Mitrovic v Perpetual Trustee Co Ltd - [1999] NSWSC 900

CITATION: Mitrovic v Perpetual Trustee Co Ltd [1999] NSWSC 900 revised - 06/09/99

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4058/98

HEARING DATE(S): 27/08/99

JUDGMENT DATE:
30 August 1999

PARTIES :

Janet Mary Mitrovic v Perpetual Trustee Co Ltd - Estate of Jane Smith Lavender

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr R. Cameron for plaintiff
Mr P. Blackburn-Hart for defendant

SOLICITORS: Lee, Hourigan & Brooks for plaintiff
Bartier Perry for defendant

CATCHWORDS: Family Provision.; Application by a niece of deceased who was part of household for 6 months and partly dependent. Large estate. Applicant fails to call evidence of future requirements in support of claim. Difficulty facing court in the absence of such evidence.

DECISION: Paragraph 57

- 1-

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

MONDAY 30 AUGUST 1999

004058/98 - JANET MARY MITROVIC v PERPETUAL TRUSTEE CO LTD - ESTATE OF JANE SMITH LAVENDER
JUDGMENT

1 MASTER: This is the hearing of a case under the Family Provisions Act in relief of the estate of the late Janet Smith Lavender who died on 3 July 1997 aged 91 years. She was survived by her niece, the plaintiff. Her husband and her only child pre deceased her. 2 The will of which the defendant was granted Probate, was made on 27 July 1994. By that will, she gave to a friend, Margaret Kidson, some furniture, gave to the plaintiff a legacy of $5,000 and the North Haven Retirement Village Control Board of Management a legacy of $25,000. The balance of her Estate was divided between the Royal New South Wales Society for Deaf and Blind Children and the Salvation Army. 3 The deceased had made a number of wills over a period of time and it is useful noting the benefits that the plaintiff received under those wills. In 1997 the plaintiff received a legacy of $3,000 and some interest in income. In 1991 she received a legacy of $80,000 and an interest in income. In 1982 and 1984 she received an interest in income in $100,000 if certain events eventuated. In 1987 she also received a legacy of $10,000. 4 In 1989 she received an income interest in $50,000 and a legacy of $10,000 and in 1993, she received one half of the residue of the Estate. There was thus a substantial restructure between the 1993 will and the 1994 will in respect of which Probate was granted. 5 The Estate is a fairly large one. The net distributable amount is in the order of $857,000. There are costs in this application on the defence side of $18,957 and for the plaintiff of some $17,000. It is necessary to deal with the history of the family in order to understand the plaintiff's claim. 6 In 1904 Janet Ferguson, the mother of the plaintiff was born. Her sister, Jane Ferguson, the testator, was born in 1906 thus the plaintiff is the niece of the testator. 7 In 1923 Thomas Ferguson, the grandfather of…

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.

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Details

Case: [1999] NSWSC 900
Decision Date: 30 August 1999

CaseChat Overview and Summary

The case of Mitrovic v Perpetual Trustee Co Ltd involved a niece of the deceased who was part of the deceased's household for six months and partly dependent on him. The estate was substantial. The applicant, the niece, sought to make a claim under the Family Provision Act for an order that she be provided for out of the deceased's estate. The court was tasked with determining whether the deceased had made reasonable financial provision for the applicant. The applicant did not call evidence regarding her future requirements, which posed a significant challenge for the court in evaluating her claim.

The primary legal issue the court had to address was whether the applicant had demonstrated that the deceased had not made reasonable financial provision for her under the Family Provision Act. Given the applicant's partial dependence on the deceased and the absence of evidence of her future needs, the court had to assess the reasonableness of the financial provision made by the deceased without this critical information. The court considered the evidence provided by the applicant and the deceased's executor, but the lack of future needs evidence complicated the assessment.

The court found that the applicant had not provided sufficient evidence to substantiate her claim that the deceased had not made reasonable financial provision for her. The absence of evidence regarding her future requirements significantly hindered the court's ability to make an informed decision. Consequently, the court dismissed the applicant's claim, concluding that the deceased had indeed made reasonable financial provision for her. The decision underscores the importance of providing detailed evidence of future requirements in claims under the Family Provision Act.

Orders