Jones v Krawczyk - [2011] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation: Jones v Krawczyk [2011] NSWSC 139
Hearing dates: 25 November 2010
Decision date: 04 February 2011
Before: White J
Decision:
Refer to para 52 of judgment

Catchwords: WILL - Construction - Public policy - Condition affecting eligibility for appointment as trustee of trust of which primary beneficiary - Ineligible for appointment as trustee so long as married to or in cohabitation with specified person - Not debarred from receiving the corpus of estate while remaining married to or in cohabitation with specified person - Effect on marital relations - Whether likely to induce divorce and separation - Whether causes significant discord or friction in marriage
Legislation Cited: Marriage Act 1928 (Vic)
Family Law Act 1975 (Cth)
Succession Act 2006 (NSW)
Cases Cited: Ramsay v Trustees Executors and Agency Co Ltd [1948] HCA 44; (1948) 77 CLR 321
Trustees of Church Property of the Diocese of Newcastle v Ebbeck [1960] HCA 38; (1960) 104 CLR 394
Ellaway v Lawson [2006] QSC 170
Seidler v Schallhofer [1982] 2 NSWLR 80; (1982) 8 Fam LR 598
Texts Cited: Halsbury's Laws of Australia
Category: Principal judgment
Parties: Zofia Maria Jones - Plaintiff
John Krawczyk - Defendant
Representation: Counsel:
R Harris SC - Plaintiff
L Judge - Defendant
Solicitors:
Craddock Murray Neumann - Plaintiff
Williams Roncolato Lawyers - Defendant

File Number(s): 2010/137822

Judgment

HIS HONOUR: The issue in these proceedings is whether a clause rendering the plaintiff ineligible to act as trustee of certain testamentary trusts is void as being contrary to public policy.

The proceedings concern the estate of Zofia Krawczyk who died on 20 August 2009. She left a modest estate valued for probate purposes at $732,859.35. The principal assets of the estate consisted of three parcels of land, one at 35 Arnott Road, Marayong, another at 4 Nairana Drive, Marayong and the third at Lot 17, 18 Bellbird Avenue, Kurrajong.

3Despite the modest nature of the estate, the deceased's will is an extraordinarily elaborate document of 24 pages.

The deceased had two children, namely her daughter, Zofia Maria Jones who is the plaintiff, and her son John, who is the defendant. By clause 3.1 the defendant was appointed as executor of the will.

Clauses 11.1 and 12 provide as follows:

"11.1 If they survive me by thirty (30) days and (unless otherwise specified) attain the qualifying age, I give the following gifts to the following persons, so that:

(a) each person named in the first column of Table A below shall be the primary beneficiary of a beneficiary testamentary trust established in accordance with Part C of this Will in respect of

(b) all my right title and interest in the property specified (and subject to any conditions specified) in the adjacent row of the second column of Table A.

*Name of Person:*	Details of property the subject of the gift:
*1. my daughter Zofia Maria*	my land at 4 Nairana Drive Marayong.
*2. my son John (aka) Jan*	as…

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 Jones v Krawczyk

Details

AGLC: Jones v Krawczyk [2011] NSWSC 139
Case: [2011] NSWSC 139
Decision Date: 04 February 2011

CaseChat Overview and Summary

In the case of Jones v Krawczyk, the respondent, Jones, sought to be appointed as the sole trustee of a trust established by the will of Krawczyk. The trust was established under a condition that the primary beneficiary of the trust must not be married to, or in cohabitation with, the named individual during the time of their appointment as trustee. The dispute arose as Jones was in a relationship with the named individual and thus ineligible to be appointed as trustee. However, Jones argued that the condition was invalid as it was against public policy and detrimental to marital relations. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court included whether the condition attached to the appointment of the trustee was enforceable and whether it contravened public policy. The court also had to consider whether the condition was likely to induce divorce or cause significant discord or friction in the marriage of Jones and the named individual. The court needed to determine if the condition was reasonable and not against public policy.

The court found that the condition was valid and enforceable. The court held that the condition did not contravene public policy, as it was not intended to undermine the marriage but rather to ensure that the primary beneficiary was not in a conflict of interest. The court also held that the condition was reasonable and did not cause significant discord or friction in the marriage of Jones and the named individual. The court rejected Jones' argument that the condition was against public policy, as it was not intended to induce divorce or cause discord in the marriage. The court held that the condition was valid and enforceable, and Jones was not eligible to be appointed as the sole trustee of the trust.

The court dismissed Jones' application and held that the condition attached to the appointment of the trustee was valid and enforceable. The court held that the condition did not contravene public policy and did not cause significant discord or friction in the marriage of Jones and the named individual. The court further held that Jones was not eligible to be appointed as the sole trustee of the trust.

Orders