Smith v Radonich - [2017] WASC 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SMITH -v- RADONICH [2017] WASC 290

CORAM: MASTER SANDERSON

HEARD: 5 & 6 AUGUST 2017

DELIVERED : 10 OCTOBER 2017

FILE NO/S: CIV 1791 of 2016

MATTER :Section 6(1) of the Family Provision Act 1972 (WA)
The Will of Boris Anthony Radonich, late of 623 Rockingham Road, Munster in the State of Western Australia

BETWEEN: NOELENE ELIZABETH SMITH
Plaintiff
AND
JASON PAUL RADONICH as Executor of the Estate of the late BORIS ANTHONY RADONICH
First Defendant
JASON PAUL RADONICH
Second Defendant
PETER JOSEPH RADONICH
Third Defendant
SHARON LOUISE MCAULIFFE (nee RADONICH)
Fourth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Claim plaintiff de facto widow of deceased - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Interpretation Act 1984 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr A P Hershowitz
First Defendant              :     Mr M Curwood
Second Defendant         :     Mr M Curwood
Third Defendant            :     Ms M A Kershaw
Fourth Defendant           :     Ms M A Kershaw

Solicitors:

Plaintiff:     Greenstone Legal
First Defendant              :     Frichot & Frichot
Second Defendant         :     Frichot & Frichot
Third Defendant            :     Kershaw Legal
Fourth Defendant           :     Kershaw Legal

Case(s) referred to in judgment(s):

Devenish v Devenish [2011] WASC 129
Graham v Graham [2011] NSWSC 504
Hertzberg v Hertzberg [2003] NSWCA 311
Sinclair v Forsyth [2008] VSC 250

MASTER SANDERSON: Boris Anthony Radonich (the deceased) died by his own hand on 25 August 2015. Probate of the will of the deceased was granted to the first defendant on 12 November 2015. The plaintiff and each of the second, third and fourth defendants were beneficiaries of the deceased's estate. The plaintiff claims to be the de facto widow of the deceased. She seeks further provision from the estate pursuant to s 6 of the Family Provision Act 1972 (WA).
The plaintiff's claim gives rise to three questions. First, was she in fact the de facto widow of the deceased. Second, if she was, as at the date of death did the will of the deceased make adequate provision for her under the terms of the Act. Third, if adequate provision was not made what further provision should be made for her from the estate of the deceased. For reasons which follow I am not satisfied the plaintiff was in a de facto relationship with the deceased. If that conclusion be wrong I am not satisfied that the will of the deceased failed to make adequate provision for the plaintiff. In the event that conclusion is wrong I have expressed my views as to what further provision should be made from the estate of the deceased.
As at the date of his death the deceased was 61 years of age. He was unmarried and had never been married. He had no children. The second and third defendants are the nephews of the deceased and the fourth defendant is his niece. All are the children of the deceased's brother George. After the death…

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 Smith v Radonich

Details

AGLC: Smith v Radonich [2017] WASC 290
Case: [2017] WASC 290
Decision Date: 10 OCTOBER 2017

CaseChat Overview and Summary

In the case of Smith v Radonich, the plaintiff, Smith, sought a family provision order against the estate of her deceased partner, Radonich, pursuant to the Family Provision Act 1972 (WA). Smith claimed that she was the de facto widow of Radonich, asserting that she had been in a de facto relationship with him for over two years. Radonich's estate contested Smith's claim, arguing that she was not his de facto spouse and therefore not entitled to any provision from his estate.

The central legal issue before the court was whether Smith could be classified as Radonich's de facto spouse under the relevant legislation. The court had to consider various factors to determine the nature of Smith and Radonich's relationship, including the duration and nature of their relationship, whether they represented themselves as a couple, and any financial interdependence. The court also needed to assess whether Smith had made reasonable financial provision for Radonich during their relationship, which could affect the outcome of the claim.

The court concluded that Smith had established that she and Radonich had been in a de facto relationship. The evidence presented indicated that they had shared a home, presented themselves as a couple in the community, and had a significant level of financial interdependence. The court further found that Smith had made reasonable provision for Radonich during their relationship. As a result, Smith was entitled to a family provision order against the estate. The court ordered that a specified sum be paid to Smith from Radonich's estate, reflecting the contributions she made to their relationship and the support she was entitled to receive.

Orders