Lioutas v Papasoulis - [2018] NSWSC 352

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Lioutas; Lioutas v Papasoulis [2018] NSWSC 352
Hearing dates: 12 – 16 March 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Lindsay J
Decision:
ORDER that an adult son, in competition with two siblings’ claims on the bounty of the deceased, be granted family provision relief in respect of the estate of their late mother.

Catchwords: SUCCESSION – Family provision and maintenance – Claim by adult son of deceased mother – Competing claims, on bounty of deceased, by two adult siblings – Jurisdiction to make family provision order conceded – Assessment of proper provision.
Legislation Cited: Corporations Act 2001 Cth
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656
Bosch v Perpetual Trustee Company Ltd [1938] AC 463
Camernik v Reholc [2012] NSWSC 1537
Goodman v Windeyer (1980) 144 CLR 490
In re Allen [1922] NZLR 218
Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9
Scales Case (1962) 17 CLR 9
Sgro v Thompson [2017] NSWCA 327
Smith v Johnson [2015] NSWCA 297
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Peter Lioutas
First Defendant: Afroditi Papasoulis
Second Defendant: Vasilios (“Bill”) Lioutas
Representation:
Counsel:
Plaintiff: A Blank
First Defendant: G Jauncey
Second Defendant: MM Pringle
Solicitors:
Plaintiff: KP Lawyers & Barristers
First Defendant: Macquarie Lawyers
Second Defendant: CMM Quay Legal

File Number(s): 2016/00058262

Judgment

INTRODUCTION

These proceedings concern an application made by an adult son for family provision relief (under Chapter 3 of the Succession Act 2006 NSW) from the deceased estate of his elderly mother, in competition with claims on the bounty of the deceased by his siblings: a twin sister and their younger brother. All three siblings are aged in their sixties.

THE DECEASED, HER ESTATE AND FAMILY CONNECTIONS

Dimitra Lioutas (“the deceased”) died on 1 May 2015, aged 91 years, leaving a will dated 26 April 2007, probate of which was granted to her daughter (the first defendant), the executrix named in the will, on 18 November 2015. Her net distributable estate (based on current, agreed valuations)has an estimated value of about $3.8 million.
The deceased was married once only, to Christos Lioutas, now deceased.
There were three children of the marriage, namely:

a son, Peter (the plaintiff), born in July 1950 and now aged 67 years.

a daughter, Afroditi (Peter’s twin), the first defendant.

a son, Bill (the second defendant), born in March 1953 and now aged 65 years.

The deceased’s husband predeceased her. He died on 27 July 1997, leaving a will dated 13 May 1994, probate of which was granted to her (Dimitra) on 24 December 1998.
Having survived her husband, Dimitra (in these proceedings, the deceased) became his sole beneficiary. Had she predeceased him, each of their children would have received a particular parcel of land, with the boys named as residuary beneficiaries in equal shares.
Under the will of 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 Lioutas v Papasoulis

Details

AGLC: Lioutas v Papasoulis [2018] NSWSC 352
Case: [2018] NSWSC 352
Decision Date: 21 March 2018

CaseChat Overview and Summary

The case of Lioutas v Papasoulis involved an application for family provision made by an adult son against his deceased mother's estate. The son, Lioutas, sought a larger share of the estate, contending that the provisions made under the mother's will were inadequate. The counter-claim was made by the deceased's other son, Papasoulis, who argued that the provisions made in the will were adequate and that any additional claims by Lioutas should be rejected. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was the assessment of the deceased's estate to determine whether the provisions made for Lioutas were adequate and whether there were grounds to make a family provision order. The court needed to consider the competing claims of both sons, the financial circumstances of each, and the reasonable financial needs and expectations of the applicant in light of the deceased's bounty.

The court found that the deceased's will did not provide adequate financial provision for Lioutas. It was determined that Lioutas had a reasonable expectation of a greater share in the estate, taking into account his contributions to the family and the mother's wishes. The court found that Papasoulis's claim did not override Lioutas's right to make an application under the Family Provision Act. The court ultimately concluded that Lioutas's claim was justified and ordered that he receive an additional share of the estate to meet his reasonable financial needs and expectations.

The final orders of the court were that Lioutas was to receive a specified additional amount from his deceased mother's estate, to be paid within a set timeframe. This decision recognised Lioutas's right to make a claim under the Family Provision Act and adjusted the distribution of the estate to better reflect the deceased's intentions and the reasonable expectations of her children.

Orders