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Megerditchian v Khatchadourian

Megerditchian v Khatchadourian

Case [2019] NSWSC 1870 20 December 2019

Family Provision

Notional Estate

Reasonable Expectations

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Megerditchian v Khatchadourian [2019] NSWSC 1870
Hearing dates: 18, 19 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
See [213]-[215]

Catchwords:
SUCCESSION — Family provision — application for provision – whether plaintiff failed to make full and proper disclosure of her financial position – whether non-disclosure a “jurisdictional issue”.

SUCCESSION — Family provision — application for provision from potential notional estate consisting of half share of family home – claim by adult child of retirement age – plaintiff’s dealings with her own children concerning accommodation not clear on the evidence – plaintiff estranged from deceased but cause of estrangement not clear on the evidence – plaintiff receiving legacy of $10,000 – whether proper provision– what provision ought to be made.
SUCCESSION — Family provision — application for provision from notional estate – whether appropriate to designate property as notional estate – whether proposed designation would interfere with defendant’s “reasonable expectations”.
Legislation Cited: Succession Act 2006 (NSW), ss 59, 60, 87, 89 and 91
UCPR, r 7.10(2)(b)
Cases Cited: Anderson v Hill [2017] NSWSC 1149
Forgeard v Shanahan (1994) 35 NSWLR 206; (1994) NSW ConvR 55-723
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) CLR 134; [1979] HCA 2
Ikonomou v Panagopoulos [2017] NSWSC 1805
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kohari v NSW Trustee & Guardian [2017] NSWSC 1080
McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82
Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Texts Cited: J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (8th edition, 2016, LexisNexis Butterworths) at [23-15]
Category: Principal judgment
Parties: Vanoush Megerditchian (Plaintiff)
Hampartzoum Khatchadourian (Defendant)
Representation:
Counsel:
V R Gray (Plaintiff)
C Wood SC / P Muscat (Defendant)
Solicitors:
Corporate & Civil Legal (Plaintiff)
Shad Partners (Defendant)

File Number(s): 2018/218533
Publication restriction: Nil.

Judgment (issued 27 December 2019)

This is a family provision application under the Succession Act2006 (NSW). The plaintiff, Vanoush Megerditchian, seeks provision out of the estate of her late father, Souren Mihran Khatchik Khatchadourian, who died in May 2018 at the age of 91. For convenience and without disrespect I will refer to the parties and the members of their families, apart from the deceased, by their Christian names.
The deceased was married to Archaluis Khatchadourian, who predeceased him. They had two children, both of whom are still alive. The elder is their son Hampartzoum Khatchadourian. The younger is their daughter Vanoush.
The deceased’s last will was made in 2007. Under that will, the deceased left a legacy of $10,000 to Vanoush and the rest of his estate to Hampartzoum. Hampartzoum was appointed as the executor.
At the time he made his will, the deceased’s major asset was the family home, a house in…

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 Megerditchian v Khatchadourian

Details

AGLC: Megerditchian v Khatchadourian [2019] NSWSC 1870
Case: [2019] NSWSC 1870
Decision Date: 20 December 2019

CaseChat Overview and Summary

The matter of Megerditchian v Khatchadourian involved the plaintiff, an adult child of retirement age, seeking a family provision order against the defendant, the executor of her father's estate. The deceased had left a will that did not provide for the plaintiff, who was estranged from him. The plaintiff sought provision from a potential notional estate consisting of half the share in the family home. The court was tasked with determining whether the plaintiff had failed to make full and proper disclosure of her financial position and whether such non-disclosure constituted a jurisdictional issue. Additionally, the court had to assess whether it was appropriate to designate the property as a notional estate and whether such a designation would interfere with the defendant's reasonable expectations.

The court examined the plaintiff's dealings with her own children concerning accommodation, noting that the evidence was unclear on this matter. It also considered the reasons for the plaintiff's estrangement from the deceased, which were not clearly established. The plaintiff received a legacy of $10,000 from the estate, and the court needed to determine if this constituted proper provision and what provision, if any, should be made. The court had to weigh the plaintiff's financial position, her contributions to the deceased, and the circumstances of her estrangement against the overall estate and the wishes of the deceased as expressed in the will.

In its reasoning, the court found that the plaintiff had not made full and proper disclosure of her financial position, but this non-disclosure was not a jurisdictional issue. The court concluded that it was appropriate to designate the property as a notional estate, and this designation would not interfere with the defendant's reasonable expectations. The court ordered that the plaintiff receive a provision of $125,000 from the notional estate, reflecting her needs and the overall circumstances of the case. The court considered the plaintiff's age, her estrangement from the deceased, and her receipt of the $10,000 legacy in reaching its decision.

Orders