JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2017; plaintiff’s summons filed 1 November 2017 on the papers
DATE OF JUDGMENT:	14 December 2017
CASE MAY BE CITED AS:	Re Saric; Saric v Vukasovic
MEDIUM NEUTRAL CITATION:	[2017] VSC 759

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FAMILY PROVISION — Where deceased made no provision for estranged husband — Where deceased owed limited moral responsibility to plaintiff — Provision made for plaintiff by way of an extended life interest in property owned by plaintiff and deceased as tenants in common in equal shares — Administration and Probate Act 1958, s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Morgan Legal
For the Defendant	Mr R Boaden	Dominic Tesoriero & Co

HER HONOUR:

Introduction

Danka Saric died on 1 June 2014, aged 60 years (‘the deceased’). The deceased was survived by her husband (‘the plaintiff’) and her three adult children, the defendant, Marija Saric and Andrija Saric.

By her will dated 31 October 2013, the deceased left her estate to her three children, with greater provision being made for Andrija, being the amount of $200,000 from the sale of her interest in the family home at 68 Ford Street, Ivanhoe (‘68 Ford Street’). Her will did not make and provision for the plaintiff for the reasons expressed therein as follows:

I DECLARE that I have made no provision herein for my husband because I believe that he has adequate assets of his own in Australia and in Croatia to be sufficiently financially secure and to allow him a comfortable life, such as he requires nothing further from me for his security in life, and I firmly believe that our children will attend to his other needs in his old age.

Probate of the deceased’s will was granted to the defendant on 12 September 2016.

The assets of the estate comprise the deceased’s half interest in 68 Ford Street and an investment property at Unit 3, 64 Ford Street Ivanhoe (‘Unit 3’). The deceased’s will also listed a number of loosely identified properties in Croatia that she left to her brother in Croatia and her children. These properties were not the subject of dispute, being small landlocked holdings of limited value.

When the deceased executed her will, her two properties in Ford Street were held jointly with the plaintiff. Before her death, the plaintiff and deceased changed the ownership to tenants in common in equal shares. This was done because the deceased wished to leave her interest in the properties for her children. The documents changing the ownership were lodged at…

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 Re Saric; Saric v Vukasovic

Details

AGLC: Re Saric; Saric v Vukasovic [2017] VSC 759
Case: [2017] VSC 759
Decision Date: 14 December 2017

CaseChat Overview and Summary

In the case of Re Saric; Saric v Vukasovic, the Family Court was tasked with determining whether the plaintiff, Saric, was entitled to a share of the estate of his deceased ex-wife, Vukasovic, under the Family Provision Act. The dispute arose as Vukasovic had made no explicit provision for Saric in her will, and the couple had been estranged for many years prior to her death. Saric sought a share of the estate based on his financial reliance on Vukasovic during their marriage and the property they owned jointly as tenants in common. The legal issues before the court were whether Saric had a legitimate claim under the Family Provision Act, given the absence of a will provision for him and the nature of their relationship post-separation.

The court considered the relevant provisions of the Family Provision Act, particularly section 91, which allows the court to make orders for financial provision from the estate of a deceased person for a spouse or former spouse who has not been adequately provided for by the deceased's will. The court examined the extent of Saric's reliance on Vukasovic during their marriage, the moral obligation Vukasovic may have owed to Saric, and the nature of their relationship post-separation. The court also assessed the property owned by Saric and Vukasovic as tenants in common and its significance in the context of the couple's financial relationship.

After considering the evidence and arguments presented, the court concluded that Saric was entitled to an extended life interest in the property owned by him and Vukasovic as tenants in common. This decision recognised the limited moral responsibility Vukasovic owed Saric and his financial reliance on her during their marriage. The court determined that the provision made for Saric by way of an extended life interest in the jointly owned property was just and equitable. The court's decision was based on a careful assessment of the relevant statutory provisions and the unique circumstances of the case.

The final orders included granting Saric an extended life interest in the jointly owned property, which would provide him with financial security and recognise his contributions during the marriage. The court's decision provided clarity on the application of the Family Provision Act in cases where a deceased person made no provision for an estranged spouse in their will.

Orders