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Habricko v Palijan

Habricko v Palijan

Case [2017] NSWSC 1695 6 December 2017

Family Provision

Circumstances Precluding Relief

Maintenance

Wills

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Habricko v Palijan [2017] NSWSC 1695
Hearing dates: 19, 20 June 2017
Decision date: 06 December 2017
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Summons dismissed

Catchwords: SUCCESSION — family provision and maintenance — circumstances precluding relief — adult children — defendant sister preferred in surviving parent’s will to exclusion of plaintiff brother — brother fails to identify any particular need other than possibly for vicissitudes — failure to provide for brother not inadequate where he was treated generously during parents’ lives and sister had not been
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Camernik v Reholc [2012] NSWSC 1537
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sellak v Sellak (No 2) [2016] NSWSC 396
Verzar v Verzar [2014] NSWCA 45
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Tom Habricko (Plaintiff)
Mary Palijan (Defendant)
Representation:
Counsel:
F Austin (Plaintiff)
G A Elliott (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Walter T Lyubicic & Associates (Defendant)

File Number(s): 2016/192687
Publication restriction: No

Judgment

Summary

The plaintiff is Tom Habricko (“Tom”), the only son of Jela Habricko (“Mrs Habricko”) and her husband Ivan Habricko (“Ivan”). Mrs Habricko died on 16 July 2015 at the age of 82. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names.
On 16 February 2013, Mrs Habricko made her final will (the “Will”).
In addition to Tom (who is 61 years old), the defendant Mary Palijan (“Mary”) is Mrs Habricko’s only other eligible beneficiary. Mary (who is 57 years old) is Tom’s only sister and the only daughter of Mrs Habricko and Ivan. Mary is the appointed executrix and trustee of the Will.
Under the Will, Mrs Habricko’s estate (the “Estate”) was left entirely to Mary. At the time of trial, it comprised an immaterial amount of cash and 50% of a property at Cecil Hills (the “Cecil Hills Property”) which was jointly owned as tenants in common as to 50% by Mrs Habricko, and as to 50% by Mary and her husband, John Palijan (“John”). The value of Mrs Habricko’s 50% share at the time of hearing was approximately $775,000.
By summons filed on 24 June 2016, Tom applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the “Act”). Mr R Austin of Counsel appeared for Tom and Mr G A Elliott of Counsel appeared for Mary.
Mr Austin ultimately accepted that any provision for Tom could not be more than between $50,000 and $100,000 as a buffer for contingencies or vicissitudes. Tom had received considerable financial assistance from Mrs Habricko and Ivan during their lifetimes. Mary had not. In the last three years of her life, Mrs Habricko had purchased the Cecil Hills Property with Mary pursuant to an arrangement that Mary would care for her (Mrs Habricko) and then receive the Estate. Mary had cared…

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 Habricko v Palijan

Details

AGLC: Habricko v Palijan [2017] NSWSC 1695
Case: [2017] NSWSC 1695
Decision Date: 06 December 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, Habricko, the plaintiff, sought family provision and maintenance against Palijan, the defendant, his sister, pursuant to the Family Provision Act 1982. The plaintiff contended that the estate of their deceased parents was insufficiently provided for, particularly as it favoured the defendant over him. The parents' will left the estate to the defendant, excluding the plaintiff. The plaintiff argued that this exclusion was unjust and that he required financial support.

The court was required to determine whether the parents' distribution of their estate was reasonable and whether the plaintiff had demonstrated a particular need that justified a claim against the estate. The legal issues centred on the interpretation of the Family Provision Act 1982, the assessment of the reasonableness of the parents' testamentary dispositions, and the identification of any particular need that the plaintiff might have. The court also considered the financial support provided to the plaintiff during the parents' lifetimes and the relationship between the siblings.

The court held that the parents' will was reasonable, given the substantial financial support provided to the plaintiff during their lives. The plaintiff had not identified any particular need for maintenance beyond the possibility of future vicissitudes. The court found that the parents' decision to exclude the plaintiff from their will was not unreasonable, especially considering the generous treatment he received during their lifetime. The plaintiff's claim was dismissed, and no orders for family provision or maintenance were made in his favour.

Orders