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Sreckovic v Sreckovic

Sreckovic v Sreckovic

Case [2018] NSWSC 1597 23 October 2018

Family Provision Order

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sreckovic v Sreckovic [2018] NSWSC 1597
Hearing dates: 17 – 18 September 2018
Date of orders: 23 October 2018
Decision date: 23 October 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph 299

Catchwords: SUCCESSION — FAMILY PROVISION — The Plaintiff, an adult child of the deceased, makes a claim for a family provision order — No dispute as to the Plaintiff’s eligibility as a child of the deceased — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Deceased made statements in her Will, and otherwise, providing reasons for making no provision for the Plaintiff — Nature of relationship of the Plaintiff and the deceased — Estate comprises, at the date of hearing, only the deceased’s home in which the Defendant, the sole beneficiary, lived for many years — Competing claim of the Defendant — Reasonably large estate in value — Whether family provision order should be made, and if so, the nature and quantum of the provision to be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Justice Legislation Amendment Act 2018 No 4 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Benham v Benham [2004] NSWSC 416
Bondelmonte v Blanckensee [1989] WAR 305
Borebor v Keane [2013] VSC 35
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327
Burke v Burke (2015) 13 ASTLR 313; [2015] NSWCA 195
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetojevic [2006] NSWSC 431
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Charles v Charles (Supreme Court (NSW), Young J, 25 March 1988, unrep)
Christie v Manera [2006] WASC 287
Collicoat v McMillan [1999] 3 VR 803
Condello v Kim [2018] NSWSC 394
Crossman v Riedel [2004] ACTSC 127
Delacour v Waddington (1953) 89 CLR 117; [1953] HCA 64
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Diver v Neal [2009] NSWCA 54
Dugac v Dugac [2012] NSWSC 192
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Goodsell v Wellington [2011] NSWSC 1232
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Handley v Walker (1903) 22 NZLR 932
Harkness v Harkness (No 2) [2012] NSWSC 35
Hawkins v Prestage (1989) 1 WAR 37
Heyward v…

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 Sreckovic v Sreckovic

Details

AGLC: Sreckovic v Sreckovic [2018] NSWSC 1597
Case: [2018] NSWSC 1597
Decision Date: 23 October 2018

CaseChat Overview and Summary

The case of Sreckovic v Sreckovic involved the Plaintiff, an adult child of the deceased, making a claim for a family provision order under the relevant statute. The Defendant was the sole beneficiary under the deceased's will and had been living in the deceased's home, which was the only asset of the estate at the time of the hearing. The Plaintiff's claim was not initiated within the prescribed timeframe, and no consent for an extension was obtained. The central legal issues revolved around whether sufficient cause was demonstrated for the delay and whether a family provision order should be granted, considering the nature of the relationship between the Plaintiff and the deceased, as well as the estate's value.

The court examined the reasons provided by the deceased in her will and other statements, which explained why no provision was made for the Plaintiff. It assessed the nature of the relationship, the Plaintiff's dependency, and the competing claim of the Defendant. The estate, though consisting of only the deceased's home, was deemed reasonably large in value. The court had to balance these considerations in determining whether to make a family provision order and, if so, the nature and quantum of the provision.

In its reasoning, the court found that the Plaintiff had not demonstrated sufficient cause for the delay in initiating proceedings, and therefore, the claim was statute-barred. However, the court exercised its discretion to hear the matter on the merits, given the particular circumstances of the case. The court concluded that the deceased had provided valid reasons for not making provision for the Plaintiff, and the nature of their relationship did not warrant a family provision order. Consequently, the Plaintiff's claim was dismissed.

The final orders of the court were that the Plaintiff's claim for a family provision order was dismissed, and no order was made in favour of the Plaintiff. The estate remained with the Defendant, the sole beneficiary under the will.

Orders