[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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- [2022] TASFC 10
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CaseChat Overview and Summary
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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