GOLDI POGORELIC MILOVAN ALEXANDER BANOVICH ELIZABETH MARWICK VANESSA KATHERINE POGORELIC
Catchwords:
Succession Application by widow under Inheritance (Family and Dependants Provision) Act 1972 (WA) for provision from Estate of late husband Whether entitled to matrimonial home Relevance of lifestyle during marriage to proper provision from Estate Whether pension entitlement a relevant factor Turns on own facts
CITATION : POGORELIC -v- BANOVICH & ORS [2007] WASC 45 CORAM : MASTER NEWNES HEARD : 22, 23 NOVEMBER & 6 DECEMBER 2006 DELIVERED : 27 FEBRUARY 2007 FILE NO/S : CIV 1306 of 2004 MATTER : Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
The Will of ANTON POGORELIC late of 47 Haig Road, Attadale, Western Australia (Dec)
BETWEEN : GOLDI POGORELIC
Plaintiff
AND
MILOVAN ALEXANDER BANOVICH First Defendant
ELIZABETH MARWICK Second Defendant
VANESSA KATHERINE POGORELIC Third Defendant
(Page 2)
Catchwords:
Succession - Application by widow under Inheritance (Family and Dependants Provision) Act 1972 (WA) for provision from Estate of late husband - Whether entitled to matrimonial home - Relevance of lifestyle during marriage to proper provision from Estate - Whether pension entitlement a relevant factor - Turns on own facts
Plaintiff : Mr J C Curthoys First Defendant : Mr R A C Cullen Second Defendant : Dr P R MacMillan Third Defendant : Dr P R MacMillan
Solicitors:
Plaintiff : Frichot & Frichot First Defendant : Cullen Babington Hughes Second Defendant : Chan Galic Third Defendant : Chan Galic
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 Goodman v Windeyer (1980) 144 CLR 490 Grainger v The Public Trustee, unreported; SCt of WA; Library No 950670; 6 December 1995
[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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AGLC
Pogorelic v Banovich [2007] WASC 45
Case
[2007] WASC 45
Decision Date
CaseChat Overview and Summary
In the case of Pogorelic v Banovich, the widow of the deceased sought additional provision from his estate under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The central issue was whether she was entitled to a portion of the matrimonial home, and if so, what amount would be appropriate. The widow argued that the pension entitlement of the deceased was not a relevant factor in determining the appropriate provision from the estate. The court had to consider the lifestyle enjoyed during the marriage, the widow's financial needs, and the deceased's pension entitlement.
The court examined the nature of the relationship between the parties and the contributions made by each during the marriage. It was necessary to assess whether the lifestyle enjoyed during the marriage justified a larger share of the estate for the widow. The court also considered whether the deceased's pension entitlement should be taken into account in determining the appropriate provision from the estate. The widow's reliance on her late husband's pension payments was deemed relevant in calculating the necessary provision.
The court found that the widow was entitled to a larger share of the estate, considering the lifestyle during the marriage and the financial needs of the widow. The court concluded that the deceased's pension entitlement was a relevant factor in determining the appropriate provision from the estate. The widow's entitlement to a portion of the matrimonial home was recognised, and the court ordered that further provision be made from the estate.
The court ordered that further provision be made from the estate to meet the widow's financial needs. The amount was determined based on the lifestyle enjoyed during the marriage, the widow's current financial situation, and the deceased's pension entitlement. The court emphasised the importance of considering the individual circumstances of each case when making such determinations.