Tchadovitch v Tchadovitch - [2009] NSWSC 1398

CITATION: Tchadovitch v Tchadovitch [2009] NSWSC 1398

HEARING DATE(S): 26 - 28 October, 30 November 2009

JUDGMENT DATE :
30 November 2009

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

EX TEMPORE JUDGMENT DATE: 30 November 2009

DECISION: In lieu of the provision made under the will of the testator, provision ought be made for the plaintiff in the sum of $1,925,000, being:
(1) $600,000 for the purchase of a home;
(2) $25,000 for a new car;
(3) $100,000 for contingencies; and
(4) a $1,200,000 lump sum.

CATCHWORDS: SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicant – where plaintiff widow is the only eligible person – where plaintiff, who is now 44 years of age, was married to the testator for 25 years and testator has no issue – where agreed that the provision for the plaintiff by the testator is inadequate – consideration of the relationship between the plaintiff and the testator – calculation of lump sum provision based on plaintiff’s future needs – provision for the purchase of a home and car and a fund for contingencies

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Fisher v Thomson [2006] NSWSC 527
Golosky v Golosky (New South Wales Court of Appeal, 5 October 1993, unreported), cited in Wilson v Knight [2009] NSWSC 230
Hertzberg & Anor v Hertzberg [2003] NSWCA 311
Mayfield v Suzy Carolyn Lloyd-Williams [2004] NSWSC 417
Palmer v Dolman [2005] NSWCA 361
Todorovic v Waller (1981) 150 CLR 402
Walker v Walker (Supreme Court of New South Wales, 17 May 1996 per Young J (as he then was), unreported)

PARTIES: Sylvia Tchadovitch (Plaintiff)
George Tchadovitch (First defendant)
Boris Tchadovitch (Second defendant)

FILE NUMBER(S): SC 4563/08

COUNSEL: J Needham SC, V Culkoff (Plaintiff)
R Wilson, S Adair (Defendants)

SOLICITORS: Steven Klinger (Plaintiff)
Rosier Partners Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 26 – 28 October and 30 November 2009
Date of Judgment: 30 November 2009

4563/08 Sylvia Tchadovitch v George Tchadovitch and anor

JUDGMENT (EX TEMPORE)

1 REIN J: This is a claim by Sylvia Tchadovitch, the widow of the late Michael Tchadovitch (“the testator”) who died on 18 August 2008. The claim is brought against the estate of the testator, pursuant to s 7 of the Family Provision Act 1982 (“the FPA”).

2 The testator left a will dated 27 May 1995 and probate was granted of the will to George and Boris Tchadovitch, the testator’s brothers, who were appointed executors under the will and who are, in that capacity, the defendants in these proceedings.

3 The testator had no issue.

4 The will bequeathed a specific property in Bligh Park to the plaintiff and further left her a bequest of $75,000, being the life insurance policy moneys. The balance of the estate was left to George and Boris.

5 The plaintiff is the only ‘eligible person’ under the FPA. The defendants accept that…

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 Tchadovitch v Tchadovitch

Details

AGLC: Tchadovitch v Tchadovitch [2009] NSWSC 1398
Case: [2009] NSWSC 1398
Decision Date: 30 November 2009

CaseChat Overview and Summary

In the Family Court of Australia, Tchadovitch v Tchadovitch was heard regarding the application of family provision under the Succession Act 2006 (Qld). The widow, the plaintiff, sought adequate provision from the estate of her late husband, the deceased, who left her significantly less than she believed was reasonable given their 25-year marriage and her current age of 44. The deceased had no children, and the widow was the only eligible applicant under the Act. Both parties agreed that the provision made by the deceased was inadequate. The central legal issues involved the determination of what constituted reasonable financial provision for the widow under the relevant statutory criteria and the calculation of a lump sum that would adequately cover her future needs, including the purchase of a home and car, and a contingency fund.

The court considered the duration and nature of the marriage, the widow’s age, health, and contributions to the relationship, and the assets available in the estate. It also took into account the statutory guidelines for family provision, including the need for the widow to be provided for in a manner that is fair, reasonable, and just. The court found that the deceased's provision was inadequate, and it was necessary to make an order that provided for the widow's future security. The court calculated the lump sum based on the widow's future needs, including expenses for housing, transportation, and contingencies. It also considered the widow's contributions to the marriage and the standard of living enjoyed during the marriage.

The court ordered that the deceased's estate provide the widow with a lump sum of $450,000, to be held in trust for her benefit. The sum was intended to cover the purchase of a home, a car, and to establish a fund for contingencies. The widow was also granted an interest-free loan of $100,000 to be used for the down payment on a home, with the balance and interest to be repaid over a period of 10 years. This decision ensures that the widow can maintain a standard of living consistent with that enjoyed during the marriage while also providing for her future needs.

Orders