Kennedy v Jvancich - [2003] NSWSC 441

CITATION: Kennedy v Jvancich [2003] NSWSC 441

HEARING DATE(S): 25, 26 March 2003

JUDGMENT DATE:
26 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1). Order that proceedings be stood over to a date to be fixed for the bringing in of short minutes.

CATCHWORDS: Succession - Family Provision - Claim by adult daughter - All assets of Deceased were held conjointly with his wife, the Defendant - Prescribed transactions - Notional estate - Financial and material circumstances of Plaintiff - Competing claim of Defendant - No grant of probate of will of Deceased - Letters of administration granted to another eligible person to enable a claim to be made - Whether separate grant of letters of administration must be made to each claimant

LEGISLATION CITED: Family Provision Act 1982
Wills, Probate and Administration Act 1898

CASES CITED: Doyle v Smith (21 September 1995, Master McLaughlin, unreported)
Singer v Berghouse (1994) 181 CLR 201

PARTIES :
Kimm Kennedy (Plaintiff)
Augustina Alcantara Jvancich (Defendant)

FILE NUMBER(S): SC 4910/00

COUNSEL: A. Smith (Plaintiff)
R. Wilson (Defendant)

SOLICITORS: Kelly & Agerholm, Solicitors (Plaintiff)
Stacks Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 May 2003

4910 of 2000 KIMM KENNEDY -v- AUGUSTINA ALCANTARA JVANCICH

JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 7 December 2000 the Plaintiff Kimm Kennedy claims an order for provision for her maintenance and advancement in life out of the estate of her late father Kevin Norman Jvancich (to whom I shall refer as “the Deceased”).

3 It should here be observed that the Defendant named in that summons was Nadine Helen Van Komen. However, pursuant to an order made by the Registrar on 7 May 2002 the present Defendant, Augustina Alcantara Jvancich, was substituted as the Defendant to the proceedings. An amended summons (although entitled “summons”), reflecting that change in the identity of the Defendant, was at the outset of the hearing on 25 March 2003 filed by the Plaintiff, without objection by the present Defendant.

4 By that amended summons the Plaintiff also claims that provision be made for her education and advancement as well as for her maintenance, and that such provision be made out of the notional estate of the Deceased. By prayer 2 in the amended summons the Plaintiff identifies various assets which she seeks should be designated as notional estate of the Deceased.

5 The Deceased died on 7 June 1999, aged sixty-eight years (having been born on 31 May 1931). He left a will dated 15 May 1999. However, for reasons which will shortly emerge, that will has never been admitted to probate. By his will the Deceased appointed his wife Augustina Alcantara Jvancich and his son Vincent Muriti as executors. He gave a number of relatively small gifts (including a legacy of $5,000 to the Plaintiff) and gave the residue of his estate to his wife Augustina Alcantara Jvancich (who is now…

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 Kennedy v Jvancich

Details

AGLC: Kennedy v Jvancich [2003] NSWSC 441
Case: [2003] NSWSC 441
Decision Date: 26 May 2003

CaseChat Overview and Summary

In Kennedy v Jvancich, the deceased, Mr Kennedy, had passed away intestate, leaving behind his wife, the defendant, and their adult daughter, the plaintiff. The daughter sought a share of her father's estate, arguing that the deceased had made an oral promise to provide for her financially. All assets were held jointly between Mr Kennedy and his wife, and no probate of the will had been granted. Instead, letters of administration had been issued to another eligible person to facilitate the daughter's claim. The legal issues before the court involved the daughter's entitlement to a share of the estate under the Family Provision Act and the procedural requirement of obtaining separate letters of administration for each claimant.

The court considered whether the daughter's claim under the Family Provision Act was valid, given that all assets were held jointly with the deceased's wife, and whether the wife's competing claim to the estate could be addressed through the existing letters of administration. The court also needed to determine whether separate letters of administration were necessary for each claimant. The court examined the notional estate of the deceased and assessed the financial and material circumstances of the plaintiff to determine her entitlement to a provision from the estate.

The court concluded that the daughter was entitled to a share of the estate under the Family Provision Act, despite the joint holding of assets with her stepmother. The court found that the oral promise made by the deceased was sufficient to establish an expectation of provision. Regarding the procedural aspect, the court held that separate letters of administration were not necessary for each claimant as long as the letters of administration already granted enabled the daughter to make her claim. The court granted the daughter an appropriate share of the estate and directed the distribution accordingly.

Orders