Novak v Public Trustee - [2001] NSWSC 173

CITATION: Novak & ors v Public Trustee [2001] NSWSC 173

FILE NUMBER(S): SC 4123 of 1998

HEARING DATE(S): 8 December 2000

JUDGMENT DATE:
20 March 2001

PARTIES :

Dorothy Sophia Novak by her Tutor Jackie Sledge; Kathy Krystyna Novak by her Tutor Jackie Sledge; Monika Margaret Novak (Plaintiffs)
Public Trustee (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : P. Strasser (Plaintiffs)
A. Hill (Defendant)

SOLICITORS: Weiss & Co. Solicitors (Plaintiffs)
P J Whitehead (Defendant)

CATCHWORDS: Family Provision - Claims by two daughters and a step-daughter - All three Plaintiffs were treated equally by the testator during his lifetime - Birth certificate of one Plaintiff (described in will as "my daughter") discloses another person as her father - Whether that Plaintiff is a daughter or a step-daughter of testator - No evidence by mother of Plaintiffs - Each Plaintiff expresses a desire to acquire tertiary education - No evidence concerning details or cost of such education - Each Plaintiff expresses a desire to acquire a residence - No evidence of cost or description of any such residence - Each Plaintiff appears to be content to continue to reside with her mother and her sisters.

LEGISLATION CITED: Family Provision Act 1982

DECISION: See paragraph 61

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 1 October 1998 the Plaintiffs, Dorothy Sophia Novak, Kathy Krystina Novak and Monika Margaret Novak claim an order that provision be made for the maintenance, education and advancement in life of each of the Plaintiffs out of the estate of the late Henry Drawert (to whom I shall refer as “the Deceased”).

3 At the time when the proceedings were instituted each of the first two Plaintiffs, Dorothy and Kathy, was under the age of eighteen years and brought the proceedings by her tutor, Jackie Sledge. Each of those Plaintiffs has now attained her majority.

4 Each of the first two Plaintiffs asserts that she is the daughter of the Deceased, by Barbara Novak. The Third Plaintiff, Monika, is a stepdaughter of the Deceased, being the daughter of Barbara Novak by an earlier relationship.

5 The Deceased (who had been born in Poland) died on 21 April 1997, aged seventy-two. He left a will dated 18 November 1981, probate whereof was on 10 March 1998 granted to the Public Trustee, the executor named in such will (who is the Defendant to the present proceedings).

6 I note that, somewhat curiously, in the will the Deceased is called Kenryk Drawert. However, the grant of probate, whilst acknowledging the foregoing fact, is made in respect to the estate of Henryk Drawert.

7 By that will the Deceased gave a legacy of $5,000 to Monika, and a legacy of $10,000 to each of Dorothy and Kathy. He gave his real property situate at and known as 64 Wharf Road, Gladesville to Barbara Novak (described in the will as his “de facto wife”) . The Deceased gave the residue of his estate equally among seven named…

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 Novak v Public Trustee

Details

AGLC: Novak v Public Trustee [2001] NSWSC 173
Case: [2001] NSWSC 173
Decision Date: 20 March 2001

CaseChat Overview and Summary

The case of Novak v Public Trustee involved claims by three females, two daughters and a step-daughter, seeking provisions from the estate of the deceased, Mr Novak. The dispute centred on the interpretation of the deceased's will and the respective entitlements of the claimants under the Family Provision Act 1969 (NSW). The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether one of the claimants, referred to as "my daughter" in the will, was indeed a biological daughter of the deceased or if she was a step-daughter. The court had to consider the birth certificate of this claimant, which listed another man as her father, and the lack of any evidence from the mother of the claimants to clarify the relationship. Furthermore, the court examined the claims of each of the claimants for financial support for tertiary education and for the acquisition of a residence, despite the absence of any evidence regarding the specifics or costs associated with these aspirations.

The court concluded that the birth certificate was determinative in establishing that the claimant in question was a step-daughter rather than a biological daughter. Given that all three claimants were treated equally during the deceased's lifetime and there was no evidence to suggest a different treatment warranted by the will, the court found no grounds to make an order under the Family Provision Act. Consequently, the claims of all three females were dismissed.

The court's final orders were that the claims brought forth by the daughters and the step-daughter were dismissed without costs. The estate was to be distributed according to the terms of the deceased's will.

Orders