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Kalmar v Kalmar

Kalmar v Kalmar

Case [2006] NSWSC 437 8 May 2006

Family Provision Act 1982 (NSW)

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CITATION: Kalmar v Kalmar; estate of Kalmar [2006] NSWSC 437

HEARING DATE(S): 04/05/06

JUDGMENT DATE :
8 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 05/08/2006

DECISION: Counsel to bring in short minutes of order consistent with reasons.

CATCHWORDS: FAMILY PROVISION ACT – Extension of time – Plaintiff brought proceedings out of time – Section 16 of Family Provision Act 1982 (NSW) – Factors relevant to Court’s discretion to grant extension of time – Relevance of plaintiff’s possible cause of action against her solicitor –Extension of time granted - FAMILY PROVISION ACT – Adequate provision – Plaintiff was deceased’s wife – Plaintiff and deceased separated (but not divorced) prior to deceased’s death – Needs of plaintiff significant – Needs of other beneficiaries under the will significant – Modest estate – Provision ordered.

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Wills Probate & Administration Act 1898 (NSW)

CASES CITED: Warren v McKnight (1996) 40 NSWLR 390
re Salmon (deceased) [1981] Ch 167
De Groot & Nickel, Family Provision in Australia, 2 Ed
Charles v Charles (unreported, 15 March 1998) BC880291
Singer v Berghouse (1994) 181 CLR 201
Bladwell v Davis [2004] NSWCA 170
re Clissold (deceased) (1970) 2 NSWLR 619
re Mercer (deceased) [1977] 1 NZLR 469
Palmer v Dolman [2004] NSWCA 361

PARTIES: Marija Kalmar
v
BJ Alexander John Kalmar in the estate of Jozsef Kalmar

FILE NUMBER(S): SC 6567/04

COUNSEL: Plaintiff: D M Flaherty
Defendant: A Gruzman

SOLICITORS: Plaintiff: Mullick & Associates
Defendant: SAVIO Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 8 May 2006

6567/04
Marija Kalmar v BJ Alexander John Kalmar in the estate of Jozsef Kalmar

JUDGMENT

1 HIS HONOUR: This is an application for an order under s 7 of the Family Provision Act 1982 (NSW) that provision be made for the plaintiff's maintenance and advancement in life out of the estate of Jozsef Kalmar.

2 Jozsef Kalmar died on 26 September 2002 aged 75. The plaintiff is his widow. She is now 64. She was his second wife. The plaintiff and the deceased were married on 4 April 1997. They lived together as man and wife for about a year before they were married. They separated by no later than 19 April 2002. They were not divorced.

3 The deceased made his last will on 12 July 2002. He left his estate to his son and daughter by his first marriage in the shares of 70 per cent to his son and 30 per cent to his daughter.

Extension of Time for Instituting Proceedings

4 The summons in these proceedings was not filed until 3 December 2004, more than two and a quarter years after the deceased's death.

5 Subsection 16 (2) of the Act provides:

“ 16 Time for application for provision

…

(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or…

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 Kalmar v Kalmar

Details

AGLC: Kalmar v Kalmar [2006] NSWSC 437
Case: [2006] NSWSC 437
Decision Date: 8 May 2006

CaseChat Overview and Summary

The case of Kalmar v Kalmar involved the plaintiff, Kalmar, who sought to challenge the adequacy of the provisions made for her under the will of her late husband. The dispute was heard in the Supreme Court of New South Wales. Kalmar argued that the will did not make adequate provision for her needs, despite being separated from her husband at the time of his death. The primary legal issue was whether the court should grant an extension of time to Kalmar to bring her proceedings under the Family Provision Act 1982 (NSW), as she had missed the statutory time limit. Additionally, the court had to determine whether the provisions made for Kalmar under the will were adequate, considering her needs and those of other beneficiaries.

The court considered the relevant factors for exercising its discretion to extend the time limit under Section 16 of the Family Provision Act 1982 (NSW). It examined whether Kalmar had a bona fide claim, the length of the delay, the reason for the delay, and whether there was any prejudice to other beneficiaries if the time extension was granted. The court found that Kalmar had a possible cause of action against her solicitor for professional negligence, which might have contributed to the delay. However, it deemed this factor less significant than the potential prejudice to Kalmar if the time extension was not granted. The court granted the extension of time, concluding that Kalmar had a reasonable excuse for the delay and that there was no significant prejudice to the other beneficiaries.

In determining whether the provisions made for Kalmar under the will were adequate, the court considered her needs and the needs of other beneficiaries, as well as the size of the estate. Kalmar was the deceased’s wife and had been separated from him prior to his death. The court found that Kalmar's needs were significant, given her separation from the deceased and the fact that she had not remarried. The needs of other beneficiaries, including children from a previous relationship of the deceased, were also significant. The estate was described as modest, which influenced the court’s assessment of adequacy. Ultimately, the court ordered that adequate provision be made for Kalmar.

Orders