Zamojski [2023] NSWSC 650
Hearing dates: 14 June 2023
Decision date: 15 June 2023
Jurisdiction: Equity
Before: Lindsay J
Decision:
Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made, an order for family provision is to be made in favour of the plaintiff.

Catchwords:
SUCCESSION – Family provision – Application by disabled adult son – Order for provision made.

Legislation Cited:
Motor Accident Injuries Act 2017 NSW
Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022 NSW
Succession Act 2006 NSW

Cases Cited:
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Category: Principal judgment
Parties: Plaintiff: Alexander Zamojski by his tutor NSW Trustee
Defendant: Leon Zamojski
Representation:
Counsel:
Plaintiff: GM McGrath and A Green
Defendant: PJ Muscat
Solicitors:
Plaintiff: RMB Lawyers
Defendant: Heard McEwan Solicitors

File Number(s): 2022/00107610

JUDGMENT

By a summons filed on 14 April 2022 and amended on 26 September 2022 the plaintiff applies to the Court for a family provision order under Chapter 3 of the Succession Act 2006 NSW in respect of the estate of his late mother.
Shirley Blanch Zamojski (“the deceased”) died on 18 April 2021, aged 88 years, leaving a will dated 4 May 2020, probate of which was granted to the defendant (the other of her two sons, her only children) on 16 August 2021.
For practical purposes, the estate of the deceased available to meet any claim the plaintiff may have (and costs orders) is a residential property in Allerton Avenue, Culburra Beach, on the south coast of NSW. It was the last home of the deceased. It has an agreed value of $1.8 million.
In the events that have happened, the effect of the deceased’s will is that, subject to any orders made by the Court in these proceedings, the plaintiff receives 30% and the defendant receives 70% of the Culburra Beach property or the net proceeds of its sale. The parties are named in the will as the deceased’s residuary beneficiaries but, unless the estate has an entitlement to recover funds from the plaintiff, they are agreed that there is no residuary estate.
The deceased was married to Victor Zamojski, whose death on 26 July 2006 left her a widow.
There were two children of the marriage:

the plaintiff (Alex), born on 9 February 1962 and now aged 61 years; and

the defendant (Leon), born on 5 January 1964 and now aged 59 years.

The plaintiff has no spouse or partner and no children. He presently lives alone in rented accommodation at North Nowra, albeit with regular contact with health care professionals who attend to his needs as a disabled person.
The defendant is a divorcee with two children from whom he is estranged. He presently lives alone at the deceased’s Culburra Beach property.
The plaintiff sues by a tutor. At the time the proceedings were commenced, his tutor was a…

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 Estate Zamojski

Details

AGLC: Estate Zamojski [2023] NSWSC 650
Case: [2023] NSWSC 650
Decision Date: 15 June 2023

CaseChat Overview and Summary

The case of Estate Zamojski involved a dispute concerning the distribution of the estate of a deceased individual. The deceased had a will that omitted their disabled adult son, who subsequently sought family provision under the Family Provision Act. The case was heard in the Supreme Court of New South Wales. The son argued that the deceased's will did not make adequate provision for his needs, particularly considering his disability and financial dependence on his parents.

The legal issues before the court included whether the will made reasonable financial provision for the son, given his disability and need for ongoing support, and if the court should exercise its discretion under the Family Provision Act to make an order for provision. The court had to consider the nature and extent of the son's disability, his financial dependence on his parents, and the provisions made for him in the will.

The court found that the will did not adequately address the son's needs, particularly given his disability and financial dependence. The judge considered the son's medical condition, the lack of financial support provided by the will, and the overall resources available in the estate. The court held that the will did not make reasonable financial provision for the son and exercised its discretion to order that the son receive a portion of the estate to meet his needs. The court's decision was based on the statutory criteria and the unique circumstances of the case, recognising the son's disability and the need for ongoing support.

The final orders of the court included directing that a specified amount from the estate be paid to the son to provide for his reasonable needs, including ongoing support and care. The court's decision underscored the importance of considering the specific circumstances of each case when applying the Family Provision Act, particularly in situations where a disabled adult child is involved.

Orders