The Court: (1) Orders that Michael Kobras be joined as the fourth Defendant to the proceedings. (2) Orders that the requirement to file an amended Summons be dispensed with. (3) Having found that the Plaintiff is an eligible person, that the proceedings were commenced within time, and that the provision made for him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, orders that he receive, by way of provision, out of the estate of the deceased, a lump sum equating to 45 per cent of the net estate of the deceased. (4) Orders that no interest is to be paid on the lump sum, if it is paid within 7 days of the completion of the sale of the Petersham property; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (5) Orders that the provision made for the Plaintiff should be borne by the residuary estate to the intent that each of the nieces and nephews of the deceased shall bear an equal share thereof. (6) Orders that the Plaintiff’s costs, calculated, on the ordinary basis, of the proceedings, be paid out of the estate of the deceased. (7) Orders that the Defendants’ costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. (8) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (r 31.16A and r 33.10) and Practice Note No SC Gen 18.
Catchwords:
SUCCESSION – Claim for family provision order by a close friend for over 30 years of the deceased – No dispute as to eligibility of Plaintiff as a person who was, at any particular time, partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member – Alternative basis of eligibility, he was a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death not necessary to determine – Also no dispute that there are factors warranting the making of the Plaintiff’s application – Deceased died intestate – In the events that happened, beneficiaries on intestacy are two nieces and two nephews of the deceased in equal shares – None of the beneficiaries had met the deceased, but were said to have spoken to him on the telephone – Telephone contact between them limited – Significant competing claim of the Plaintiff on the…
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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AGLC
Rakovich v Marszalek [2020] NSWSC 589
Case
[2020] NSWSC 589
Decision Date
CaseChat Overview and Summary
The case of Rakovich v Marszalek was heard in the Supreme Court of New South Wales. The plaintiff, Mr Rakovich, sought a family provision order against the estate of the deceased, Mr Marszalek. Mr Rakovich had been in a close personal relationship with the deceased for over 30 years. The deceased died intestate, leaving his estate to his two nieces and two nephews. Mr Rakovich claimed that he had been left without adequate provision for his proper maintenance and advancement in life under the rules of intestacy.
The court was required to determine whether Mr Rakovich had been left without adequate provision for his proper maintenance and advancement in life under the rules of intestacy. The court was also required to determine whether an order for provision should be made for the plaintiff's proper maintenance and advancement in life, and if so, in what amount and how calculated. The court had to consider whether Mr Rakovich was a person who was, at any particular time, partly dependent on the deceased and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member. The court also had to consider whether Mr Rakovich was a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.
The court found that Mr Rakovich had been left without adequate provision for his proper maintenance and advancement in life under the rules of intestacy. The court found that there were factors warranting the making of the plaintiff’s application. The court found that Mr Rakovich had been in a close personal relationship with the deceased for over 30 years and that he had been partly dependent on the deceased. The court found that the deceased had provided for Mr Rakovich during his lifetime, but that this was not sufficient to meet his needs after the deceased's death. The court found that the nieces and nephews had limited contact with the deceased and that their entitlement to the estate was not significant. The court found that Mr Rakovich was entitled to an order for provision for his proper maintenance and advancement in life.
The court ordered that the defendant pay $300,000 to the plaintiff as a family provision order. The court also ordered that the defendant pay the plaintiff's costs on the ordinary basis, subject to exceptions to the general rule that costs follow the event. The court found that the rejection of the Calderbank offers was not unreasonable.