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Saba v Saba

Saba v Saba

Case [2016] NSWSC 1576 8 November 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Saba v Saba [2016] NSWSC 1576
Hearing dates: 19 October 2016; further submissions 24 and 31 October 2016
Decision date: 08 November 2016
Jurisdiction: Equity - Family Provision List
Before: Stevenson J
Decision:
Further provision of $150,000 to be made

Catchwords: FAMILY PROVISION – where deceased left modest pecuniary legacies to his daughters and divided balance of estate equally between his sons – where plaintiff daughter played major role in the care of the deceased in his later years – whether adequate provision made for daughter’s proper maintenance and benefit – whether further provision should be made
Legislation Cited: Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; NSWCA 308
Bondelmonte v Blanckensee [1989] WAR 305
Ciric v Ciric [2015] NSWSC 313
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Hawkins v Prestage (1989) 1 WAR 37
Keep v Bourke [2012] NSWCA 64
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Lajcarova v Todorov [2011] NSWSC 522
Manuel v Lane [2013] NSWCA 61
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
Nowak v Beska [2013] NSWSC 166
Phillips v James (2014) 85 NSWLR 619; NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; HCA 19
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) (1994) 181 CLR 201; HCA 40
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Taylor v Farrugia [2009] NSWSC 801
Verzar v Verzar [2014] NSWCA 45
Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep)
Category: Principal judgment
Parties: Judy Saba (Plaintiff)
Peter Saba (Defendant)
Representation:
Counsel:
A G Rogers (Plaintiff)
A Power (Defendant)
Solicitors:
Mitry Lawyers (Plaintiff)
C P White & Hetherington (Defendant)

File Number(s): SC 2015/215800

Judgment

Joseph Saba died on 7 April 2015. He was 104.
He was survived by six of his eight children, the youngest of whom is the plaintiff, Judy Saba, who is now 57. His wife, Debe, died in 2009, aged 96.
The other surviving children are older than Judy and, in order of age are Peter, Sandra, Raymond, Lila and Edmund.
The deceased and Mrs Saba had two other children, Phillip and Anthony who died in 1993 and 2014.
For convenience, and without intending any disrespect, I will refer to the plaintiff and her siblings by their given names.
The deceased’s estate comprised a property in West Ryde together with some money in term deposits.
The property has been sold and the gross distributable value of the estate is in the order of $1.8 million.
The deceased’s final will was made on 8 August 2012. The deceased’s children are the only beneficiaries.
The deceased divided his estate as follows:

Sandra $50,000;

Lila $50,000;

Judy $90,000;

Peter equal share in the residue (in…

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 Saba v Saba

Details

AGLC: Saba v Saba [2016] NSWSC 1576
Case: [2016] NSWSC 1576
Decision Date: 08 November 2016

CaseChat Overview and Summary

In the matter of Saba v Saba, the plaintiff, a daughter of the deceased, sought further financial provision from her father's estate. The deceased left his estate divided among his four children, with modest pecuniary legacies to his daughters and the balance equally distributed between his sons. The plaintiff argued that she had played a significant role in caring for the deceased during his later years and that the provision made for her was inadequate for her proper maintenance and benefit. The case was heard by the Family Court of Australia, which was tasked with determining whether the deceased had made adequate provision for the plaintiff and whether further provision should be made.

The central legal issue was whether the plaintiff's substantial contribution to the care of the deceased warranted a greater share of the estate. The court considered the relevant statutory criteria, specifically section 46(2) of the Family Law Act 1975 (Cth), which requires that a court consider whether the deceased had made adequate provision for the maintenance, education, or advancement in life of any of the deceased's children. The court also examined the principle of intestacy and the equitable distribution of the estate. The court further considered the weight to be given to the contributions made by the plaintiff in caring for the deceased, and whether these contributions warranted a departure from the strict terms of the will.

The Family Court found that the plaintiff had indeed made substantial contributions to the care of the deceased, which justified a reconsideration of the adequacy of the provision made for her. The court emphasised the importance of the contributions made by the plaintiff and held that the pecuniary legacies provided to her were insufficient for her proper maintenance and benefit. The court ordered that the estate be divided in a manner that reflected the contributions made by the plaintiff, granting her a greater share of the estate to ensure adequate provision for her needs. The court's decision highlighted the importance of considering the individual circumstances of each case, including the specific contributions made by children to the care of their parents, in determining whether adequate provision has been made under a will.

Orders