| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S CI 2017 04388
| ARISTIDIS KATAKOUZINOS | Plaintiff |
| v | |
| ANASTASIA KATAKOUZINOS | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October and 1 November 2018 |
DATE OF JUDGMENT: | 1 February 2019 |
CASE MAY BE CITED AS: | Katakouzinos v Katakouzinos |
MEDIUM NEUTRAL CITATION: | [2019] VSC 3 |
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TESTATORS FAMILY MAINTENANCE – Application for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic) by surviving adult son – Application opposed by the surviving spouse of the beneficiary of the deceased’s estate – Where conceded that the testator owed a moral duty to provide for the applicant – Where quantum of provision in dispute – Administration and Probate Act 1958 (Vic) ss 90, 91, 91A, applied – Brimelow v Alampi (2016) 50 VR 219, referred to – Applicant in financial need – Capacity of applicant to provide for himself - Relevance of contributions and circumstances of defendant where defendant is not an ‘eligible person’ within the meaning of the Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W F Gillies | Bayside Solicitors |
| For the Defendant | Mr S P Newton | Featherby’s Pty Ltd, Lawyers |
HER HONOUR:
Mr Andreas Katakouzinos died on 1 August 2015. He left behind two adult sons, Sotirios and Aristidis (‘Ari’). His wife, Pelagia (the sons’ mother), pre‑deceased him. Sotirios, who had been a lifelong sufferer of thalassemia, a blood disorder, died on 5 December 2016, at 49 years of age. Sotirios was survived by his wife, Anastasia, and Ari, who is now aged 49. Ari is the plaintiff in this proceeding. He brings an application for provision from his father’s estate under Part IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
Ari’s application is opposed by Anastasia, who could be described as the derivative beneficiary of Andreas’ estate, being the sole beneficiary of Sotirios’ will pursuant to an intestacy. Andreas made a will on 27 January 2011 (‘will’). In the will, Andreas left the only substantial asset of his estate, a half share in a property at 320 Purves Road, Main Ridge (‘Main Ridge property’) to Sotirios. The value of Andreas’ interest in the Main Ridge property is agreed to be $802,500, from which needs to be deducted liabilities of approximately $72,500.[1] The other half share of the Main Ridge property was owned by Sotirios. As Sotirios died intestate, subject to Ari’s claims in this proceeding, Anastasia stands to inherit the Main Ridge property, in which she currently lives, and has lived for some six years.
[1]Being the agreed share of a debt pursuant to a line of credit secured against the Main…
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- [2019] VSC 3
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the extent of the testator's moral duty to provide for the applicant, and the appropriate quantum of provision in the circumstances. The court had to consider the provisions of the Administration and Probate Act 1958 (Vic) sections 90, 91, and 91A, and relevant case law, including Brimelow v Alampi. The court examined the financial need of the applicant and his capacity to provide for himself, as well as the relevance of the contributions and circumstances of the defendant, who was not an ‘eligible person’ within the meaning of the Act.
In its decision, the court acknowledged the moral duty owed by the deceased to the applicant but found that the quantum of provision sought by the applicant was excessive. The court considered the financial circumstances of both parties and concluded that the applicant had sufficient means to provide for himself. The court emphasised that the surviving spouse, who was not an eligible person under the Act, should not bear the burden of providing for the applicant. The court made an order that the applicant was to receive a lesser provision from the estate than requested.
The final orders of the court provided for a specific amount to be paid to the applicant from the estate, reflecting the court’s assessment of the deceased's moral duty balanced against the applicant’s financial capacity and the circumstances of the surviving spouse.
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