Kondratenko v Burec - [2003] NSWSC 635

CITATION: Kondratenko v Burec [2003] NSWSC 635

HEARING DATE(S): Wednesday, 16 July 2003

JUDGMENT DATE:
16 July 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1) I order that so much of the home unit situate at and known as 14/8 Edwin Street, Regents Park as may be necessary to meet the legacy referred to in order 2 hereof and the costs referred to in order 3 be designated as notional estate of the late Maria Samoilenko ("the deceased"); (2) I order that the defendant receive a legacy of $110,000, payable out of the notional estate of the deceased, such legacy not to bear interest if paid on or before 16 November 2003, and if not so paid to bear interest at the rate prescribed for unpaid legacies under the Wills, Probate and Administration Act 1898; (3) I order that the costs of the plaintiffs on the indemnity basis and the costs of the defendant on the indemnity basis be paid out of the notional estate of the deceased.

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

PARTIES :
Katherina Kondratenko (First Plaintiff, First Cross-Defendant)
Olga Savell (Second Plaintiff, Second Cross-Defendant)
George Burec (Defendant, Cross-Claimant)

FILE NUMBER(S): SC 5833/02

COUNSEL: R. D. Wilson (for Plaintiffs)
D.L. Rouzoni (for Defendant)

SOLICITORS: Turnbull Hill Lawyers (Plaintiffs)
Waldron Schofield (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Wednesday, 16 July 2003

5833/02 KATHERINA KONDRATENKO & ANOR -v- GEORGE BUREC – ESTATE OF MARIA SAMOILENKO

JUDGMENT

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

2 The proceedings were instituted by summons filed by the plaintiffs Katherina Kondratenko and Olga Savell on 9 December 2002. The plaintiffs are the executors of and the beneficiaries named in the will of the late Maria Samoilenko (to whom I shall refer as “the deceased”).

3 The deceased died on 6 April 2002, aged eighty-two. She left a will dated 23 April 1997, probate whereof was on 19 June 2002 granted to the plaintiffs, who were the executors named in that will. By that will the deceased gave the entirety of her estate to the plaintiffs as tenants in common in equal shares.

4 The deceased was survived by her only child, George Burec (who is the defendant named in the summons). No provision was made for him by the will of the deceased. By the summons the plaintiffs sought an order, pursuant to section 17 of the Family Provision Act, for the shortening of the prescribed period of eighteen months after the death of the deceased in which any claim for provision by the defendant might be instituted.

5 That claim for relief has now been overtaken by events, since the defendant on 20 February 2003 (that is, within ten and a half months after the death of the deceased) filed a cross-claim. That document was in the nature of a pleading, rather than, more appropriately, being a cross-claim merely seeking relief. By the…

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 Kondratenko v Burec

Details

AGLC: Kondratenko v Burec [2003] NSWSC 635
Case: [2003] NSWSC 635
Decision Date: 16 July 2003

CaseChat Overview and Summary

In the case of Kondratenko v Burec, the Supreme Court of New South Wales, Equity Division, was tasked with determining the distribution of the estate of the deceased, Maria Samoilenko, under the Family Provision Act 1982. The plaintiffs, Katherina Kondratenko and Olga Savell, were the executors and beneficiaries of the deceased's will, which left her estate to them as tenants in common. The defendant, George Burec, the deceased's son, filed a cross-claim seeking provision for his maintenance and advancement from the estate. The court had to decide whether the defendant was entitled to any provision from the estate and, if so, the appropriate amount.

The court considered the relationship between the deceased and her son, noting that it was strained, with limited contact over many years. Despite this, the court found that the defendant was entitled to some provision due to his health issues and financial difficulties. The estate's primary asset was a home unit at Regents Park, valued at $195,000. The court determined that the defendant should receive a legacy of $110,000 from the notional estate of the deceased, which would leave approximately $30,000 to $40,000 to be shared between the plaintiffs. This amount was deemed sufficient to provide some benefit to the plaintiffs while ensuring the defendant could address his financial obligations.

The court made specific orders designating part of the Regents Park home unit as the notional estate of the deceased, awarding the defendant a legacy of $110,000, and directing that the costs of the proceedings be paid from the estate. The decision balanced the rights of the plaintiffs, as the chosen beneficiaries of the deceased's will, with the statutory rights of the defendant under the Family Provision Act.

Orders