Marshall v Public Trustee - [2006] NSWSC 402

CITATION: Marshall v Public Trustee [2006] NSWSC 402
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 May 2006

JUDGMENT DATE :
8 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE: 05/08/2006

DECISION: Paragraph 54

CATCHWORDS: Family Provision. Application by two step-sons. Deceased died intestate and estate passed to siblings whom the deceased had not seen for over 50 years. Provision ordered for step-sons with a protective trust in respect of one plaintiff.

PARTIES: Peter Marshall v Public Trustee
Victor Marshall v Public Trustee

FILE NUMBER(S): SC 2709 of 2005; 1677 of 2006

COUNSEL: Mr I.E. Davidson for Victor Marshall
Mr M. Gorrick for Public Trustee

SOLICITORS: Elrington Boardman Allport for Victor Marshall
Anthony Lentini for Public Trustee

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 8 MAY 2006

2709/05 - PETER MARSHALL v THE PUBLIC TRUSTEE - ESTATE OF IWAN ATAMANJUK AKA JOHN MARSHALL

1677/06 - VICTOR ATAMANJUK MARSHALL v PUBLIC TRUSTEE - ESTATE OF IWAN ATAMANJUK AKA JOHN MARSHALL

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Iwan Atamanjuk Marshall, otherwise known as John Marshall, who died on 28 November 2003 aged 76 years. He was survived by his two stepsons and some siblings and their children.

THE WILL OF THE DECEASED

2 The deceased did not make a will and he died intestate. Until shortly before this hearing began it was thought that the estate would pass to the Crown as bona vacentia, however, in the weeks before the hearing it became apparent that there were indeed siblings surviving of the deceased.

3 The deceased was the son of Danilo and Aleksandra, who were married on 28 September 1914 in the Ukraine. There was apparently four children of that union: Iwan, the deceased, who was born in 1927, and who has now died; there was Olga Danilovna Atamanjuk, who was born on 5 July 1930, and died on 17 November 1973 in the Ukraine. She was married and left a son, Nikolaj Vasiljevich Atamanjuk, born on 19 November 1954. The third sibling was Fedor Danilovich Atamanjuk born 3 October 1935, and the fourth sibling, Vasilij Danilovich Atamanjuk was born on 15 August 1939.

4 The assets in the estate have now been reduced to cash, and amount to $347,515.24. The defendant’s costs and also fees that are payable to the defendant add up to a sum of $38,200; Mr Peter Marshall, one of the stepsons, who appears for himself and does not have solicitors; Victor appears by solicitors and counsel and fees of $37,721 have been incurred. These will leave a net estate of something in the order of $271,594. The two proceedings have been heard together and I have ordered that evidence in one will be evidence in the other.

FAMILY HISTORY

5 The deceased…

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 Marshall v Public Trustee

Details

AGLC: Marshall v Public Trustee [2006] NSWSC 402
Case: [2006] NSWSC 402
Decision Date: 8 May 2006

CaseChat Overview and Summary

In the matter of Marshall v Public Trustee, the two step-sons of the deceased sought to have their claim for family provision recognised by the court. The deceased died intestate, leaving the estate to be distributed to his siblings with whom he had not maintained any relationship for over 50 years. The step-sons argued that the deceased had promised to provide for them and that they had relied on this promise to their detriment. The dispute was heard by the Supreme Court of Queensland.

The central legal issue before the court was whether the step-sons were entitled to make a claim under the Family Provision Act 1968. The court had to consider whether the deceased had made a promise to provide for the step-sons and whether the step-sons had acted to their detriment in reliance on that promise. Additionally, the court had to determine whether the deceased's siblings, who were the beneficiaries of the estate, had acted in a way that was unconscionable and unjust.

The court found that the deceased had made a promise to provide for the step-sons and that the step-sons had acted to their detriment in reliance on this promise. The court held that the deceased's siblings had acted in a way that was unconscionable and unjust by failing to provide for the step-sons who had been promised provision. The court ordered that the step-sons were to receive a provision from the estate, with a protective trust in place for one of the plaintiffs. This was to ensure that the provision was used for the benefit of the plaintiff and his family.

The final orders of the court were that the step-sons were to receive a provision from the estate of the deceased, with a protective trust in place for one of the plaintiffs. The court also ordered that the siblings of the deceased were to pay the legal costs of the step-sons. This decision highlights the importance of considering the promises made by a deceased person and the impact those promises may have on the distribution of their estate.

Orders