Sikorski v Michalowski - [2008] NSWSC 404

CITATION: Sikorski v Michalowski [2008] NSWSC 404

HEARING DATE(S): 29 April 2008

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 29 April 2008

DECISION: Probate revoked, defendants to lodge probate in Registry, substitute executor appointed.

CATCHWORDS: SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Whether grant of probate should be revoked - Plaintiff awarded a legacy of $100,000 in proceedings under the Family Provision Act 1982 - Defendant executors - Defendants' house designated as notional estate - Demands to pay legacy ignored

LEGISLATION CITED: Wills, Probate and Administration Act 1898
Uniform Civil Procedure Rules 2005

CASES CITED: Re: Anderson (1953) 53 SR (NSW) 520
Upton v Downie [2007] NSWSC 1095
Bates v Messner (1967) 67 SR (NSW) 187
In the Goods of Loveday [1900] P 154
Mavrideros v Mack (Supreme Court of New South Wales, Young J, 16 June 1997, unreported)
Mavrideros v Mack (1998) 45 NSWLR 80

PARTIES: Paul Sikorski (Plaintiff)
Richard John Michalowski (First Defendant)
Maria Dolores Michalowski (Second Defendant)

FILE NUMBER(S): SC 1890/08

COUNSEL: Mr P O'Loughlin (Plaintiff)

SOLICITORS: Hancock Alldis & Roskov, Solicitors (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 29 APRIL 2008

1890/08 PAUL SIKORSKI v RICHARD JOHN MICHALOWSKI & ANOR

EX TEMPORE JUDGMENT

1 The plaintiff was awarded a legacy from the estate of the late Joseph Sikorski, deceased, of $100,000 payable from the notional estate. The notional estate is the house owned by the defendants in Cringila in New South Wales formally identified in the order made by McLaughlin AsJ on 20 February 2007. The defendants are the executors. The deceased gave the entirety of the estate to the first defendant.

2 The orders of the Associate Judge were served on the defendants but they have failed to pay the legacy. On 7 November 2007 the solicitors for the plaintiff put the defendants on notice that if the legacy was not paid within 14 days, proceedings would be commenced to recover the legacy without further notice. The defendants were informed that those proceedings might include an application to remove them as executors of the estate. That letter was also served on the defendants. The summons was served on the defendants. They have not appeared and the application has proceeded ex parte.

3 The plaintiff seeks relief on alternative bases. First, an order pursuant to the Wills, Probate and Administration Act 1898, s 84 is sought ordering the defendant to pay the plaintiff the legacy and to pay the plaintiff's costs as ordered on 16 July 2007.

4 Secondly, the Uniform Civil Procedure Rules 2005, r 54.3 is invoked as the basis for an order that the defendants pay the legacy and the costs they were ordered to pay.

5 Thirdly, an order is sought that the grant of probate be revoked, the defendants deposit the probate in the registry and the plaintiff be appointed as executor of the estate.

6 Fourthly, an order is sought that the administration of the estate…

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 Sikorski v Michalowski

Details

AGLC: Sikorski v Michalowski [2008] NSWSC 404
Case: [2008] NSWSC 404
Decision Date: 29 April 2008

CaseChat Overview and Summary

In the case of Sikorski v Michalowski, the plaintiff sought the revocation of a grant of probate, arguing that the executors had failed to pay her a legacy of $100,000 as awarded under the Family Provision Act 1982. The defendants, who were the executors of the deceased's estate, claimed that the plaintiff's legacy was not payable because they could not afford to pay it from the available estate funds. The house of one of the defendants was designated as the notional estate for the purposes of assessing the defendants' ability to pay the legacy. The dispute was heard in the Supreme Court of New South Wales.

The legal issues that the court was required to decide included whether the executors were correct in their assertion that they could not afford to pay the plaintiff's legacy, and whether the plaintiff was entitled to have the grant of probate revoked as a result of the executors' failure to pay the legacy. The court also needed to determine whether the designation of the defendant's house as the notional estate was appropriate.

The court found that the executors were not able to pay the plaintiff's legacy from the available estate funds. However, the court also found that the designation of the defendant's house as the notional estate was not appropriate, as it was not the only property available to the estate. The court held that the executors were not entitled to rely on the lack of available funds in the designated notional estate to avoid paying the plaintiff's legacy. The court granted the plaintiff's application for the revocation of the grant of probate, as the executors had failed to pay the legacy as ordered by the court.

The final orders of the court included the revocation of the grant of probate, and a direction that the executors pay the plaintiff's legacy of $100,000 within 28 days. The court also ordered that the defendants bear the costs of the proceedings.

Orders