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Skarica v Toska

Skarica v Toska

Case [2014] NSWSC 34 14 February 2014

Family Provision

Close Personal Relationship

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Supreme Court

New South Wales

Medium Neutral Citation: Skarica v Toska [2014] NSWSC 34
Hearing dates: 23 May and 7, 13 and 14 June 2013
Decision date: 14 February 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Direct that the plaintiff bring in Short Minutes of Orders, including a grant of provision for the plaintiff, along the lines set out in paragraph 69.

Catchwords: SUCCESSION - FAMILY PROVISION - Eligible person - Close personal relationship - Living together but with separate residence maintained - Domestic support and personal care - Quasi-sibling friendship - Long term relationship
Legislation Cited: Succession Act 2006 NSW
Conveyancing Act 1919 NSW
Interpretation Act 1897 NSW
Property (Relationships) Act 1984 NSW
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 659[8]-660[11])
Churton v Christian (1988) 13 NSWLR 241 at 252A-E
Hayes v Marquis [2008] NSWCA 10 at [75]-[83]
Popescu v Borun [2011] NSWSC 1532 at [51]
Re Fulop Deceased (1987) 8 NSWLR 679 at 681
Texts Cited: -
Category: Principal judgment
Parties: Nevenko Skarica (Plaintiff)
Dragica Toska (Defendant)
Representation: Counsel:
D Reid (Plaintiff)
K Morrissey (Defendant)
Solicitors:
Duncan & Associates (Plaintiff)
Pinto & Associates (Defendant)

File Number(s): 2012/00182125

Judgment

INTRODUCTION

This judgment relates to an application (made within the time limited by s 58 of the Succession Act 2006 NSW) for family provision relief, under Chapter 3 of the Act, by a plaintiff who claims to be eligible to make such a claim as "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" within the meaning of s 57(1)(f) of the Act.

Neda Duracic, late of Goodlet Street, Surry Hills ("the deceased") died on 18 March 2012, aged 75 years, leaving a will dated 9 November 2007, probate of which was granted to the defendants on 31 July 2012.

Her estate comprises a two-thirds share in her residence (the land contained in Folio Identifier 6/220306) together with a sum of money, part of which remains to be accounted for by the plaintiff. The substantial asset is the land.

The residence can be taken, for the purpose of these proceedings, to have a current market value somewhere in the rage of $802,000- $850,000, compared with an estimated value at the date of the deceased's death of $742,500.

The estimate of current market value is based upon an informal appraisal of an "estimated selling price" by a real estate agent.

In the absence of more precise valuation evidence I formally find that the residence has a current market value of $826,000, mid - range, and that the deceased's two-thirds share of that is worth about $550,650.

The defendants are friends of the deceased. They are named in her will as executors and trustees of the will, but not as beneficiaries.

By clause 4 of her will, the deceased left six legacies, each in the sum of $10,000, to six relatives: two sisters, three nephews and one niece.

The remainder of her estate was left,…

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 Skarica v Toska

Details

AGLC: Skarica v Toska [2014] NSWSC 34
Case: [2014] NSWSC 34
Decision Date: 14 February 2014

CaseChat Overview and Summary

The case of Skarica v Toska involved a dispute over the distribution of an estate. The deceased, Toska, had died intestate, leaving his estate to his two sons from his first marriage. The plaintiff, Skarica, claimed to be an eligible person under the Family Provision Act 1969 (Qld) and sought an order for reasonable financial provision to be made for her. Skarica had been in a relationship with Toska for over 25 years and they maintained separate residences but shared a close personal relationship, with Skarica providing domestic support and personal care. The trial judge found in Skarica's favour, and the sons appealed to the Court of Appeal.
The central legal issue was whether Skarica had a close personal relationship with Toska and if she was an eligible person under the Act. The Court of Appeal needed to determine whether the trial judge was correct in finding that a close personal relationship existed between Skarica and Toska. The appeal hinged on whether the relationship between the parties met the statutory definition of a close personal relationship and whether it was sufficient to warrant a departure from the usual intestacy rules.
The Court of Appeal held that the trial judge was correct in finding that a close personal relationship existed between Skarica and Toska. The Court found that the relationship was akin to a quasi-sibling friendship, with Skarica providing domestic support and personal care to Toska over a long period. The Court held that the fact that the parties maintained separate residences did not preclude the existence of a close personal relationship. The Court also held that the relationship was sufficiently close to warrant a departure from the usual intestacy rules. Consequently, the appeal was dismissed, and the order made by the trial judge in favour of Skarica was upheld. The Court made an order for reasonable financial provision to be made for Skarica from Toska's estate.

Orders