Koukias v Koukias
[2012] TASSC 85
•12 December 2012
[2012] TASSC 85
COURT: SUPREME COURT OF TASMANIA
CITATION: Koukias v Koukias [2012] TASSC 85
PARTIES: KOUKIAS, Catherine
v
KOUKIAS, Constantine Leos
FISHER, Marianne Gail
As Executors of The Estate of the late
Vasiliki Koukias (also known as Vicki Koukias)
KOUKIAS, Harry
FILE NO: 390/2009
DELIVERED ON: 12 December 2012
DELIVERED AT: Hobart
HEARING DATE: 5 December 2012
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family provision and maintenance – Principles upon which relief granted – Application of adult children – Adult daughter.
Testators Family Maintenance Act 1912 (Tas), s3(1).
Aust Dig Succession [322]
REPRESENTATION:
Counsel:
Applicant: In person
First Respondents: C M Schokman
Second Respondent: A G Burrows-Cheng
Solicitors:
Applicant: In person
First Respondents: Ogilvie Jennings
Second Respondent: Murdoch Clarke
Judgment Number: [2012] TASSC 85
Number of paragraphs: 13
Serial No 85/2012
File No 390/2009
CATHERINE KOUKIAS v CONSTANTINE LEOS KOUKIAS
MARIANNE GAIL FISHER As Executors of The Estate of the late
Vasiliki Koukias (also known as Vicki Koukias), HARRY KOUKIAS
REASONS FOR JUDGMENT HOLT AsJ
12 December 2012
The applicant is aged 53 years and is one of three adult children of the testatrix, who died a widow on 26 November 2007, leaving an estate having an approximate value of $140,000. The middle child, now aged 51 years, has suffered from schizophrenia for many years, and is in receipt of a disability pension. He is cared for by his younger brother, now aged 47 years, who has looked after him exclusively since the death of his mother. By her will the testatrix bequeathed the sum of $300 to each of two friends, with the balance of her estate to be held in trust for the benefit of the middle son for his life, with the trustees having a discretion to distribute income and capital from the trust fund for the benefit of the middle son. Upon his death any balance left in the trust fund is to be paid to the youngest son.
The applicant has applied for provision out of the estate pursuant to the Testators Family Maintenance Act 1912, s3(1), which is as follows:
"(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
The applicant, being a child of the testatrix, is a person who by virtue of the Act, s3A, may apply for provision. However, s3(1) confers no discretion on the Court unless the applicant first establishes that she has been "left without adequate provision for [her] proper maintenance and support". The assessment of whether the applicant has been left without adequate provision is undertaken "having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty". Singer v Berghouse (1994) 181 CLR 201 at 210. The question is answered as at the date of death. White v Barron (1980) 144 CLR 431 at 437.
On the hearing of the application there were some agreed facts and affidavits were read into evidence. None of the evidence was contested.
There is no evidence as to whether the applicant, at the time of the death of the testatrix, was in employment. She had obtained a diploma of business administration in Canberra in about 2000. She had no dependants. She had an entitlement to receive about $55,000 from her late father's estate, and she had some superannuation investments, now worth about $106,000. I infer that these were her only assets of substance at the date of death of the testatrix because it seems on its face to have been likely to be the case and there is no suggestion from the respondents that she has wasted or disposed of assets. The applicant had a HECS debt owing to the Australian Government, the current repayment figure being about $17,000. At the date of death of the testatrix there were foreseeable possibilities such as the applicant suffering from ill-health or being unemployed. Both of these possibilities have become realities. The applicant suffers from depression and her sole source of income is a disability pension of about $350 per week. She has been receiving that pension for about the last three years. The applicant lives in rented accommodation at Newdegate Street, North Hobart, with her living expenses, including rent, roughly equalling her pension income.
The estate of the testatrix is comprised entirely of her entitlement out of her husband's estate. The husband died in September 2001. His only asset of substance was the family home at Andrew Street, North Hobart. He left no will and so his estate, still undistributed, is to be applied in accordance with the rules as to succession on intestacy contained in the Administration and Probate Act 1935, s44. At the date of death of the testatrix the Andrew Street house, which has still not been sold, was worth about $310,000. Applying s44, and taking into account the debts of the testatrix and her funeral expenses totalling about $6,000, the value of her estate at the time of death, as I have said, was about $140,000.
The applicant and the testatrix did not have a close relationship. The testatrix, following the death of her husband, received legal advice to assist her in endeavouring to obtain a restraint order against the applicant. The applicant did not provide any financial support to the testatrix, and there is no evidence of her giving any support or affection to the testatrix.
The testatrix and the middle son had a close relationship, with the testatrix looking after him until her death. She resisted her husband's efforts to have him institutionalised and to that end, on one occasion, moved out of the family home and took up rented accommodation with him.
The younger son has provided much support to the testatrix and to his brother. Shortly after he finished his studies in Sydney, he abandoned his career in music and returned to Tasmania to provide support for his mother and brother.
As is the case with the applicant, the two sons have an entitlement to receive about $55,000 out of their father's estate. Otherwise both are in poor financial circumstances. Their financial positions are consistent with there being no material change since the death of their mother. The middle son has no assets and no liabilities. His disability pension is about $350 per week. He is dependent on his younger brother for his day-to-day care. When his brother travelled overseas recently, full-time care was arranged at a cost of $900 per week for the duration of the trip, being four weeks. The younger brother receives a carer's payment of about $280 per week. He owns some musical equipment, and household contents which have a value of a little over $20,000. He has about $4,500 in superannuation investments. He has no liabilities. The younger brother's partner, who lives at the Andrew Street house with the applicant's brothers, is a freelance music teacher, having an average income of about $800 per week. He has some musical equipment and a car worth in total about $20,000. He has debts totalling about $30,000.
The onus is on the applicant to demonstrate that she should have the benefit of an order under the Act. In considering the application I respectfully adopt the observations of Kaye J in Leyden v McVeigh [2009] VSC 164 at par[30], namely:
"In determining whether the testator owed the plaintiff a duty to make provision for his maintenance and support in his will, and in determining the extent of such provision, the courts have long recognised the importance of the basic right of a testator to exercise freedom of testamentary disposition in respect of his or her estate. That right is only subordinated where, and to the extent, that the plaintiff can demonstrate that the testator has failed to discharge his moral duty to make provision in the plaintiff’s favour pursuant to Part 4 of the Act. That legislation, however, does not entitle a court to re-write the will of the testator, in order to better accommodate it to the court’s individual view as to how the testator should, or might, have exercised his testamentary power."
I have regard to the small size of the estate, the strength of the claims by the two sons, and the lack of a close relationship between the applicant and the testatrix. With these factors in mind, I am unpersuaded, in all the circumstances, despite the applicant's ill-health, unemployment and modest financial position, that she has been left without adequate provision for her proper maintenance and support. It follows that no discretion to order provision out of the estate in favour of the applicant arises.
The application is dismissed.
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