Katakouzinos v Katakouzinos - [2019] VSC 3

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 as legal personal representative of the Estate of SOTIRIOS KATAKOUZINOS and in her own capacity (who is sued in her capacity as a person having a substantial interest in opposing the application pursuant to Rule 16.04 (2) Chapter 11 – Supreme Court (Miscellaneous Civil Proceedings) Rules 2006))	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…

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.

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Details

Case: [2019] VSC 3
Decision Date: 1 February 2019

CaseChat Overview and Summary

The case of Katakouzinos v Katakouzinos involved a claim by the surviving adult son of the deceased for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic). The son sought an order against the estate of his father, contesting the provisions made for him in the will. The application was opposed by the surviving spouse of the deceased, who was the beneficiary of the estate. The dispute centred on the quantum of provision the son should receive from his father’s estate, with the moral duty to provide for the son being conceded.

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.

Orders