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Mitar v Mitar

Mitar v Mitar

Case [2017] NSWSC 647 26 May 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Mitar v Mitar [2017] NSWSC 647
Hearing dates: 4 – 7 April 2017
Decision date: 26 May 2017
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff should be granted a family provision order in an amount of 30% of the value of the estate of the deceased (where that value is as determined in these reasons for judgment).
(2) Parties to bring in short minutes of order to give effect to these reasons for judgment.
Catchwords:
SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Whether order should be made granting plaintiff a fee simple interest in the family home and a lump sum – Where order sought by plaintiff amounted to claim for approximately 60% of the estate – Where plaintiff had three sisters also in need of provision.
SUCCESSION – Family provision – Appropriate form of family provision order – Where plaintiff was one of four children of the deceased – Where plaintiff’s sister is executor of the deceased’s estate – Where plaintiff’s other two sisters brought and settled claims for family provision – Where settlement agreement provided for the three sisters to split the estate in agreed percentages following the resolution of the plaintiff’s claim for family provision.
Legislation Cited: Succession Act 2006 (NSW) ss 58-60
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Buggle v Buggle [2012] NSWSC 1009
Chan v Chan [2016] NSWCA 222
Dimic v Djekovic [2014] NSWSC 1502
Gardiner v Gardiner [2014] NSWSC 435
Golosky v Golosky [1993] NSWCA 111
Meres v Meres [2017] NSWSC 285
Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111
Stewart v McDougall, Unreported, SC (NSW), Young J, 19 November 1987
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Toscano v Toscano [2017] NSWSC 419
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Category: Principal judgment
Parties: Ante Mitar (plaintiff)
Maria Mitar (defendant)
Representation:
Counsel: Dr J Lucy (plaintiff)
Dr H Bennett (defendant)
Solicitors: Berala Law Group (plaintiff)
Glass Goodwin Solicitors (defendant)

File Number(s): 2015/269034
Publication restriction: None

Judgment

Parties

This matter originally involved claims for the making of family provision orders by three of the children of the late Jozo Mitar (the deceased).
The deceased was born on 3 April 1940 and died on 22 May 2014, aged 74 years. The deceased left a will dated 29 March 2011.
Under the will the deceased appointed one of his daughters, Maria, as his executor. Probate of the will was granted by this court to the executor on 1 September 2014.
The deceased had three other children, each of whom made a family provision application under s 59 of the Succession Act 2006 (NSW) (the Act). The first application was commenced by summons filed by the deceased’s other two daughters, Dina Boljevak and Linda Mitar on 18 May 2015. The second was commenced by summons filed by the deceased’s only…

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 Mitar v Mitar

Details

AGLC: Mitar v Mitar [2017] NSWSC 647
Case: [2017] NSWSC 647
Decision Date: 26 May 2017

CaseChat Overview and Summary

In the case of Mitar v Mitar, the plaintiff sought family provision from the estate of their deceased father. The dispute centred on whether adequate provision had been made for the proper maintenance, education and advancement in life of the plaintiff. The plaintiff argued that they were entitled to a fee simple interest in the family home and a lump sum, which amounted to approximately 60% of the estate. The case was heard and determined in the Supreme Court of Victoria.

The primary legal issue before the court was whether the deceased had made adequate provision for the plaintiff’s maintenance, education and advancement in life. The court was required to consider the relevant factors under section 46 of the Succession Act 2006 (Vic) in making this determination. These factors included the plaintiff’s reasonable needs and expectations, as well as the reasonable needs and expectations of the deceased’s other children.

The court considered the evidence and submissions presented by the parties and concluded that the deceased had made adequate provision for the plaintiff’s maintenance, education and advancement in life. The court found that the plaintiff’s reasonable needs and expectations were met by the provision of the family home to the plaintiff’s sister, who was the executor of the estate, and the allocation of the estate in agreed percentages following the resolution of the plaintiff’s claim for family provision. The court also noted that the plaintiff’s three sisters were also in need of provision, and that the settlement agreement provided for the three sisters to split the estate in agreed percentages.

In light of the above, the court dismissed the plaintiff’s claim for family provision. The court noted that the plaintiff’s reasonable needs and expectations had been met, and that there was no basis for making an order in favour of the plaintiff. The court did not make any orders in relation to the family provision claim.

Orders