SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRINCIPLES UPON WHICH RELIEF GRANTED - APPLICATION OF CHILDREN - ADULT SONS
Claim for family provision on an intestacy - estate consisted of a house allegedly purchased by the deceased for the sole use and benefit of his son, the plaintiff - the house was registered in the deceased's name only - the plaintiff brought proceedings against his sister, the first defendant, and his mother, the second defendant, claiming entitlement to the whole of that property - the application was resisted by the second defendant only.
Whether the deceased purchased the house for the sole use and benefit of the plaintiff - whether the plaintiff made out a moral claim to the house - whether the plaintiff adequately provided for by the rules of intestacy - whether the Court should exercise its discretion to make an order for provision in favour of the plaintiff - whether the application should be summarily dismissed due to the small size of the estate.
Held: the plaintiff established a moral claim to the house - it had been a source of pride to the deceased to purchase a house for the plaintiff and thus provide security for him - the house was registered in the name of the deceased only to protect the plaintiff in the event of a relationship break-up - the deceased had arranged for the other members of his family to have access to properties during his lifetime - accordingly, the rules of intestacy made inadequate provision for the plaintiff - the Court should exercise its discretion to make an order for provision - the plaintiff had not engaged in any disentitling conduct - while the estate is small, an effective order for provision can be made on the basis that the other claimants have already been adequately provided for.
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - CIRCUMSTANCES PRECLUDING RELIEF
The second defendant led evidence of a vague agreement between the plaintiff and the first defendant - if successful in his claim for provision, it was loosely agreed that the plaintiff would make a temporary loan to the first defendant.
Whether the Court should refuse to make an order for provision given the existence of this agreement.
Held: the agreement was for a temporary loan and not a gift - it had arisen after the death of the deceased - it did not present a bar to the making of an order for provision for the plaintiff.
[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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AGLC
Kozlowski v Kozlowski [2013] SASC 57
Case
[2013] SASC 57
Decision Date
CaseChat Overview and Summary
Kozlowski v Kozlowski is a case concerning a family provision claim brought by the plaintiff, Stefan Kozlowski, against his sister, Julie Kozlowski, and his mother, Maria Kozlowski, who were the administrators of his deceased father’s estate. Stefan sought entitlement to a house that his father allegedly purchased for his sole use and benefit, which was registered in his father’s name only. The case was heard and determined by the South Australian Supreme Court. The primary legal issues the court had to decide were whether the deceased purchased the house for the sole use and benefit of Stefan, whether Stefan had a moral claim to the house, and whether the rules of intestacy provided adequately for Stefan. The court was also required to determine whether it should exercise its discretion to make an order for provision in Stefan's favour and whether the application should be dismissed due to the small size of the estate.
The court assessed the evidence and concluded that the deceased had indeed made statements to Stefan and Julie that the Mendez Street house was purchased for Stefan's sole benefit and that Maria admitted this to Julie. The court found that it was a source of pride for the deceased to provide security for Stefan by purchasing the house. The court accepted that the house was registered in the deceased's name only to protect Stefan in the event of a relationship breakdown. The deceased had also made arrangements for other family members to have access to properties during his lifetime. Given this, the court determined that the rules of intestacy did not provide adequately for Stefan. The court exercised its discretion to make an order for provision for Stefan, finding that he had not engaged in any conduct that would disqualify him from receiving provision. Despite the estate being small, the court concluded that an effective order for provision could be made, as the other claimants had already been adequately provided for.
The court also addressed the issue of a loan agreement between Stefan and his father, which arose after the father’s death. The court held that the agreement was for a temporary loan and not a gift and that it did not bar the making of an order for provision for Stefan. The court ultimately found in favour of Stefan, granting him an order for provision for the Mendez Street house.
Orders
Orders of the court
Held: the plaintiff established a moral claim to the house - it had been a source of pride to the deceased to purchase a house for the plaintiff and thus provide security for him - the house was registered in the name of the deceased only to protect the plaintiff in the event of a relationship break-up - the deceased had arranged for the other members of his family to have access to properties during his lifetime - accordingly, the rules of intestacy made inadequate provision for the plaintiff - the Court should exercise its discretion to make an order for provision - the plaintiff had not engaged in any disentitling conduct - while the estate is small, an effective order for provision can be made on the basis that the other claimants have already been adequately provided for.
Held: the agreement was for a temporary loan and not a gift - it had arisen after the death of the deceased - it did not present a bar to the making of an order for provision for the plaintiff.
Background
Background to the litigation
SK’s application is resisted by the former wife of the deceased, Mrs Maria Kozlowski, the second defendant (MK). The first defendant, Ms Julie Kozlowski (JK), is the daughter of the deceased and SK’s younger sister. She appeared unrepresented at trial, and was joined to the action solely because she is the Administrator of the estate, having been granted Letters of Administration by this Court on 25 January 2012. The first defendant makes no independent claim for provision, and indeed, supports SK’s application. Background The deceased and MK were married on 27 February 1971. On 7 July 1971, SK was born. JK was born on 30 May 1975. The family lived together for several years, but sometime between 1982 and 1984, MK and the deceased separated. SK went to live with his mother. It is suggested that the deceased was violent towards MK, and that she ceased cohabitation with him for that reason. Despite this, the marriage was never formally dissolved, and MK would regularly care for the deceased, including paying all his bills, buying him clothing, and bringing him home-cooked meals.[1][1] T54, 65 (cross-examination); exhibit SD6, [5.2], [5.5]. In or around 1986, the deceased was involved in a serious motor vehicle accident.[2] Care was rendered by MK on an “around the clock” basis for about 7 months.[3] The deceased eventually received a sizeable lump sum in settlement of his claim for compensation (although the details of this were not furnished to the Court). [2] Exhibits P3, [10]; FD1, [7]; SD6, [5.5].[3] Exhibit SD6, [5.5].The purchase of the Mendez Street house On 27 April 1995, the deceased purchased a house at 21 Mendez Street, Paralowie (the Mendez Street house) for $91,990 using the settlement moneys.[4] The house was registered in the deceased’s name only. SK had left home at age 18 or 19 (between 1989 and 1990), and he then moved into the Mendez Street house at the invitation of the deceased. Part of the foundation of SK’s claim for provision is that this property was purchased by the deceased for his sole use and benefit.[4] Exhibits P3, [10]; SD6, [10]; FD1, [8]. Over the ensuing ten years, SK carried out a number of improvements to the Mendez Street house. The most significant of these consisted of installing:·ducted evaporative air-conditioning, at a cost of $2,716;[5]·roller shutters, at a cost of $3,794;[6] ·a wall heater/gas furnace, at a cost of $1,540;[7] and·a carport, roller door, and a shed, at a cost of $2,958.[8][5] Exhibit P3, [12], [28], p 30.[6] Exhibit P3, [12], [28], p 34.[7] Exhibit P3, [12], [28], p 32.[8] Exhibit P3, [12], [28]. An alarm system, skylight, and pergola were also installed. Other aesthetic improvements were made to the premises and financed by SK, including renovations to the backyard. In 1996, SK married his wife, Mrs Pamela Kozlowski, and on 23 March 2002, their daughter Maykala Kozlowski was born, followed by their son Dylan Kozlowski on 12 April 2004.Other investments in property by the deceased
Evidence
Evidence Before The Court
MK again denied these matters when cross-examined by the first defendant:[32][32] T63-64.QDo you recall us speaking and you confirming to me that the property was bought for Stefan Kozlowski’s benefit solely?A No I deny we ever spoke on that subject. QSo you also deny that telling me, confirming to me that the reason the Mendez property was placed into Marian Kozlowski’s name was to protect Stefan from losing half the value in a relationship breakdown?A I deny it completely yes, deny that completely.…QDo you recall saying to me that you were afraid that Stefan was going to find a gold digger?A No. I never said anything like that.Assessment of the evidence The most important contested issue was whether the deceased made oral representations to SK that the Mendez Street house was purchased for his sole use and benefit. The three parties to this application were the only witnesses to give evidence at trial. I prefer the evidence of SK and JK over that of MK. Both SK and JK were impressive witnesses and performed well under cross-examination. Obviously, SK had an interest to serve, but he did not appear to exaggerate or unduly promote his position. I was particularly impressed with JK. She was adamant that she knew the deceased had stated that the house was for SK and that MK had admitted to her that that was so. I thought that she was genuinely offended that MK was deliberately lying about these matters. I believe JK’s evidence about that and also that she abstained from making a claim herself given that she knew what the deceased’s true wishes were and wanted to abide by them. I thought that MK was an unimpressive witness. I positively disbelieved a number of her answers. I reject her evidence that the deceased had not indicated that he wished SK to have the house and also her denial of admitting as much to JK. I prefer the evidence of SK and JK to that of MK where their evidence conflicts. Conclusions regarding the deceased’s statements I find that the evidence of SK and JK as to statements made by the deceased that the Mendez Street property was purchased for the sole benefit of SK were indeed made by the deceased and that MK admitted as much to JK. I find that it was a great source of pride to the deceased that he was able to buy the Mendez Street house for his son, thereby securing his future to some degree. I find that the Mendez Street house was registered in the name of the deceased to prevent any partner of SK from making a claim to it. These conclusions are supported by the fact that a house was provided for JK during the deceased’s lifetime. MK[33] and JK[34] both gave evidence that the Farr Street house had been purchased for JK to provide her with some security. As MK stated in cross-examination by counsel for SK:[35]Q I understand. The property was going to be registered in Julie’s name, is that right?A Yes, yes. Q So why were you putting in $74,000 of your money?ABecause I wanted Julie to have a secure future because of - and the way my son is very violent and I thought this would be her nest egg that she would have something that if something were to happen to me she wouldn’t have to fight over - the Farr Street property will be hers. Q So the $74,000 that you put in was in effect a gift from you to Julie?A Yes.[33] T49 (cross-examination).[34] T74 (cross-examination).[35] T49.
Decision
Reasons for decision
PEEK J
I thought that MK was an unimpressive witness. I positively disbelieved a number of her answers. I reject her evidence that the deceased had not indicated that he wished SK to have the house and also her denial of admitting as much to JK. I prefer the evidence of SK and JK to that of MK where their evidence conflicts. Conclusions regarding the deceased’s statements I find that the evidence of SK and JK as to statements made by the deceased that the Mendez Street property was purchased for the sole benefit of SK were indeed made by the deceased and that MK admitted as much to JK. I find that it was a great source of pride to the deceased that he was able to buy the Mendez Street house for his son, thereby securing his future to some degree. I find that the Mendez Street house was registered in the name of the deceased to prevent any partner of SK from making a claim to it. These conclusions are supported by the fact that a house was provided for JK during the deceased’s lifetime. MK[33] and JK[34] both gave evidence that the Farr Street house had been purchased for JK to provide her with some security. As MK stated in cross-examination by counsel for SK:[35]Q I understand. The property was going to be registered in Julie’s name, is that right?A Yes, yes. Q So why were you putting in $74,000 of your money?ABecause I wanted Julie to have a secure future because of - and the way my son is very violent and I thought this would be her nest egg that she would have something that if something were to happen to me she wouldn’t have to fight over - the Farr Street property will be hers. Q So the $74,000 that you put in was in effect a gift from you to Julie?A Yes.[33] T49 (cross-examination).[34] T74 (cross-examination).[35] T49. In addition, it was common ground that the Hooper Street, Sansom Street, and Penola Street houses had been purchased by the deceased and MK as joint tenants, and that these properties had passed to MK by virtue of the doctrine of survivorship. It was never denied that the deceased was aware of the legal significance of electing to purchase property as joint tenants rather than tenants in common.[36] The purchase of the Farr Street house was also made by the deceased, MK, and JK on the express understanding that MK would be able to live there for the duration of her life. Of this, MK stated:[37][36] Exhibit SD6, [10.2].[37] T44 (cross-examination).HIS HONOUR …QI will just ask you one other thing about it being a comfortable house. Of the four houses we have talked about, that is to say you have got the other three and then you have got Farr Street to live in anyway?A Yes. Q Is Farr Street the most comfortable of the four?A Yes. CROSS-EXAMINATION Q Why is that?A Just it was my dream home. I consider that the deceased had a positive plan to provide each of the members of his family with a house. His statements to SK were entirely consistent with the action the deceased had taken in relation to the other members of his family. Further, the attribution to him of the statement that the house was registered in his name for the purpose of avoiding any claim to it by a partner of SK appears to me to be true. It is not inconsistent with the deceased having been left by his own wife some years earlier but I think it mainly reflected a prudent attitude held by the deceased.