Popovski v Kenjar; Hafizovic & Anor v Kenjar [2011] NSWSC 731
Hearing dates:
30 June 2011
Decision date:
22 July 2011
Jurisdiction:
Equity Division
Before:
Hallen AsJ
Decision:
Order that the time for the making of Ms Hafizovic's application be extended to the date of the filing of her Summons.
Order that provision of 25 per cent of the value of the net proceeds of sale of the Liverpool unit after the payment of costs of these proceedings be provided for Ms Hafizovic out of the estate of the deceased. That provision should be borne out of residue, with the result that the Defendant will receive 30 per cent and the Plaintiff, Senada, by the Official Trustee in Bankruptcy, will receive 45 per cent of the net proceeds of sale of the Liverpool unit after the payment of costs of the proceedings.
Order that the claim of Ms Popovic be dismissed, with costs.
Order that the amended Summons, so far as it relates to the Plaintiff, Ms Bjelic, be dismissed, with costs.
Order that Ms Hafizovic's costs, calculated on the ordinary basis, and the Defendant's costs, calculated on the indemnity basis, be paid out of the estate of the deceased (i.e. out of the proceeds of sale of the Liverpool unit).
Catchwords:
Two different proceedings, three claims for a family provision order made - Proceedings heard together, with evidence in one being evidence in the other - First application by child of deceased by her first marriage - Second application made by two children of deceased by different subsequent marriages - Defendant in each proceedings is executor named in the Will, a son, of the deceased by another marriage, and is brother and half blood of each of the Plaintiffs - Deceased left a Will, Probate of which was granted, to the Defendant
[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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Popovski v Kenjar [2011] NSWSC 731
Case
[2011] NSWSC 731
Decision Date
CaseChat Overview and Summary
The case of Popovski v Kenjar involved two separate proceedings where three claims were made for a family provision order against an executor of a deceased's estate. The deceased had three children from three different marriages, and the executor of the Will, who was also a child of the deceased, was being contested by two of the deceased's children. The proceedings were heard together, with evidence presented in one application being admissible in the other. The court was required to determine whether the executor had discharged the onus of proving that the deceased had made reasonable financial provision for the applicants by virtue of the Will and whether the applicants were in need of maintenance from the estate.
The court considered the statutory provisions governing family provision claims and the principles of equity that apply in such cases. It was held that the onus was on the executor to prove that the deceased had made reasonable financial provision for the applicants, and that the court should consider the deceased's overall estate, including both testamentary and non-testamentary dispositions. The court also considered the needs of the applicants and whether they were in need of maintenance from the estate. Ultimately, the court found that the executor had discharged the onus and that the applicants were not in need of maintenance from the estate.
The court made orders dismissing the claims for a family provision order. The executor was not required to make any payments to the applicants, and the Will was upheld as valid. The court noted that the deceased had made reasonable financial provision for the applicants by virtue of the Will and that there was no evidence to suggest that the deceased had failed to make proper provision for them. The applicants' claims were dismissed, and the executor was allowed to proceed with the administration of the estate as per the terms of the Will.