Galvin v Semkiw - [2013] VSC 142

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2012 06079

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER OF the Will and Estate of MYRON BARANOWSKY, deceased

BETWEEN

MAVIS GALVIN

and

JURIG SEMKIW and HELEN MAJKA (who are sued as executors of the Will of the abovenamed deceased)

Plaintiff

Defendants

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2013
DATE OF JUDGMENT:	27 March 2013
CASE MAY BE CITED AS:	Galvin v Semkiw and Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 142

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ADMINISTRATION AND PROBATE – Extension of time for application for family provision under Part IV Administration of Probate Act 1958 (Vic) – Delay of five months – Section 99 Administration of Probate Act 1958 (Vic) - Relevance of property settlement agreement made pursuant to section 87 of the Family Law Act 1975 (Cth)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McOmish	Arnold Thomas & Becker
For the Defendants	Mr R B Phillips	S Tomyn & Co

HER HONOUR:

This is an application by the plaintiff pursuant to s 99 of the Administration and Probate Act1958 (the ‘Act’) for an extension of time within which to bring the proceeding pursuant to Part IV of the Act.

The plaintiff is the former wife of the deceased, Myron Baranowsky. She has filed an originating motion claiming provision under his will. She contends that she is a person for whom the deceased had responsibility to make adequate provision for proper maintenance and support, and that he has failed to do so.

The estate in question is worth about $450,000.[1] Mr Baranowsky’s will makes provision as follows:

(a)20% to each of his brother and sister in the Ukraine. However, each sibling is deceased and their share of the estate has passed to their children;
(b)20% to the deceased’s illegitimate daughter in the United States;
(c)10% to the son of the plaintiff and the deceased, Marko;
(d)15% each to the Association of Ukrainians in Victoria and to the trustees of St George Cathedral, Lviv, Ukraine.

[1]The Court was informed that the primary asset of the estate is a unit in Glenroy Road, Glenroy, which is worth about $225,000 and there is cash of about $220,000.

No provision was made for the plaintiff or for the daughter of the plaintiff and the deceased, Tonia Galvin.

Mr Baranowsky died on 3 June 2007. His last will was made on 24 February 2006 and probate was granted to the defendants on 24 November 2011. The proceeding was commenced on 29 October 2012. Pursuant to s 99 of the Act, the time within which the proceeding should have been brought expired on 24 May 2012.

The fate of the plaintiff’s claim therefore depends on the success of this application to extend the time within which her application for provision may be made.

The plaintiff has filed two affidavits in support of her application…

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 Galvin v Semkiw

Details

AGLC: Galvin v Semkiw [2013] VSC 142
Case: [2013] VSC 142
Decision Date: 27 March 2013

CaseChat Overview and Summary

In the matter of Galvin v Semkiw, the dispute before the court involved an application by the daughter of the deceased, seeking an extension of time to make a family provision application under Part IV of the Administration of Probate Act 1958 (Vic). The deceased had passed away in 2009, and the daughter filed her application five months beyond the statutory time limit. The court had to determine whether the delay was justifiable and if the extension of time should be granted under section 99 of the Act. Additionally, the court had to consider the relevance of a property settlement agreement entered into pursuant to section 87 of the Family Law Act 1975 (Cth).

The central legal issues before the court were whether the five-month delay in filing the family provision application was reasonable, and if so, whether the court should exercise its discretion to extend the time limit under section 99 of the Administration of Probate Act. The court also needed to assess the relevance and impact of the property settlement agreement on the application for an extension of time.

The court found that the five-month delay in filing the family provision application was not reasonable. However, the court exercised its discretion to extend the time limit under section 99 of the Administration of Probate Act, considering the circumstances of the case. The court determined that the property settlement agreement was relevant to the application for an extension of time, as it demonstrated that the daughter had been engaged in negotiations with the other beneficiaries and had been working towards a resolution. The court acknowledged that the delay was not due to any fault or negligence on the part of the daughter, but rather due to the complexity of the negotiations and the time required to reach an agreement. As such, the court granted the extension of time, allowing the daughter to proceed with her family provision application.

Orders