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Georgopoulos v Tsiokanis

Georgopoulos v Tsiokanis

Case [2022] NSWSC 563 11 May 2022

Family Provision Order

Wills & Testaments

Eligibility

Quantum of Provision

Statutory Interpretation

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563
Hearing dates: 11 - 13 April 2022
Date of orders: 11 May 2022
Decision date: 11 May 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [362]

Catchwords:
SUCCESSION – Claim by adult daughter of the deceased, for a family provision order pursuant to Chapter 3 of the Succession Act 2006 (NSW) – Question whether s 91 grant necessary to enable the Plaintiff's application to be dealt with – No dispute as to the Plaintiff's eligibility – Application not made within prescribed period – Deceased left a Will providing lengthy reasons for making only a bequest of $100 for the Plaintiff – Balance of estate left to the Defendants, the only other son and daughter of the deceased – Whether family provision order should be made for Plaintiff, and if so, the nature and quantum of the further provision to be made – Order for additional provision for Plaintiff not made – Summons dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 98, 100(2)
Evidence Act 1995 (NSW) s 140(2)(c)
Family Law Act 1975 (Cth) s 121
Family Provision Act 1982 (NSW) ss 6-7,16
Probate and Administration Act 1898 (NSW) s 44, 86
Succession Act 2006 (NSW) ss 3, 55, 57-59, 60-61, 65-66, 72, 74-77, 83-84, 91 & 99
Uniform Civil Procedure Rules 2005 (NSW) rr 7.10(2)(b), 31.16A, 33.10, 35.2(3)

Cases Cited:
Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Barns v Barns (2003) 214 CLR 169; [2003] HCA 9
Bartlett v Coomber [2008] NSWCA 100
Bassett v Bassett [2021] NSWCA 320
BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189
BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burke v Burke [2014] NSWSC 1015
Burke v Burke [2015] NSWCA 195
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Delaney v Jones [2008] NSWSC 229
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Forsyth v Sinclair…

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 Georgopoulos v Tsiokanis

Details

AGLC: Georgopoulos v Tsiokanis [2022] NSWSC 563
Case: [2022] NSWSC 563
Decision Date: 11 May 2022

CaseChat Overview and Summary

In the case of Georgopoulos v Tsiokanis, the plaintiff, a daughter of the deceased, brought a claim for a family provision order under the Succession Act 2006 (NSW) against her siblings. The dispute centred around the deceased's decision to leave her only $100 in his will, while the rest of his estate was left to her brother and sister. The court was tasked with determining whether the statutory requirements for such an application were met, given that the claim was not made within the prescribed period. Additionally, the court had to consider whether the deceased's reasons for his bequest were sufficient, and if so, whether the plaintiff was entitled to any further provision from the estate.

The legal issues before the court included whether the provisions of section 91 of the Succession Act were necessary for the plaintiff's application to proceed, despite the absence of any dispute regarding her eligibility. Another key issue was the adequacy of the reasons provided by the deceased for his bequest, and the appropriate quantum of any additional provision that should be made to the plaintiff. The court also needed to consider the timing of the plaintiff's application and whether it fell within the allowable timeframe.

The court found that the statutory requirements under section 91 were indeed necessary for the plaintiff's application to proceed, but since the application was not made within the prescribed period, the claim was dismissed. The court held that the deceased's reasons for his bequest were sufficient, and there was no basis to interfere with the deceased's testamentary freedom. Consequently, the plaintiff's claim for further provision from the estate was denied, and the summons was dismissed.

No additional orders were made by the court beyond the dismissal of the summons.

Orders