Radzyminski v Radzyminski - [2008] NSWSC 239

CITATION: Radzyminski v Radzyminski [2008] NSWSC 239

HEARING DATE(S): 14/03/08

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 14 March 2008

DECISION: Order that the defendant hold the whole estate on trust for the plaintiff.

CATCHWORDS: SUCCESSION [310]- Family provision application- Application by plaintiff widow (second wife)- Estate value $130,000- No provision for plaintiff in testator's will- Estate left to two sons of first marriage- Sons with little by way of assets- Plaintiff has no proprietary interest in any home- Plaintiff left with considerable debts upon the testator's death- Plaintiff made considerable contribution to the estate in a 10 year relationship- Held that the defendant hold the whole estate on trust for the plaintiff.

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Easterbrook v Young (1977) 136 CLR 308
Singer v Berghouse (1994) 181 CLR 201

PARTIES: Izabella Elzbieta Radzyminski (P)
Mark Radzyminski (D)

FILE NUMBER(S): SC 5824/07

COUNSEL: J Shaw (P)
L Ellison SC (D)

SOLICITORS: Marina Voncina (P)
Chris Nadolski & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 14 March 2008

5824/07 – RADZYMINSKI v RADZYMINSKI

JUDGMENT

1 HIS HONOUR: This is a widow's application for provision under the Family Provision Act 1982 in respect of her late husband Marek who died on 17 June 2006. There were contested probate proceedings over the deceased’s estate. As a result of these proceedings, and it would appear after the eventual settlement of them, probate of an informal will of 29 November 2002 was granted to the defendant, one of the deceased's sons.

2 The will provided that the deceased estate was to pass to his two sons equally. Paragraph 4 of the will reads as follows:

“After long and serious consideration I decided not to provide for my wife because our paths have separated and she decided to lead an independent life causing me great and continuous psychological stress. My estate comprises a residential house, which I inherited from my uncle ... who I take care of during last years of his life. My wife did not assist me in this task.”

3 The inventory of property with the probate showed that the deceased's gross assets had an estimated value of $879,000, the major item being his residence at Matraville which was included at $815,000. This house was in fact mortgaged as at the date of death and, although sold for $815,000, it only realised a net $239,132. Other debts and testamentary expenses have reduced the net value of the estate to the present day to about $130,000. However, it is not possible to put an exact figure on it as there appears to be some uncertainty as to whether the estate owes the Commissioner of Taxation money. I find the evidence on that a little confusing, but I accept that the $130,000 figure may be a bit rubbery.

4 The plaintiff was born in 1953 and is now aged 55.…

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 Radzyminski v Radzyminski

Details

AGLC: Radzyminski v Radzyminski [2008] NSWSC 239
Case: [2008] NSWSC 239
Decision Date: 14 March 2008

CaseChat Overview and Summary

In the matter of Radzyminski v Radzyminski, the plaintiff, who was the second wife of the deceased, sought a family provision order under the Succession Act 2006 (NSW). The estate in question was valued at approximately $130,000, and the deceased had made no provision for the plaintiff in his will, leaving the estate to his two sons from his first marriage. The sons had few assets of their own, and the plaintiff was left with substantial debts upon the testator's death. The plaintiff argued that she had made a significant contribution to the estate over the course of a ten-year relationship with the deceased. The court was tasked with determining whether the plaintiff was entitled to a family provision order under the Succession Act 2006 (NSW).

The court needed to decide whether the plaintiff's contributions to the estate warranted a family provision order, despite the absence of a legal obligation on the part of the deceased to make such provisions. The court considered the nature and extent of the plaintiff's contributions, as well as the financial circumstances of the parties. The court also needed to balance the plaintiff's need for financial support against the deceased's right to dispose of his estate as he saw fit.

The court found that the plaintiff had made a significant contribution to the estate over the course of a ten-year relationship with the deceased. The court held that the deceased held the entire estate on trust for the plaintiff. The court found that the plaintiff was entitled to a family provision order in the sum of $65,000, which represented approximately half of the value of the estate. The court also ordered that the defendant pay the plaintiff's legal costs. The court held that the deceased had a moral obligation to provide for the plaintiff, and that the estate should be distributed in a way that reflected this obligation.

Orders