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Finlay v Pereg

Finlay v Pereg

Case [2022] NSWSC 32 27 January 2022

Family Provision

Forfeiture Rule

Substitutary Beneficiary

Entitlement

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Finlay v Pereg [2022] NSWSC 32
Hearing dates: 22 and 23 November 2021; Further written submissions closed 20 December 2021
Date of orders: 27 January 2022
Decision date: 27 January 2022
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Additional provision ordered

Catchwords:
SUCCESSION — Family provision — Claim by de facto husband — Provision sought where estate left equally to de facto husband and deceased’s three siblings — Application of forfeiture rule to deprive substitutionary beneficiary of his share — Relevance of plaintiff’s aged pension entitlement

Legislation Cited:
Practice Note SC Eq 7
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Foster v Lisle [2003] NSWSC 1243
Gunawardena v Kanagaratnam Sri Kantha [2007] NSWSC 151
Helton v Allen (1940) 63 CLR 691
Nicholas v Nicholas [2013] NSWSC 697
Parker v Public Trustee (Supreme Court (NSW), Young J, 31 May 1988, unrep)
Pontifical Society for Propagation of Faith v Scales (1962) 107 CLR 9; [1962] HCA 19
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Category: Principal judgment
Parties:
John Paul Finlay (Plaintiff)
Moshe Pereg (First Defendant)
Edna Navon (Second Defendant)
Guy Sarusi (Third Defendant)
Lior Sarusi (Fourth Defendant)
Vered Sarusi (Fifth Defendant)
Yaron Sarusi (Sixth Defendant)
Gilad Sarusi (Seventh Defendant)
Representation:
Counsel:

J E Armfield (Plaintiff
B Burke (First and Second Defendants)
Guy Sarusi (Third Defendant in person) (Third to Sixth Defendants)

Solicitors:
Moin Morris Schaefer Pty Ltd (Plaintiff)
Eddy Neuman Lawyers (First and Second Defendants)

File Number(s): 2019/383024
Publication restriction: Nil

Judgment

Summary

These family provision proceedings are one consequence of a devastating family tragedy. A son, Gilad Sarusi, murdered his mother, Pyrhia Sarusi, and his aunt, Lily Pereg, in Argentina. Without any disrespect intended, the Court will refer to the various individuals in these proceedings by their given names.
The plaintiff, John Finlay, was Lily’s de facto husband of ten years. They lived together at Lily’s home in Armidale, where Lily was an internationally respected academic at the University of New England in the field of soil science. Lily’s will made on 5 August 2013 (the Will) relevantly provided that, after paying out John’s mortgage over a unit he owned in Ocean Shores (the Unit), the residue of her estate (the Estate) was to be divided equally between:

John;

Lily’s brother Moshe Pereg (the first defendant);

Lily’s sister Edna Navon (the second defendant); and

Lily’s sister Pyrhia or, if Pyrhia did not survive Lily, Pyrhia’s children (Lily’s nephews) Guy Sarusi (the third defendant), Lior Sarusi (the fourth defendant), Vered Sarusi (the fifth defendant), Yaron Sarusi (the sixth defendant) and Gilad (the seventh defendant). I shall refer to the third to sixth defendants as “the Sarusi defendants”.

With the exception of Gilad, who was recently convicted of the murders of Lily and Pyrhia and is now serving a life prison…

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 Finlay v Pereg

Details

AGLC: Finlay v Pereg [2022] NSWSC 32
Case: [2022] NSWSC 32
Decision Date: 27 January 2022

CaseChat Overview and Summary

The matter before the court was a family provision claim brought by Finlay, the deceased's de facto husband, against the executors of the deceased's estate. Finlay sought to challenge the provisions of the deceased's will, which left her estate equally between herself and the deceased's three siblings, excluding Finlay from any inheritance. Finlay argued that this arrangement was not fair and just, considering her relationship with the deceased and her financial circumstances. The primary legal issue before the court was whether the application of the forfeiture rule, which deprives a substitutionary beneficiary of their share, was appropriate in this case to benefit the de facto husband. The court also had to consider the relevance of Finlay's entitlement to an aged pension in determining the fairness of the provisions.

The court found that the application of the forfeiture rule was justified in this case. It considered the nature and duration of Finlay's relationship with the deceased, as well as the contributions she made to the relationship. The court determined that the deceased's decision to leave his estate equally between Finlay and his siblings was not fair and just, as it did not adequately account for Finlay's needs and contributions. The court also acknowledged Finlay's entitlement to an aged pension but found that it did not entirely offset her need for financial provision from the estate. The court concluded that depriving the deceased's siblings of their share through the application of the forfeiture rule was necessary to achieve a fair and just outcome for Finlay.

The court ordered that the estate be distributed in a manner that provided for Finlay's reasonable needs and that the deceased's siblings be deprived of their share through the application of the forfeiture rule. This decision ensures that Finlay receives the financial provision she requires, while also addressing the court's concerns about the fairness of the original provisions. The outcome reflects the court's commitment to ensuring that family provision claims are decided on a case-by-case basis, taking into account the unique circumstances of each party involved.

Orders