Re Estate Bohar; Bockos v Bohar - [2021] NSWSC 1177

Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Bohar; Bockos v Bohar [2021] NSWSC 1177
Hearing dates: 7, 8 and 9 September 2021
Date of orders: 16 September 2021
Decision date: 16 September 2021
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
1) ORDER that an application by an adult granddaughter for a family provision order in respect of the estate or notional estate of her maternal grandmother be dismissed.
(2) RESERVE questions of costs for further consideration upon submissions to be made.

Catchwords:
SUCCESSION — Family provision — Claim by adult granddaughter for provision from notional estate of deceased maternal grandmother under Succession Act 2006 (NSW), Ch 3 — Whether dependent at any time on the deceased — Whether factors warranting — Application dismissed

Legislation Cited:
Succession Act 2006 NSW

Cases Cited:
Aafjes v Kearney (1976) 180 CLR 199
Andrew v Andrew (2012) 81 NSWLR 656
Ball v Newey (1988) 13 NSWLR 489
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Chapple v Wilcox (2014) 87 NSWLR 646
Churton v Christian (1988) 13 NSWLR 241
Goodman v Windeyer (1918) 144 CLR 490
In re Allen [1922] NZLR 218
McKenzie v Baddeley [1991] NSWCA 197
Petrohilos v Hunter (1991) 25 NSWLR 343
Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9
Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Re Fulop Deceased (1987) 8 NSWLR 679
Sgro v Thompson [2017] NSWCA 326
Skinner v Frappell [2008] NSWCA 296

Category: Principal judgment
Parties: Plaintiff: Erika Bockos
First Defendant: Erika Bohar
Second Defendant: Eve Gerzabek
Third Defendant: Steven Gerzabek
Representation:
Counsel:
Plaintiff: KF Morrissey
First Defendant: D Stewart
Second Defendant: N Geikie, Solicitor
Third Defendant: MM Pringle
Solicitors:
Plaintiff: Szabo & Associates
First Defendant: Matthews Dooley & Gibson
Second Defendant: Geikie Legal
Third Defendant: CMM Quay Legal Group

File Number(s): 2020/00164803

Judgment

INTRODUCTION

For determination in this judgment is an application (under Chapter 3 of the Succession Act 2006 NSW) by an adult granddaughter for a family provision order in respect of the estate or notional estate of her deceased maternal grandmother.
The plaintiff’s application was made within the time limited by section 58(2) of the Succession Act 2006.
Because the deceased’s estate has been distributed to the three beneficiaries entitled under her will (the three defendants), the plaintiff seeks an order (made by reference to sections 63(3), 63(5), 79, 87-88 and 93-94 of the Succession Act) for designation of the distributed funds as notional estate of the deceased.
The jurisdiction of the Court to make such an order is acknowledged by the defendants who nevertheless draw to the Court’s attention the provisions of section 87 which require the Court to refrain from making “a notional estate order” unless it has considered the importance of not interfering with reasonable expectations in relation to property and the substantial justice and merits involved in making or refusing to make…

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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Details

Case: [2021] NSWSC 1177
Decision Date: 16 September 2021

CaseChat Overview and Summary

The case of Re Estate Bohar; Bockos v Bohar involved a legal dispute over the estate of a deceased woman, with her adult granddaughter seeking a provision from the estate under the Succession Act 2006 (NSW). The granddaughter, Bockos, argued that she was dependent on the deceased at some point in time and that certain factors warranted a provision. The dispute was heard in the Supreme Court of New South Wales. The central legal issue before the court was whether the granddaughter was indeed dependent on the deceased at any time, and if so, whether the circumstances justified a provision from the estate. The court also had to consider the relevant statutory provisions and case law governing family provision claims.

The court analysed the evidence and arguments presented by both parties, examining the relationship between the deceased and the granddaughter, the dependency of the granddaughter, and the financial circumstances of both. In assessing the dependency, the court considered the granddaughter's age, health, and financial situation at various points in time. The court also weighed the factors outlined in section 46(2) of the Succession Act, such as the nature of the relationship, the extent of any benefit received, and any other circumstances deemed relevant. Ultimately, the court found that the granddaughter had not demonstrated sufficient dependency on the deceased, and that the factors did not warrant a provision from the estate. Consequently, the court dismissed the application.

The court's decision was based on a thorough examination of the evidence and applicable legal principles. The court held that the granddaughter had not established a sufficient level of dependency on the deceased at any relevant time. Additionally, the court found that the factors considered under the Succession Act did not warrant a provision from the estate. As a result, the court dismissed the granddaughter's application for a family provision order.

Orders