KOCINI v KAMBANAROS

Case [2022] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

KOCINI v KAMBANAROS

[2022] SASC 25

Judgment of Judge Dart a Master of the Supreme Court  

SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY - CIRCUMSTANCES TO BE CONSIDERED

Applicant a daughter of the deceased - deceased left two wills - one will dealt with assets in Greece - the other will dealt with Australian assets - applicant left an equal share with her three siblings of the Greek assets - in Australia all of the assets went to a brother of the applicant - was the applicant left without adequate provision - applicant comfortably off financially - the jurisdictional question not satisfied by the applicant.

Held:  Application dismissed.

Inheritance (Family Provision) Act 1972 (SA) s 7, referred to.
Banks v Goodfellow (1870) 5 LR QB 549; Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Bowyer v Wood (2007) 99 SASR 190; C Convenience Stores Pty Ltd v Wayville Plaza Retirement Pty Ltd & Ors [2012] SASC 14; Coates v National Trustees Executors and Agency Company Limited and Another (1956) 95 CLR 494; Collicoat v McMillan (1999] 3 VR 803; Delaney v Jones [2008] NSWSC 229; Hynard v Gavros [2014] SASC 42; Re Allen (deceased) [1922] NZLR 218; Re Greene’s Estate (1930) 25 Tas. L.R. 15; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin and Others (2008) 221 CLR 191; White v Barron and Another (1979) 144 CLR 431; Worladge and Another v Doddridge and Others (1957) 97 CLR 1, considered.

KOCINI v KAMBANAROS

  1. This matter involves a claim made pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”) in respect of the deceased estate of Ms Nafsika Kambanaros.  The claim is dismissed.

    Background

  2. The applicant is a 70 year-old married woman.  She is one of five children of the deceased.  One of her siblings died as a young child.  The deceased died on 19 April 2017.  She, and all of her children, were born in Greece.  The family emigrated to Australia when the applicant and her siblings were young children.  Their father died in 1981. 

  3. The deceased left two wills.  One will dealt with assets in Greece and the other with assets in South Australia.  The deceased was the owner of quite a few parcels of land in Greece.  In the Greek will she has tried to treat each of her four surviving children equally.  She did this by making both individual gifts of land and joint gifts of land to her children.

  4. So far as joint gifts are concerned, the applicant received an equal share with her three siblings in the following:

    1.     A stone house at Pyrgos.

    2.     A block of land (four acres) at Niaria, Pyrgos.

    3.     A block of land (five acres) at Siafia-Koufopetra Elaicohri.

  5. The respondent gave evidence about the value of those three blocks of land.  The applicant did not call any evidence in opposition to that valuation.…

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AGLC
KOCINI v KAMBANAROS [2022] SASC 25
Case
[2022] SASC 25
Decision Date

CaseChat Overview and Summary

The case of KOCINI v KAMBANAROS involves a claim made under the Inheritance (Family Provision) Act 1972 in respect of the deceased estate of Ms Nafsika Kambanaros. The applicant, a 70-year-old woman and one of the deceased's four surviving children, claims she has not been left with adequate provision for her proper maintenance, education, or advancement in life. The legal issues at hand revolve around whether the applicant has indeed been left without adequate provision and, if so, what would constitute an appropriate provision under the Act.

The court examined the applicant's financial situation, considering her receipt of land in Greece valued at approximately AUD$350,000, and her sale of a one-quarter interest in a property at Prospect in 2015 for $110,000, which she used to build properties at Park Terrace Enfield. Additionally, the court noted the applicant's joint ownership of a taxi cab licence valued at approximately $50,000 and bank accounts with a combined credit balance of about $135,000. The court reasoned that the applicant appears to be well-positioned to support herself comfortably and there was no indication she would not continue to be so. The court found no failure by the deceased to make adequate provision for the applicant and dismissed the claim.

In light of the above, the court dismissed the application, finding that the applicant was adequately provided for under the terms of the will.

Orders

Orders of the court

Held: Application dismissed.

Background

Background to the litigation

This matter involves a claim made pursuant to the Inheritance (Family Provision) Act 1972 (“the Act”) in respect of the deceased estate of Ms Nafsika Kambanaros. The claim is dismissed.Background The applicant is a 70 year-old married woman. She is one of five children of the deceased. One of her siblings died as a young child. The deceased died on 19 April 2017. She, and all of her children, were born in Greece. The family emigrated to Australia when the applicant and her siblings were young children. Their father died in 1981. The deceased left two wills. One will dealt with assets in Greece and the other with assets in South Australia. The deceased was the owner of quite a few parcels of land in Greece. In the Greek will she has tried to treat each of her four surviving children equally. She did this by making both individual gifts of land and joint gifts of land to her children. So far as joint gifts are concerned, the applicant received an equal share with her three siblings in the following:1. A stone house at Pyrgos.2. A block of land (four acres) at Niaria, Pyrgos.3. A block of land (five acres) at Siafia-Koufopetra Elaicohri. The respondent gave evidence about the value of those three blocks of land. The applicant did not call any evidence in opposition to that valuation. I accept the evidence of the respondent. Jointly the three parcels of land were said to be worth approximately €486,332. A quarter share of that is €121,583. At the time of trial, the quarter share was said to have a value of approximately AUD$193,000. Separately, the deceased gave two parcels of land to the applicant outright. The first was at Gontinia and is about 2,045m2 in size. The second is at Kato Aloni and about 1,276m2. It appears that nearly all of the land mentioned above is planted to olives. The land is in the region of Messenia, in the south-west of Greece. It is a renowned olive-growing area. The value of the two pieces of land gifted outright to the applicant is hotly in dispute. Two valuers gave evidence on video-link from Greece about the value of the land. Their valuations differ significantly. For reasons that will be discussed below, I do not regard it as necessary for the resolution of this matter to determine the precise value of the two portions of land. The complaint of the applicant is that she was left nothing in the Australian will. She regards this as unfair. She submitted to the Court that she should receive a 25% interest in the Australian assets. The principal asset is a house at Buller Street, Prospect, valued at about $630,000. The house at Prospect was left to her brother, the respondent. The legal issue The application is based on statute. The first such Act in South Australia was passed in 1918.[1] The provisions in the present Act are worded almost identically to the original Act. In Hynard v Gavros[2] I set out the relevant principles for determining a claim such as this. They are as follows:[3][1] Testator’s Family Maintenance Act No 1327 of 1918.[2] [2014] SASC 42.[3] Hynard v Gavros [2014] SASC 42 at [29]-[34].The plaintiff’s application is made pursuant to s 7 of the Act. That section provides as follows:7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person(1)Where—(a)a person has died domiciled in the State or owning real or personal property in the State; and(b)by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.(2)Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.(3)The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.(4)The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.(5)If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit.(6)In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.There is now more than 100 years of authority in relation to family provisions matters. The principles to be applied in determining a claim are well‑established and beyond any reasonable dispute. They may be stated as follows:1.The statute requires the Court to carry out a two-staged process. The first stage requires a determination of whether the applicant has been left without adequate provision. If that is decided in the affirmative, the Court is then required to determine what would be an appropriate provision.[4][4] Singer v Berghouse (1994) 181 CLR 201 at 208.2.The legislation is remedial in character and is to be construed to give the most complete remedy which the phraseology will permit.[5][5] Worladge and Another v Doddridge and Others (1957) 97 CLR 1 at 9.3.The words “adequate” and “proper” are relative. The word “proper” connotes something different from the word “adequate”. It connotes an ethical position as to what allowance should be made. Adequate provision for proper maintenance is not limited to providing what is sufficient for basic subsistence.[6][6] Bowyer v Wood (2007) 99 SASR 190 at 201.4.The time for considering whether the applicant has been left without adequate provision is the date of the death of the testator.[7] [7] Coates v National Trustees Executors and Agency Company Limited and Another (1956) 95 CLR 494.5.Consideration of moral claims and moral duty are useful as a guide to the meaning of the statute and they connect the general value-laden language of the statute to community standards which give it practical meaning.[8][8] Vigolo v Bostin and Others (2008) 221 CLR 191 at 204.6.The provision which the Court may properly make is that which a just and wise testator would have thought it his or her moral duty to make had he or she been fully aware of all the relevant circumstances.[9]At first blush it might be thought that s 7(1) of the Act is setting out an economic test by which it is determined whether an applicant has adequate provision for her proper maintenance, education or advancement in life. Early on there was some support for treating the provision as simply being an economic provision concerned with whether sufficient provision for the reasonable maintenance and support of an applicant had been provided.[10] However, ultimately it is the moral or ethical approach that has been accepted as the correct approach. That approach is made necessary by the use of the word “proper” in the statute. In Bosch v Perpetual Trustee Co Ltd[11] the Privy Council made clear that an economic approach to the interpretation of the section was not the correct approach. It found that a judgment as to the maintenance which is “proper” for a particular applicant in the circumstances of a case is necessarily a judgment as to what maintenance the applicant ought to have in the circumstances and not what he or she needs.[12]The moral approach was approved by the High Court in Worladge and Another v Doddridge and Others[13] where Kitto J said:What is proper is to be tested by reference to the provision which in all the circumstances of a case satisfies but does not exceed the requirements of moral justice in regard to those particular purposes. [14]The purposes, of course, were provision for the proper maintenance, education and advancement in life.What the Court has to determine is what the moral duty of the testator was at the time of her death. In determining whether or not an applicant has been left without proper provision it is necessary to have regard, to some extent, to what a proper provision would be. As Mason J said in White v Barron and Another[15] it is slightly artificial to say that the first test has to be determined before the second test, because the two tasks which face a judge are similar. [9] Re Allen (deceased) [1922] NZLR 218 at 220.[10] Re Greene’s Estate (1930) 25 Tas. L.R. 15.[11] [1938] AC 463.[12] Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478.[13] (1957) 97 CLR 1.[14] Worladge and Another v Doddridge and Others (1957) 97 CLR 1 at 18.[15] (1979) 144 CLR 431 at 443.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Separately, the applicant and her husband have a number of bank accounts. Notably, as at the time of trial, there was a bank account in the name of her husband with a credit balance of about $135,000. They also own a taxi cab licence valued at approximately $50,000. The taxi cab licence produces a return of approximately $200 per week. The joint income of the applicant and her husband in the financial year ending 2020 was approximately $55,000. Consideration The test provided for in the legislation is not simply economic. Nonetheless, it does involve a consideration of the financial position of the applicant and, to some extent, other family members. The test has become, what would a wise and just testator think was her obligation in respect of the applicant, having regard to all the circumstances of the case. That includes the testator’s understanding of the financial position of the applicant and of the family history. Given that testamentary freedom is an important consideration, it is only appropriate to intervene where there has been a failure in relation to the moral duty and then, only to the extent necessary to rectify that failure. I note in that regard the comments of Ormiston J in Collicoat v McMillan:[22]Those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support.[22] (1999] 3 VR 803 at [47]. I regard the quote as applicable to the facts of this matter. The applicant appears well-positioned to be able to support herself comfortably, and there is no reason to suspect that will not continue into the future. In the Greek will she was treated equally with her siblings by her mother and received land valued at approximately $350,000. It is also worth noting that, when her father died in 1981, she received a one quarter interest in a property at Prospect which belonged to her father. In 2015 she sold that interest to the respondent and received $110,000. Those funds were applied toward the construction of the properties at Park Terrace Enfield. The fact that the applicant thinks it is not fair that she did not share equally in the Australian estate is not to the point. I am not satisfied that there was any failure by the deceased to make adequate provision for the applicant. The claim is dismissed.