Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396 Hearing dates: 22 and 23 September 2016 Decision date: 30 September 2016 Jurisdiction: Equity - Family Provision List Before: Stevenson J Decision: Further provision to be made for widow; claim for provision by adult daughter to be dismissed
Catchwords: SUCCESSION – FAMILY PROVISION – claim for provision by widow – widow given only life interest in properties – lengthy and happy marriage – common ground such provision not adequate – what further provision should be made – claim for provision by adult daughter from earlier marriage – whether daughter has shown that provision from will of interest in properties in Cyprus as affected by Cypriot/Turkish law not adequate Legislation Cited: Family Law Act 1975 (Cth)
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
Bladwell v Davis [2004] NSWCA 170
Ciric v Ciric [2015] NSWSC 313
Cross v Wasson [2009] NSWSC 378
Epov v Epov; Epov v Epov [2014] NSWSC 1086
Friend v Brien [2014] NSWSC 613
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Graham v Graham [2011] NSWSC 504
Hedman v Frazer; Egan v Frazer [2013] NSWSC 1915
Keep v Bourke [2012] NSWCA 64
Lajcarova v Todorov [2011] NSWSC 522
Luciano v Rosenblum (1985) 2 NSWLR 65
Manuel v Lane [2013] NSWCA 61
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
Verzar v Verzar [2014] NSWCA 45Category: Principal judgment Parties: Hatice Sitki (Plaintiff/Second Cross-Defendant)
Binnaz Sitki (First Defendant/Cross-Claimant)
Ilay Aksoy (Second Defendant/First Cross-Defendant)Representation: Counsel:
Solicitors:
D Blackah (Plaintiff/Second Cross-Defendant)
L Ellison SC with S L Warren (First Defendant/Cross-Claimant)
G J Smith (Second Defendant/First Cross-Defendant)
Hakki Nami Solicitor (Plaintiff/Second Cross-Defendant)
TressCox Lawyers (First Defendant/Cross-Claimant)
Lane & O’Rourke (Second Defendant/First Cross-Defendant)
File Number(s): SC 2015/184836
Judgment
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Mehmet Sitki died on 26 November 2014, aged 73.
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He was survived by his widow, Binnaz, who was his third wife. They married on 27 May 1984. He was also survived by his adult daughters, Hatice and Ilay (who are aged 50 and 46 respectively) born to his first wife, Muserref. Muserref died in 1998.
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The deceased was briefly married, evidently in 1981, to a woman named Sema (who cannot now be located) prior to his marriage to his widow. In due course, I will make an order under s 61(2)(b) of the Succession Act 2006 (NSW) that service on Sema is now impracticable.
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For convenience, and without intending any disrespect, I will refer to the deceased’s daughters by their given names. I will refer to his widow as Mrs…
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- Case
- [2016] NSWSC 1396
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the adequacy of the provisions made for the widow and the daughter, and the applicable law in determining the adequacy of the daughter's provision, specifically the Cypriot/Turkish law. The court had to consider the length and quality of the marriage between the deceased and the widow, and the contributions made by the widow to the estate. For the daughter, the court needed to apply the relevant foreign law to assess the adequacy of the property left to her by the deceased. The court also had to determine whether the daughter had demonstrated that the provision made was not adequate.
The court concluded that the provision made for the widow was not adequate given the length and quality of her marriage to the deceased. The court noted that the widow had made significant contributions to the marriage and the estate, and that the life interest provided in the will was insufficient. As for the daughter, the court found that the provision made for her was adequate when assessed under the applicable Cypriot/Turkish law. The court determined that the daughter had not shown that the property left to her was not adequate. The court therefore dismissed both claims for additional provision.
The court did not make any orders for additional provision for either the widow or the daughter. The provisions made for the widow and the daughter under the will were upheld as adequate, and no further provision was granted.
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