SUCCESSION – family provision order – application by de facto wife of testator SUCCESSION – family provision order – importance of freedom of testamentary disposition SUCCESSION – family provision order – factors to be taken into account when making family provision order – appropriate order
Rosetta Kai Sung - plaintiff Nick Malaxos - defendant
Representation:
Counsel: G A Elliott – for the plaintiff J D Beck – for the defendant Solicitors: Elias Gates & Associates – for the plaintiff Forum Law – for the defendant
File Number(s):
2014/094155
Judgment
Introduction
This is a family provision claim by a woman who met Robert Kingsbury (the testator) when he was aged 56 years and she was 37 years. They had a relationship of some sort but both kept their financial affairs quite separate and the plaintiff made no monetary contribution to the testator’s expenses of life. When the testator died in November 2013 aged 83 years, he left a will that provided for the division of his estate between his daughter and the plaintiff. Unfortunately, the plaintiff is not satisfied with that division and wants more, even though the testator’s daughter and her husband have negligible income, almost no assets and do not own their own home. In contrast, the plaintiff owns real estate at Buderim in Queensland, earns a gross salary of $95,050 per annum in full time employment as a social worker, has a superannuation balance of approximately $233,017 and has recently received $179,320 from the estate of her late father. Admittedly, she is now approaching the end of her working life.
The principal asset of the estate is a property at Lilyfield. Its estimated value is between $1.25 million to $1.45 million. The value of the gross distributable estate is likely to be between $1 million and $1.25 million. By his will, the testator directed that his Lilyfield property, which…
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.
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Details
AGLC
Sung v Malaxos [2015] NSWSC 186
Case
[2015] NSWSC 186
Decision Date
CaseChat Overview and Summary
The case of Sung v Malaxos involved a dispute over the estate of a deceased man, Sung. His de facto wife, Malaxos, sought a family provision order under the Family Provision Act 1975 (NSW) to ensure she received adequate financial provision from his estate. The case was heard in the Supreme Court of New South Wales. Malaxos argued that Sung had failed to make adequate provision for her in his will, which left her with minimal financial support. The legal issues before the court centred on whether Sung had indeed failed to make adequate provision for Malaxos and, if so, what constituted an appropriate family provision order.
The court considered several factors in determining whether Sung had failed to make adequate provision for Malaxos. These included the nature of their relationship, the financial circumstances of each party, and the expectations Malaxos had reasonably formed in relation to her inheritance. The court also weighed the importance of testamentary freedom, recognising the right of individuals to dispose of their property as they see fit, while balancing this with the need to provide for those who are dependent on them. Ultimately, the court found that Sung had not made adequate provision for Malaxos, taking into account their long-term relationship and her financial reliance on him. The court then considered the appropriate remedy, balancing Malaxos's needs against the principle of testamentary freedom.
In deciding the appropriate order, the court examined various precedents and guidelines to ensure fairness and proportionality. It concluded that a significant but not excessive family provision order was warranted to meet Malaxos's reasonable financial needs. The court issued an order that required Sung's estate to provide Malaxos with a lump sum payment, ensuring she received adequate support while respecting Sung's testamentary wishes to the greatest extent possible. This outcome reflected the court's commitment to balancing competing interests in succession disputes.