Legal Research
Cases
Kouroutis v Kouroutis

Kouroutis v Kouroutis

Case [2023] NSWSC 608 15 June 2023

Family Provision

Discretionary Provision

Estrangement

Proper Maintenance

Education and Advancement

Quantum of Provision

Balancing Financial Needs

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kouroutis v Kouroutis [2023] NSWSC 608
Hearing dates: 10 May 2023
Date of orders: 9 June 2023
Decision date: 15 June 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff awarded further legacy of $118,000, in addition to the legacy provided for in the will. Order that the legacies in the will to the deceased grandchildren be reduced to $20,000 and to the deceased’s great grandchildren to $3,000. Order that the defendant’s costs be paid out of the estate on the indemnity basis. Order that the plaintiff’s costs be paid out of the estate on the ordinary basis.

Catchwords:
SUCCESSION – family provision – claim by one of two children, an adult daughter, for provision from the estate of her deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased’s will leaves his estate substantially to his surviving son, the defendant, and his grandchildren and great grandchildren, providing a legacy of $100,000 to the plaintiff – the plaintiff had a troubled childhood, became involved in drugs and was imprisoned for drug related offences – the plaintiff lived distant from the deceased – the plaintiff’s brother, the defendant, spent more time with the deceased in the final years of his life than the plaintiff – whether the plaintiff was estranged from the deceased – whether the plaintiff’s relationship with the deceased precludes making an award of further provision for the plaintiff out of the deceased’s estate – whether on discretionary grounds the Court should not make further provision for the plaintiff out of the deceased’s estate – whether the plaintiff needs further provision from the deceased’s estate for her proper maintenance, education and advancement in life and if so, what is the appropriate quantum of such provision – how the defendant’s financial needs should be balanced in making any award to the plaintiff.

Legislation Cited:
Family Law Act 1975, s 79
Succession Act 2006, ss 57, 59, 59(1)(c), 65, 66(2)
Uniform Civil Procedure Rules 2005, r 42.4

Cases Cited:
Camernik v Reholc [2012] NSWSC 1537
Christie v Edward [2012] WASC 265
CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CR 98
In the Estate of Lee (1986) 84 FLR 268
James v James [2006] NSWSC 1151
Rathswohl v Court [2021] NSWSC 356
Saunders v Vautier (1841) CR & PH 240
Taylorv Farrugia [2009] NSWSC 801

Texts Cited:
J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia [23-08] – [23-12] (8th ed, 2016, LexisNexis)

Category: Principal judgment
Parties: Plaintiff: Asmina Kouroutis
Defendant: Peter Kouroutis
Representation:
Counsel:
Plaintiff: L. Clarke
Defendant: P. Bolster
Solicitors:

File Number(s): 2022/148600
Publication restriction: No

Judgment

Dimitios Kouroutis (‘the deceased’) died on 25 May 2021 aged 93. He was survived by his two children, the plaintiff Asmina Kouroutis and the defendant, Peter Kouroutis. The plaintiff claims that adequate provision was not made for her in the deceased’s last will. She…

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 Kouroutis v Kouroutis

Details

AGLC: Kouroutis v Kouroutis [2023] NSWSC 608
Case: [2023] NSWSC 608
Decision Date: 15 June 2023

CaseChat Overview and Summary

In the case of Kouroutis v Kouroutis, the deceased's adult daughter, the plaintiff, sought additional provision from the estate of her father, who had passed away, under the provisions of the Succession Act 2006. The deceased's will left the majority of his estate to his surviving son, the defendant, and his descendants, with a legacy of $100,000 allocated to the plaintiff. The plaintiff's childhood was tumultuous, involving drug use and imprisonment for drug-related offenses. She maintained a distant relationship with her father and spent little time with him in the years leading up to his death. The primary legal issues before the court were whether the plaintiff was estranged from the deceased, and if so, whether this estrangement precluded the court from making a discretionary award for her benefit. Additionally, the court had to determine if the plaintiff required further provision for her maintenance, education, and advancement, and if so, what amount would be appropriate.

The court examined the relationship between the plaintiff and the deceased, considering the troubled history of the plaintiff's childhood and her estrangement from her father. The court also weighed the discretionary factors relevant to the Succession Act 2006, including the plaintiff's need for further provision and the financial needs of the defendant. The court concluded that the plaintiff's estrangement did not necessarily preclude a discretionary award, but that her troubled past and the nature of her relationship with the deceased were significant factors in the decision-making process. The court found that the plaintiff did require further provision for her proper maintenance, education, and advancement, and determined the appropriate quantum of such provision, taking into account the financial needs of the defendant.

The reasoning of the court was grounded in the statutory framework provided by the Succession Act 2006 and the discretionary powers afforded to the court in such matters. The court balanced the plaintiff's need for further provision against the deceased's wishes as expressed in his will and the financial situation of the defendant. Ultimately, the court made an order for the estate to provide an additional sum to the plaintiff, which was deemed sufficient for her proper maintenance, education, and advancement in life, while also considering the financial circumstances of the defendant. The court's decision was careful to respect the deceased's testamentary wishes while also addressing the plaintiff's needs in accordance with the statutory provisions.

Orders