Kohari v NSW Trustee & Guardian - [2017] NSWSC 1080

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kohari v NSW Trustee & Guardian (No 2) [2017] NSWSC 1080
Hearing dates: 17, 18 July 2017
Date of orders: 18 August 2017
Decision date: 18 August 2017
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
Plaintiff to receive legacy of $100,000 from estate of deceased

Catchwords: Succession – family provision – applicant son of deceased – adequacy of provision – modest estate – minimum adequate provision for widow – incorrect denial of paternity – “bare paternity” – deceased having obtained family provision from parent’s estate – independent and mature adult applicant – provision which ought to be made – relevance of financial “needs”
Legislation Cited: Succession Act 2006 (NSW), ss 57, 59, 60, 100
Cases Cited: Butler v Morris [2012] NSWSC 748
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Gorton v Parks (1989) 17 NSWLR 1
Henry v Hancock [2016] NSWSC 71
Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Nicholls v Hall [2007] NSWCA 356
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Underwood v Gaudron [2015] NSWCA 269
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Robert Kohari (Plaintiff)
NSW Trustee & Guardian (Defendant)
Representation:
Counsel:
F Austin (Plaintiff)
D Stewart (Defendant)
Solicitors:
Gerard Malouf & Partners (Plaintiff)
NSW Trustee & Guardian (Defendant)

File Number(s): 2015/152834
Publication restriction: Nil

Judgment

This is an application for a family provision order from the estate of the late Paul Kohari, who died in August 2014. The application is made by the plaintiff, Robert Kohari, who is a son of the deceased. Without disrespect, I will refer to the parties other than the deceased by their Christian names.
Paul Kohari was born in Romania in August 1947. He migrated to Australia with his parents in November 1964 at the age of 16.
In December 1974, at the age of 27, the deceased married Julie-ann Darhy (“Julie”). She already had a son, David, born as a result of a previous relationship. David later took the Kohari name as his surname. The deceased and Julie had two children of their own, Joseph Kohari, born in September 1975, and the plaintiff, Robert Kohari, born in December 1978.
In late 1980, the deceased and Julie separated. At the time, Robert was about 18 months old. The deceased and Julie were divorced and their divorce was eventually finalised in about 1989. The deceased had no contact with Robert for the rest of his life. The deceased believed that Julie was unfaithful to him during their marriage and that Robert was not his son. There is an issue as to when the deceased formed that belief, which is discussed in more detail below.
In about 1988, the deceased formed a relationship…

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: [2017] NSWSC 1080
Decision Date: 18 August 2017

CaseChat Overview and Summary

Kohari v NSW Trustee & Guardian is a case involving the son of a deceased person who sought family provision from the estate. The son argued that the provisions made for him were inadequate, particularly given the modest size of the estate. The widow of the deceased, who was the administrator of the estate, contested the application. The case was heard in the Supreme Court of New South Wales.

The legal issues the court had to address included determining whether the provisions made for the son were adequate and what the appropriate amount should be, given the son's claim that he was denied paternity and that the deceased had obtained family provision from his parent's estate. The court also considered whether the son, as an independent and mature adult, had financial needs that needed to be met and how this should influence the provision made.

The court found that the son's claim of "bare paternity" was unfounded, and the provisions made for him were adequate. The son, being an independent and mature adult, was not entitled to additional financial support. The court considered the widow's entitlement to a minimum adequate provision and determined that this should be prioritised. Ultimately, the court dismissed the son's application, holding that the provisions made for him were sufficient. The court emphasised that the financial needs of the applicant should be weighed against the entitlements of other beneficiaries, particularly the widow in this case.

Orders