Karimalis v Kapodistrias

Case [2022] TASFC 10


[2022] TASFC 10

COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
CITATION:  Karimalis v Kapodistrias [2022] TASFC 10
PARTIES:  KARIMALIS, Efterpi
v
KAPODISTRIAS, Maria
EGAN, Damian Francis
in their capacity as executors of the estate of the late
Theodoros Karimalis
FILE NO:  412/2021
JUDGMENT 
APPEALED FROM:  Karimalis v Kapodistrias [2022] TASSC 25
DELIVERED ON:  1 December 2022
DELIVERED AT:  Hobart
HEARING DATE/S:  7 June 2022
JUDGMENT OF:  Pearce J, Brett J, Porter AJ
CATCHWORDS: 

Succession – Family provision – Criteria for determining application – Generally – Circumstances to be considered – Relevance of applicant's independent means – Where testator had purchased residential property in wife's name for her exclusive use – Property rented out at the time of death – Proper to take that asset into account.

Singer v Berghouse (1994) 181 CLR 201, followed.
Testators Family Maintenance Act 1912, s 7(b).
Aust Dig Succession [1426]

Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Quantum – Surviving spouse or partner – Where testator had purchased residential property in wife's name for her exclusive use – Property rented out at the time of death – Where widow wanted to continue living in the matrimonial home –First instance provision made for widow in the sum of $1.1m but realisation of that sum depended on sale of the rented property – Error established on appeal – Orders making provision by granting life interest in former matrimonial home and a capital sum of $650,000.

Gargano v Coves [2018] NSWSC 985; Hertzberg v Hertzberg [2003] NSWCA 311; Golosky v Golosky [1993]
NSWCA 111; Steinmetz v Shannon [2019] 99 NSWLR 687, considered.
Vigolo v Bostin [2005] 221 CLR 191, followed.
Aust Dig Succession [1436]

REPRESENTATION:

Counsel:

Appellant:  K E Read SC
Respondents:  P G J Zeeman

Solicitors:

Appellant:  Butler McIntyre & Butler
Respondents:  Murdoch Clarke
Judgment Number:  [2022] TASFC 10
Number of paragraphs:  86

Serial No 10/2022 File No: 412/2021

EFTERPI KARIMALIS v MARIA KAPODISTRIAS AND DAMIAN FRANCIS

EGAN IN THEIR CAPACITY AS EXECUTORS OF THE ESTATE OF THE LATE

THEODOROS KARIMALIS

REASONS FOR JUDGMENT FULL COURT
PEARCE J
BRETT J
PORTER AJ
1 December 2022
Orders of the Court: 

1         Appeal allowed and the orders of the Associate Judge made on 19 May 2022 set aside.

2         In lieu, an order that clauses 2.1 to 2.7 of the will be substituted by directions to the respondents as executors and trustees that the testator's interest in the property situated at 32 Shepherd Street, Sandy Bay in Tasmania be held on trust for the appellant for her lifetime, and that they pay to her from the estate the sum of $650,000.

3         Directed that a certified copy of order no 2 be made upon the probate of the will and that the respondents bring into Court the grant of probate for that purpose.

2   No 10/2022

Serial No 10/2022 File No: 412/2021

EFTERPI KARIMALIS v MARIA KAPODISTRIAS…

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AGLC
Karimalis v Kapodistrias [2022] TASFC 10
Case
[2022] TASFC 10
Decision Date

CaseChat Overview and Summary

The appeal in *Karimalis v Kapodistrias* concerned a family provision claim brought by the appellant against the estate of the deceased. The dispute centred on whether the provision made for the appellant under the deceased's will was adequate, and whether certain assets should be considered in assessing the estate's value for the purposes of the claim. The matter was heard by Pearce J, Brett J, and Porter AJ.

The primary legal issue before the Court was to determine the appropriate provision to be made for the appellant from the deceased's estate, considering the circumstances of the parties and the relevant legislative criteria for family provision claims. This involved assessing the deceased's obligations and responsibilities to the appellant, the appellant's own financial resources and needs, and the size and nature of the deceased's estate. A key aspect of this determination was whether a residential property, purchased by the deceased in the appellant's name for her exclusive use but rented out at the time of the deceased's death, should be taken into account as an asset relevant to the appellant's independent means.

The Court reasoned that it was proper to take the residential property into account when assessing the appellant's independent means, notwithstanding it was registered in her name and intended for her use. The fact that the property was rented out at the time of the deceased's death indicated it was an income-producing asset that contributed to the appellant's financial position. The Court allowed the appeal, setting aside the orders of the Associate Judge.

In lieu of the previous orders, the Court directed that the deceased's interest in the property at 32 Shepherd Street, Sandy Bay, Tasmania, be held on trust for the appellant for her lifetime. Furthermore, the executors and trustees were ordered to pay the appellant the sum of $650,000 from the estate. The Court also directed that a certified copy of this order be endorsed on the probate of the will, with the executors required to bring the grant of probate into court for this purpose.

Orders

Orders of the court

Orders of the Court:

1 Appeal allowed and the orders of the Associate Judge made on 19 May 2022 set aside.

2 In lieu, an order that clauses 2.1 to 2.7 of the will be substituted by directions to the respondents as executors and trustees that the testator's interest in the property situated at 32 Shepherd Street, Sandy Bay in Tasmania be held on trust for the appellant for her lifetime, and that they pay to her from the estate the sum of $650,000.

3 Directed that a certified copy of order no 2 be made upon the probate of the will and that the respondents bring into Court the grant of probate for that purpose.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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