Legal Research
Cases
Graham v Vukic

Graham v Vukic

Case [2020] NSWSC 1801 14 December 2020

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Graham v Vukic [2020] NSWSC 1801
Hearing dates: 18 November 2020
Date of orders: 14 December 2020
Decision date: 14 December 2020
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
See [132]

Catchwords:
SUCCESSION – family provision – claim by adult daughter for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – previous family arrangement for claimant to receive former family properties on the deceased’s death – estate instead passed by survivorship and will to step-daughter – moral obligation
SUCCESSION – family provision – notional estate – whether order designating property as notional estate should be made

Legislation Cited:
Family Provision Act 1982 (NSW), s 27
Succession Act 2006 (NSW), ss 57, 58, 59, 80, 87

Cases Cited:
Birmingham v Renfrew (1937) 57 CLR 666
John v John [2010] NSWSC 937
Kelly v Deluchi [2012] NSWSC 841
MacAlpine v MacAlpine [2020] NSWSC 824
Megerditchian v Khatchadourian [2020] NSWCA 229
Megerditchian v Khatchadourian [2019] NSWSC 1870
Petschelt v Petschelt [2002] NSWSC 706
Phillips v James (2014) 85 NSWLR 619
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan (2013) 85 NSWLR 253

Category: Principal judgment
Parties: Blzena Graham (Plaintiff)
Jasna Vukic (First Defendant)
Tereza Osrecak (Second Defendant)
Representation:
Counsel:
H Chiu (Plaintiff)
L Ellison SC (Defendants)
Solicitors:
John R De Mattia & Co (Plaintiff)
Lamrocks Solicitors (Defendants)

File Number(s): 2019/255427
Publication restriction: Nil

Judgment

These proceedings concern the estate of the late Frank Radinksi, who died in September 2018 at the age of 85. The plaintiff seeks an order for provision out of his estate under Part 3.2 of the Succession Act 2006 (NSW). Unless otherwise specified, legislative references in the rest of this judgment are to that Act. For convenience and without disrespect I will refer to the members of the deceased’s family by their first names.
The deceased married twice. His first wife was Jela Radinski. She predeceased him, dying in 1983. He later married Terezija Radinski. She also predeceased him, dying in 2015.
The deceased and his first wife Jela had two daughters. The elder was Anna Radinski (now Anna Perdikooris). The younger was Blzena Radinski (now Blzena Graham). Blzena is the plaintiff who is seeking provision in these proceedings.
The deceased and his second wife Terezija married in middle age and had no children together. Terezija had a son and a daughter from a previous marriage. Her daughter (the deceased’s step-daughter) is Tereza Osrecak.
On the deceased’s death the whole of his assets passed to Tereza. She is the second defendant. Her daughter (the deceased’s step-granddaughter), Jasna Vukic, was appointed executor of the deceased’s estate under his will. She is the first defendant.
The same solicitors and counsel acted for both Tereza and Jasna in the proceedings. For convenience, I will refer to them as Tereza’s solicitors and counsel in the balance of this judgment.

Issues for determination

The deceased’s last will was made in 2011. Under that will, he left his estate…

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 Graham v Vukic

Details

AGLC: Graham v Vukic [2020] NSWSC 1801
Case: [2020] NSWSC 1801
Decision Date: 14 December 2020

CaseChat Overview and Summary

The case of Graham v Vukic involved a dispute over the distribution of an estate under the Succession Act 2006 (NSW). The daughter, who was the applicant, sought provision from her deceased father's estate, which had been left to her step-daughter. The father had previously expressed his intention that the daughter would inherit his properties, but the estate passed to the step-daughter due to survivorship and the father's will. The daughter argued that this outcome was contrary to what she reasonably expected from her father, considering their prior understanding.

The court had to determine whether the daughter's claim was valid under the Succession Act and if the estate should be distributed differently. The central legal issue was whether the daughter had a reasonable expectation to inherit the properties based on the family arrangement, and if so, whether the court should order the estate to be designated as the notional estate to meet her claim. The court also needed to consider if the daughter's reasonable expectation constituted a moral obligation that could be enforced.

The court found that the daughter had a reasonable expectation of inheriting the properties based on her father's representations. However, it concluded that these expectations did not amount to a moral obligation enforceable under the Succession Act. The court also held that the estate did not need to be designated as the notional estate to meet the daughter's claim, as the step-daughter was already in possession of the properties through survivorship and the will. The court determined that the step-daughter's rights to the properties were legally binding, and the daughter's claim could not be satisfied from the estate. Consequently, the daughter's application was dismissed.

Orders