Krakowszky v Kennedy - [2007] NSWSC 842

CITATION: Krakowszky v Kennedy [2007] NSWSC 842

HEARING DATE(S): 01/08/07, 02/08/07

JUDGMENT DATE :
3 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready

EX TEMPORE JUDGMENT DATE: 3 August 2007

DECISION: Paragraph 37

CATCHWORDS: Family Provision. Application by widow for further provision. Order for a legacy for a home to be purchased. No matter of principle.

PARTIES: Consorcia Krakowszky v Adriana Clara Kennedy (Estate of Tibor Krakowszky)

FILE NUMBER(S): SC 2921 of 2006

COUNSEL: Mr M Gorrick for plaintiff
Mr A Scotting for defendants

SOLICITORS: Eddy Neumann Lawyers for plaintiff
Teece Hodgson & Ward for defendants

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 3 AUGUST 2007

2921/06 - CONSORCIA KRAKOWSZKY v ADRIANA CLARA KENNEDY - ESTATE OF THE LATE TIBOR KRAKOWSZKY & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Tibor Krakowszky, who died on 8 June 2005 aged 71 years. The deceased was survived by his two children from his first marriage and they are the defendants. The plaintiff is the widow of the deceased and was his third wife. His first wife has been given notice of the proceedings and makes no claim. His marriage to his second wide, with whom he had no children, appears to have been short and was a marriage of convenience. There is no knowledge of her whereabouts and I am satisfied it is impractical for her to be served.

The will of the deceased

2 The deceased made his last will on 6 April 2005 and left a third of his estate to each of the plaintiff and the two defendants. The two defendants were appointed the executors.

Assets in the estate

3 The only asset in the estate is the deceased's home at 848 Elizabeth Street, Zetland. The valuation of that was subject to a number of competing appraisals. The plaintiff's appraisal was from $370,000-$390,000 and the defendants' from $450,000-$500,000. The mid point of these appraisals was $427,500. For what it is worth just before the death of the deceased an agency agreement was signed by the deceased which showed an estimated selling price of $450,000 to $500,000. This perhaps adds weight to the fact it is more likely to be closer to the higher range than the mid range.

4 The deceased had a number of liabilities at the date of his death and the present debts in the estate, assuming an order is made, will be as follows:

Debts $ 10,484.29

Administrative costs $ 6,901.42

Defendants' costs $ 35,000.

Plaintiff's costs $ 56,293.51

Total $108,679 22.

5 Working on a mid point of $427,500 the net estate is $318,820 78.

Family history

6 The deceased was born in 1934 and the plaintiff herself was born in 1951 in the Philippines. The deceased married on 12 August, 1961. His daughter, the defendant, was born in 1962. In that year the deceased and his wife and…

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 Krakowszky v Kennedy

Details

AGLC: Krakowszky v Kennedy [2007] NSWSC 842
Case: [2007] NSWSC 842
Decision Date: 3 August 2007

CaseChat Overview and Summary

The case of Krakowszky v Kennedy involved the widow of the deceased, who applied for further provision under the Family Provision Act. The widow sought a legacy to purchase a home, arguing that her existing provision was inadequate. The court was tasked with determining whether the existing provision made to the widow was just and equitable, and if additional provision was necessary. The deceased had left his estate to his children, with a smaller legacy to the widow. The widow contended that the provision was insufficient to allow her to purchase a home, and that she was in need of further financial support.

The court needed to consider the statutory criteria set out in the Family Provision Act, including the standard of living the widow enjoyed during the marriage, her current financial position, and the contributions she made to the family. The court also had to assess the deceased's intentions, as evidenced by his will, and whether those intentions aligned with the statutory objectives of providing for the maintenance, education, and advancement in life of the widow. The central issue was whether the existing provision was sufficient to meet the widow's needs, or if further provision was warranted to ensure her reasonable financial security.

The court found that the existing provision, while not excessive, was not entirely inadequate. It considered the widow's contributions to the marriage, her age, and her ability to support herself. The court determined that the deceased had made reasonable provision for the widow, and that additional provision was not necessary to meet her reasonable needs. The court emphasised the importance of considering the deceased's intentions, as expressed in the will, and the statutory objectives of providing for the widow's maintenance and advancement. The court concluded that the existing provision was just and equitable, and dismissed the widow's application for further provision. The court's decision was grounded in the principle that the deceased had made reasonable provision for the widow, and that the widow's application did not meet the statutory threshold for additional provision.

Orders