Ticic v D'Alessandro

[2003] NSWSC 998

CITATION:	Ticic v D'Alessandro [2003] NSWSC 998
HEARING DATE(S):	7 October 2003 - 9 October 2003
JUDGMENT DATE:	3 November 2003
JURISDICTION:	Equity
JUDGMENT OF:	Master Macready at 1
DECISION:	See paragraph 72
CATCHWORDS:	Family Provision - Application by a de facto partner of deceased and a grandchild of deceased - Having regard to the short period of the de facto relationship small provision out of notional estate in favour of the de facto partner - Legacy in favour of grandson - Consideration of special circumstances under s 28 (1) (l) of the Family Provision Act
PARTIES :	Anka Ticic v Irma D'Alessandro Executrix of the Estate of Nicola Troiano Nicholas Luke Martin v Irma D'Alessandro Executrix of the Estate of Nicola Troiano
FILE NUMBER(S):	SC 3686/02; 5017/03
COUNSEL:	A M Gruzman with A V Gruzman for Anka Ticic R D Wilson for Nicholas Luke Martin C M Simpson for Irma D'Alessandro
SOLICITORS:	Johnston Vaughan Solicitors Kogarah for Anka Ticic Brazel Moore Lawyers Gosford by their City Agents David H Cohen & Co Solicitors for Nicholas Luke Martin Nescis Lawyers Leichhardt for Irma D'Alessandro

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Monday 3 November 2003

3686/02 Anka Ticic v Irma D’Alessandro
5017/03 Nicholas Luke Martin v Irma D’Alessandro

JUDGMENT

1 Master: This is the hearing of two applications under the Family Provision Act 1982 in respect of the Estate of the late Nicola Troiano who died on 27 April 2002 aged 57 years. The deceased was survived by his two children of his marriage and the plaintiff Anka Ticic who claims to have been living in a de facto relationship with the deceased at the date of his death and for a period of some 3 years beforehand. His wife predeceased the deceased. The other plaintiff Nicholas Luke Martin is a grandchild of the deceased.

The deceased’s will

2 The deceased made his last will on 16 September 1983 under which he appointed the defendant his sister as executrix. He left the whole of his estate to his two children equally.

The estate of the deceased

3 The deceased’s estate now comprises the following:

4 Bent Street Petersham $500,000
Furniture Etc $35,000
Jewellery $9,000
Watches $15,000
Motor Vehicle $1,000

4 The furniture jewellery and watches are still retained by the plaintiff despite the fact that she has no entitlement to them under the will. The estate has made no claim for them from the plaintiff so presumably they will remain in her possession. She still occupies the home and refuses to surrender it to the executrix on the basis of the claim she makes in these proceedings.

5 The defendant has paid some of the estate liabilities and the present outstanding liabilities are the following:

Estate liabilities $21,954
Rates paid by the defendant $ 1,010
Costs of administration $ 5,300
Executors commission $11,000
Costs of accounts $ 2,750
Realisation costs $13,500
Total $55,514

6 There are also the costs of these proceedings. The defendant’s costs are estimated at $54,854 and those of the plaintiffs in the two proceedings are $97,700 in total. If the house were sold, which it most probably will be due to the outstanding administration expenses and commission, the net amount available will be $291,932.

7 There is also a superannuation policy with MLC Limited with a benefit of $184,000. The trustee has decided to pay it as to one third to Anka Ticic, the plaintiff, and one third to Diana Loukis and one third to Filippo Troiano the deceased’s children. The defendant has lodged an appeal against this decision but so far there has been no decision on the appeal and apparently the trustee may be waiting on the outcome of these proceedings.

Family history

8 The deceased was born in October 1944 and accordingly was 57 years of age at the date of his death. The plaintiff Anka Ticic was born on 13 January 1949 and accordingly she is now 54 years of age. The deceased married on 9 March 1968 and had two children of that marriage, namely, Diana born 22 February 1971 and Filippo born 24 June 1972.

9 The plaintiff herself married on 3 August 1974. The deceased separated from his wife in 1979 and he and his two children then commenced to reside with his sister, Elizabeth, the defendant in the proceedings. The deceased divorced in 1981 and in 1983 they moved into the property at 4 Bent Street Petersham. The deceased made his last will on 16 September 1983.

10 The deceased’s daughter Diana Loukis had her first child in 1988 and her second child in 1993. Nicolas Martin the plaintiff who is the son of Filippo was born on 4 January 1994. On 30 June 1994 an order was made under the Child (Care and Protection) Act 1987 placing Nicolas Martin in care of his maternal grandmother, Kathleen Martin. On 13 March 1995 Kathleen and John Martin were given custody of Nicholas by order of the Children's Court at Campsie until he attained the aged of 18 years.

11 It was in 1994 or 1995 that the plaintiff says that she first met the deceased. This was only a friendship and in early 1997 the deceased met Kristen Lazarus. He apparently had a relationship with Kristen and she moved into the deceased’s home at Petersham in April 1997. According to her evidence she did not move out of his home until March 1999. This is contrary to the plaintiff's evidence and there is evidence from Diana Loukis, which I would accept, that the deceased and Kristen spent Christmas Day 1998 at her home. The plaintiff alleges that she commenced to live with the deceased as his wife at his home in February 1999.

12 Kristen Lazarus says her relationship ended in March 1999 and she moved out of his home at that stage. There is evidence from Filippo to the effect that he lived with the deceased at his home from February until September 1999 and that the plaintiff Anka did not live there at that time. In June 1999 the deceased’s brother Camillo died. The deceased took the plaintiff to his funeral and introduced her to his family as his friend.

13 On 1 July 2000 the plaintiff and the deceased took a holiday in Europe for ten weeks. They returned on 3 September 2000 and it seems clear that the plaintiff moved into Bent Street at least by this time.

14 The deceased died on 27 April 2002 at the plaintiff's home at Ulladulla. The plaintiff continued to reside in the deceased’s home at 4 Bent Street, Petersham, thereafter. The plaintiff was retrenched from her employment as a sample machinist in mid-May 2002 and she subsequently obtained work as a seamstress at the end of September 2003.

15 Probate was obtained on 1 July 2002 and the plaintiff Anka Ticic’s summons was filed on 22 July 2002. The plaintiff Anka was divorced on 24 September 2002 and a decree absolute was pronounced on 25 October 2002.

16 The plaintiff Nicholas’s summons was filed on 24 September 2003 and thus both proceedings have been commenced within time.

Plaintiffs’ eligibility

17 There does not seem to be any doubt that the plaintiff Anka Ticic lived with the deceased at Bent Street after their return from the trip to Europe in the beginning of September 2000. The evidence indicates that it was a de facto relationship and accordingly the plaintiff is an eligible person. The only question is the dispute as to when the relationship commenced. The plaintiff puts it at February 1999 and the deceased’s son suggests September 2000.

18 Questions of credit are raised in respect of the evidence of the plaintiff, Anka, and the beneficiary, Filippo. I found the plaintiff, Anka, not to be a reliable witness. Her English was reasonable although from time to time she pretended not to understand matters and retreated into difficulties with her English whenever difficult questions were involved. More particularly she did not disclose to the court her full financial situation in respect of the position of her assets owned by her and her husband and her superannuation. She also gave evidence about having purchased various materials, for example, the Colorbond referred to in paragraph 8.11.2 of her affidavit. That evidence was clearly false and I do not accept that she had been mistaken. Generally, it will be necessary for there to be some corroboration of her evidence.

19 With regard to the beneficiary, Filippo, although he endeavoured to be honest with the court, I have doubts about his recollection given the difficulties he was having with drugs during some of the times in question. He demonstrated difficulty in recollecting events in correct context. Accordingly, in respect of the particular matters as to when the relationship commenced it is necessary to look at other outside evidence.

20 Kristen Lazarus, with whom the deceased had a relationship prior to that with the plaintiff, gave evidence that she left the deceased in March 1999. She had been living with the deceased up until that time.

21 The plaintiff’s case was very simply that she commenced living with the deceased as a couple as and from February 1999. There was no suggestion by her that there was a period time at the start of the relationship when she would spend some time with the deceased and some time elsewhere either at Ulladulla or living separately and apart from her husband at Bexley. There does not seem to be any doubt that at least from the time when the parties went overseas in June 2000 that they had commenced to live together on a full time basis and that this continued after their return to Australia.

22 The evidence of Kristen Lazarus is quite contrary to the plaintiff’s evidence. I found that she gave her evidence clearly without hesitation and she had no interest in the matter. I am prepared to accept her evidence that she was still living in a de facto relationship with the deceased as at February 1999.

23 In June 1999 the plaintiff, Anka, was taken to the deceased’s brother’s funeral. This event shows that the relationship was probably close at that time although it does not go to whether the parties were living together.

24 The Deed between the plaintiff and her husband was executed on 19 August 1999 and it was at this time that the engagement ring was given to the plaintiff by the deceased. There was some evidence from Kathleen Martin, who I would accept, that in September 1999 she telephoned the property at Bent Street and the plaintiff, Anka Ticic, answered the phone. Although this indicated that she was spending some time at Bent Street it does not prove when the deceased and the plaintiff, Anka, commenced to live together as a couple. The same can be said about evidence by Norma Panzarin about visits which were made to her in hospital by the deceased and the plaintiff, Anka, in late 1999. These visits show the developing relationship but not that they were living together as a couple. The evidence of Jacqueline Rodrigues Martins a next door neighbour, which I accept, is consistent with the plaintiff moving in full time in September.

25 On the evidence I am not satisfied that the deceased and the plaintiff, Anka, were living together as a couple until they went overseas in June 2000. As I have mentioned I am, of course, satisfied that it was a close relationship from August 1999.

26 In my view the relationship commenced as a de facto relationship in June 2000. They had originally met in 1994 or 1995 but had only been friends at that stage. After the deceased’s relationship with Kirsten Lazarus ended in March 1999 he renewed his friendship with the plaintiff Anka Ticic. The relationship turned into one where the parties were engaged to be married in August 1999. No doubt it was a close relationship from that time onwards although I not satisfied that the deceased and the plaintiff were then living together as a couple.

27 The plaintiff, Nicholas Martin, is a grandson of the deceased who lived with his maternal grandparents Mr and Mrs Martin from a very young age. His parents, who had drug problems, could not look after him. As he was the deceased’s grandson he will be an eligible person if he was dependant on the deceased.

28 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following:

"His Honour concluded that 'dependent' meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of 'eligible person', par (d)(i).
In the present case, however, only financial dependence is relied on and I approach the matter on that basis. 'Dependent', in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey L.J. In Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in 'deciding whether or not there is dependency the factors to be considered are past events and future probabilities'. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency."

29 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court again considered the meaning of dependency. At page 346 the court had the following to say:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.
But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.
This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491, that '"dependent" in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed'.
If the correct view were that the context of the statute requires a limitation of the word to 'financial or material' matters as McClelland J said in Re Fulop Deceased or to 'other forms of dependance analogous to but distinct from financial dependence' as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

30 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), His Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as "financial, economic or material dependency, not a mere emotional dependency". Important in that case the majority held that the word "partly" in the phrase "partly dependent" does not mean "substantially" but meant “more than minimally” or perhaps “significantly”.

31 I am satisfied that the deceased contributed on a regular basis to the upkeep of the plaintiff from 30 June 1994 to July 1998 in the sum of $50 per fortnight. Thereafter until the date of death there were further contributions on a more irregular basis as the maternal grandparents had moved to the Central Coast. The amounts were significant in the context of the cost of care for the plaintiff and the straightened circumstances of the grandparents who lived on a pension in Housing Commission accommodation. In addition the deceased paid for half of the total cost of a cot, a pram, a high chair, a bassinette, a walker, a playpen, nappies and a porta cot which Mrs Martin estimated to be half of between $4,000 and $5,000. Nicholas was thus dependant on the deceased.

32 In these circumstances the plaintiff Nicholas is an eligible person. However it is necessary under s 9 (1) of the Family Provision Act that the court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:-

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

33 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

34 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

35 The deceased’s son, Filippo Troiano, who was the father of Nicholas, had a serious drug habit and could not look after him. The mother, Jodie Martin, a daughter of Mr and Mrs Martin was also in a similar position. It was a combined effort of both the deceased and the Martins to bring up Nicholas. In these circumstances and particularly as at the date of the deceased’s death Nicholas was only 8 years of age, it would be natural for the deceased to make provision for Nicholas. In these circumstances I am satisfied on the traditional basis that there are factors warranting the making of the application. I move on to consider the mater of whether the plaintiff has prospects of success.

The legal principles

36 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a Court must take. At page 209 it said the following:-

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The situation of the plaintiff Anka Ticic

37 The plaintiff is 54 years of age, single and has no dependants. She has a car worth $4,000 and superannuation worth $23,000. She and her former husband jointly own a property at 1/16 Kingsland Road, Bexley, worth $340,000 and a property at 6 Pettys Avenue, Ulladulla, worth $245,000. There is an agreement which was made on 19 August 1999 which provided inter alia:

(a) That her husband could reside in the Bexley property and was to be responsible for its outgoings during the term of his occupation,

(b) That she could reside at Ulladulla on similar terms,

(c) Should the husband sell Bexley he would pay her $40,000 on settlement of the sale in “full and final settlement of all claims she may have both at law and in equity against the husband”,

(d) Each covenanted not to revoke their wills both of which provided that their property pass to their children equally.

38 Given the date of the decree it is plain that the plaintiff could at the date of the hearing, and now with leave, still bring proceedings for a property settlement against her husband notwithstanding the terms of the deed. See In the Marriage of Woodcock (1997) 21 Fam L R 393; FLC 92-739. Given that both of them worked together all their marriage, apart from when the children were young, the plaintiff would have a claim for a property settlement, which would give her better provision than that contained in the deed. At the moment all she is entitled to if there was a realisation of the properties would be $40,000 plus one half of Ulladulla. It would seem that she would be likely to receive at least half of the pool of assets. If she demonstrated any physical incapacity for gainful employment she could also obtain further provision in those proceedings. See s 79(4)(e) and s 75(2)(a) and (b) of the Family Law Act.

39 The plaintiff has weekly expenses of $477.44 per week and her income is $634.62 per week gross and $501.62 net. She suffers from arthritis and medical evidence suggests that:

“Overall, I don’t think, in the passage of time, that she will improve but rather there may well be a slow deterioration in her abilities, as a result of underlying degenerative change in some parts of her skeleton.
Overall I think it unlikely that she could continue to work, in her current capacity, until the age of 65.”

40 It is thus likely that the plaintiff will have to cease work but no doubt she will then be entitled in those circumstances to an invalid pension. As a case based on a lack of income was not advanced in evidence or debated before me it is probably not useful to set out why I am of the view that it would be appropriate to have regard to such a pension in some cases.

The relationship between the plaintiff Anka Ticic and the deceased

41 The plaintiff gave evidence of being presented with an engagement ring and a wedding ring. She gave evidence of the deceased having asked her to marry him and that she accepted the proposal. Her evidence of the deceased having engraved the wedding ring with his name and date is inherently unlikely because the engraving of his name used the letter “K” which does not exist in the Italian alphabet. It is more likely that the plaintiff did this, she not being Italian, in order to improve her case. I have earlier referred to the view that I take in respect of the plaintiff’s evidence but having regard to the defendant’s evidence that her brother, the deceased, gave the engagement ring to the plaintiff I accept that this occurred.

42 Although I have no doubt that there was a proposal for marriage the marriage did not take place and the plaintiff took no steps to obtain a divorce until after the death of the deceased. I accept that the relationship was a happy one for the deceased.

Contributions to the estate of the deceased

43 The plaintiff claimed to have contributed to the repair and maintenance of the deceased’s property. Apparently the house was in need of painting and some repair work. There was not a great amount of detail supplied but reference was made to new guttering, new fences, insect screens, a new alarm system, renovation of the walls in preparation for painting and then some painting. She also referred to a new television set, new refrigerator, some items of crockery and furniture and a new kitchen. Evidence was given of the cost of some of these works and there was a simple statement by the plaintiff that she paid for most of these works. I accept that it is likely that she contributed something to the cost of these works but the amount that she paid has not been proved to my satisfaction. No doubt the kitchen was a large part of the costs but it was not quantified.

Provision for the plaintiff by the deceased.

44 The deceased and the plaintiff went overseas in 2000 and both contributed to this trip.

45 The plaintiff has had the benefit of occupation of the estate property for some 18 months. The rental value of the property is $320 per week and thus the plaintiff has already had a benefit of approximately $24,960.

The plaintiff Anka Ticic’s claim for provision

46 It is necessary to see how the plaintiff says that she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff’s primary claim is that she should have a bequest of the house property or sufficient funds to purchase a property in Sydney. She led no evidence of the cost of alternative accommodation.

47 In Marshal v Caruthers [2002] NSWCA 47 Hodgson J had the following to say in respect to a claim by a de facto wife:-

“63 The Master found that Ms Caruthers had a strong claim, and I agree with that finding. However, the strength of a claim of a surviving partner does, in my opinion, vary with circumstances. Although the Family Provision Act does, in some respects, equate de facto spouses with de jure spouses, this does not, in my opinion, make the existence or otherwise of a marriage irrelevant. In my opinion, a formal and binding commitment to mutual support through good times and bad, other factors being equal, adds strength to a legitimate claim. In my opinion also, the strength of a claim can be affected by the length of a relationship and contributions to the relationship. One factor which may be particularly important in a claim by a woman is that a woman may have, to the detriment of her own financial prospects, taken a major role in raising the children of herself and the deceased.
64 The Master referred to the following statement of principle which appears in Luciano v Rosenblum 2 NSWLR 65 at 69
“It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies. “
65 I do not think it is to be assumed that this statement is to apply in all cases, particularly where factors such as those I have mentioned are absent. In my opinion, it is not clear that this statement would apply to applications by widowers. The difference in attitude that the Court may take to applications by widowers is due in part, I think, to economic disadvantages which women still face. One important aspect of this is the economic disadvantage occasioned by the greater responsibility which women often take in looking after children. That factor is of course absent here.”

48 In the present case the parties lived together for a period of just under two years (although the close relationship was from August 1999) and there have been some minor contributions to the house by the plaintiff. There were no children requiring care. In these circumstances there would be no obligation for the deceased to provide a home for the plaintiff nor indeed would there be an obligation to see that the plaintiff has an appropriate income for the rest of her life. The later claim was not propounded by the plaintiff in evidence or submissions.

49 The alternative or perhaps an additional claim put forward by the plaintiff was that she should have a fund for contingencies of life.

The situation of the plaintiff Nicholas Martin

50 Nicholas lives with his maternal grandparents in their Housing Commission house at Erina on the Central Coast. He is 9 years old and in good health apart from some asthma which seems to be controlled. He is progressing well at school and it is too early to determine what are his ambitions in regard to his future occupation.

51 His grandparents receive pension entitlements in the sum of $812.50 per week. Mrs Martin estimates that they spend about $150 per week on supporting Nicholas. On the evidence it seems that they will have to support the plaintiff until he completes his schooling and establishes himself in life. Although Nicholas’s mother at times lives with her mother she is planing to marry the father of her eleven week old child and will move away from her mother’s home. She does not plan to take over the care of Nicholas because he is settled and she is worried about her own health problems.

52 Filippo gave evidence about his desire to have further contact with Nicholas in the future. He has had very little contact with his son, Nicholas, because of his own personal problems. He has a long way to go before he is able to obtain employment. He anticipates participating in rehabilitation for at least a year and then he hopes to obtain some form of employment. Apparently he has contacts from his previous employment, which might give him some access to employment. The fact of the matter is that Nicholas has been away from his father for nearly the whole of his life and it is probably not likely that Filippo will be in a position to take over full time care of him. It may be that he will be able to contribute to his future maintenance but this is a hope on his part. Although I think Filippo genuinely hopes to be able to do so the reality of the situation requires that I discount the chance of this happening.

53 As well as supporting Nicholas the deceased would see him every few weeks when Mrs Martin visited him with Nicholas.

54 The claim put on behalf of the plaintiff, Nicholas, is for a sum to provide him with his education and a start in his life. It presently costs $150 a week to support Nicholas and using the 3% tables the sum need to support him for 9 years until he turns 18 is $61,860. There would obviously be other expenses involved in his education as he gets older and contemplates either tertiary studies or some career.

55 It was suggested by the defendant that the appropriate level of maintenance was $50 per week as this approximated the contribution made by the deceased. Having accepted custody Mr and Mrs Martin also have an obligation to the maintenance of Nicholas. However, they are pensioners living in housing commission premises and any assistance with Nicholas’ education would relieve their difficult situation.

56 Clearly there is need for provision to educate and maintain Nicholas.

The position of Diana Loukis

57 It is of course necessary to consider the position of any other persons who had a claim on the bounty of the deceased. The beneficiary, Diana Loukis, is one such person. She is 32 years of age, married with three children. She does not advance her financial situation for consideration by the court and thus the court will not take that into account in considering the various claims made upon the estate.

58 She had a close relationship with the deceased and was a good daughter to him. There is no evidence of any contributions to the estate of the deceased by Diana.

The position of Filippo Troiano.

59 Filippo is aged 31 years, is single and has no assets. He is unemployed and receives a Social Security pension at the rate of $369 per fortnight. He presently lives with his sister and various friends from time to time. For a long time he has had a serious drug problem and is still under treatment. He has had no effective employment. Filippo left school in year 10 and started as a spray-painting apprentice. He did not complete the first year and left in 1992. From that time he was involved in drugs and he spent upwards of two years in gaol for various drug related offences. The last time he was before the court was in 1997 or 1998. He first went on a Methadone treatment before he commenced work with his father in 1999. He worked with his father at the place of his father’s employment. His work was that of an extrusion operator and he managed to work in that position until after his father came back from overseas in September 2000. At that stage he gave up his employment to go into a further rehabilitation programme. He has been on Methadone now for the second time since about a month after his father’s death.

60 Although Filippo has managed to remain clear of gaol since 1997 he is still suffering the effects of his drug habit over the years. He seems now to be reasonably stabilised on his Methadone programme and intends to go into further rehabilitation to eventually come off Methadone. Given the time he has been off drugs there is probably a reasonable prospect that he might succeed in riding himself of the problem. His future prospects of employment I have already referred to and they are not good but there is at least some hope as he has some contacts left from his former employment.

61 If Filippo were to receive part of the estate he proposes to purchase a unit close to where his sister lives. He spoke of giving any money he received to his sister for her to arrange to buy the unit. He is very aware of the fact that his only contact left in the world is his sister with whom he still has a reasonable relationship.

62 In my view it is likely that if he receives his share from the estate or from the insurance policy it is probably going to be used to buy him some permanent asset that will help him in the future.

63 Filippo receives $394 per fortnight for a Newstart allowance. He has no assets other than $200 or $300 in the bank. He has a liability of $27,000. This results from a car accident, which he had in August 2000 when he wrote off his car in a collision. Unfortunately for Filippo the vehicle he collided with was one belonging to the Tactical Response Group of the police and he managed to destroy it. Fortunately, neither Filippo nor the police were injured. At the present time he does not have a claim against him in any court but it is clear that the police are seeking to recover the amount from him and he may well have to pay it.

Consideration of the applications

64 One of the major difficulties in this case is knowing what will be the result of the appeal in respect of the superannuation of $184,000. At present it is to be shared on a one third basis between Anka, Diana and Filippo. The amount of such a share is $61,333 and if the plaintiff were to receive this it would be an appropriate provision for her. I say this because it seems to me that the plaintiff, as I have indicated before, would not be entitled to expect that she should receive sufficient to provide her with a house. Although there was an intention to marry and live together for a long time, which was thwarted by the early and unexpected death of the deceased, this fact cannot be taken into account. The court can only consider the situation as it now exists and this unfortunately includes the fact that the plaintiff and the deceased only had a short time together.

65 Given his difficult life and uncertainties Filippo has a very real claim on the bounty of the deceased.

66 Her alternative claim, which was only formulated in submissions and not dealt with in evidence, must be seen in the context of her superannuation and present assets. The contingencies were not clearly articulated but may include the need to provide for some rental accommodation if she decides not to live at Ulladulla for a period until she realises her interest in that property or makes a property claim. If she choses to utilize her existing right of residence at Ulladulla she will need to find employment or have some funds until she resolves her current situation. Some small augmentation of her current assets would recognise the extent of her association with the deceased and her contributions to the estate.

67 The defendant submitted that she should receive at the most a small legacy out of the superannuation funds. As I have the said the problem is that the question of superannuation is not determined because the defendant has lodged an appeal against the decision and apparently the trustee is awaiting the decision of this Court. If I gave an appropriate legacy to the plaintiff out of the estate she might still thereafter receive part of the superannuation, which would impact on the entitlement of Filippo, and that is to be avoided. In these circumstances if I were to make an order for payment of what I consider an appropriate amount to provide for the plaintiff, but out of the superannuation it is less likely that the trustee would award her a share of the remainder.

68 Under s22 (f) and 23 of the Family Provision Act such funds may be designated as notional estate. Section 28 provides inter alia as follows:

28. Designation of property as notional estate---powers and restrictions
(1) On an application in relation to a deceased person for an order for provision in favour of an eligible person, the Court shall not make an order designating property as notional estate of the deceased person unless the deceased person left no estate or unless it is satisfied:
(a) that the estate of the deceased person is insufficient to allow the making of provision that, in its opinion, should be made, or
(b) that, by reason of the existence of other eligible persons or the existence of special circumstances, provision should not be made wholly out of the estate.
(2) On an application in relation to a deceased person, the Court shall not make an order designating as notional estate of a deceased person property in excess of that necessary to allow the making of provision that, in its opinion, should be made.
(3) The exercise by the Court of its power under section 23, 24 or 25 to make an order designating as notional estate of a deceased person property held by, or on trust for, a person does not limit or restrict any further exercise by the Court of that power.

69 In the present case it would need special circumstances to exist as there is sufficient estate to provide an appropriate legacy. The quandary which I have endeavoured to articulate above is in my view a special circumstance. Section 27 of the Family Provision Act is in the following terms:

"(1) On an application in relation to a deceased person, the Court shall not make an order designating property as notional estate of the deceased person unless it has considered:

(a) the importance of not interfering with reasonable expectations in relation to property;

(b) the substantial justice and merits involved in making or refusing to make the order; and

(c) any other matter which it considers relevant in the circumstances.

(2) In determining what property should be designated as notional estate of a deceased person, the Court shall have regard to:

(a) the value and nature of property the subject of any relevant prescribed transaction or distribution from the estate of the deceased person;

(b) where, in relation to any such prescribed transaction, consideration was given, the value and nature of the consideration;

(c) any changes over the time which has elapsed since any such prescribed transaction was entered into, any such distribution was made or any such consideration was given in the value of property of the same nature as the property the subject of the prescribed transaction, the distribution or the consideration, as the case may be;

(d) whether property of the same nature as the property the subject of any such prescribed transaction, any such distribution or any such consideration could, during the time which has elapsed since the prescribed transaction was entered into, the distribution was made or the consideration was given, as the case may be, have been applied so as to produce income; and

(e) any other matter which it considers relevant in the circumstances."

70 In my view there is no question of any reasonable expectation on the part of the plaintiff that she should receive the deceased’s property and the justice and merits favour making of the orders that I propose.

71 In respect of the claim by Nicholas this can be accommodated within the existing estate provided the burden of it is borne by the share of residue passing to Diana Loukis who, in any event, is likely to receive part of the superannuation. I think that an appropriate legacy to assist his education and give him a start in life is $75,000.

Orders

72 The orders that I make are as follows:

1. I designate as notional estate, to the extent necessary to enable payment of the amount referred to in order 2 below, the superannuation sum of $184,000 held by MLC Limited.

2. I order that the plaintiff, Anka Ticic, receive a legacy of $61,333 out of the notional estate of the deceased.

3. I order that the plaintiff, Nicholas Luke Martin, receive a legacy of $75,000 out of the estate of the deceased and that the burden of such a legacy be borne out of the share of the residuary estate passing to Diana Loukis.

4. Subject to receiving no submissions within 7 days I order the plaintiffs’ costs on a party and party basis and the defendants on an indemnity basis be paid or retained out of the estate of the deceased.

5. Interest on the amount in order 3 above to be paid at the rate provided for under the Wills Probate and Administration Act 1898 if the amount is not paid within 4 months of today’s date.

6. Interest on the amount in order 2 above to be paid at the rate provided for under the Wills Probate and Administration Act 1898 if the amount is not paid within 1 month for today’s date.

7. I order the plaintiff, Anka Ticic, to vacate the premises 4 Bent Street Petersham within 2 months of today’s date and in the meantime to cooperate with the defendant in respect of the sale of such property.

8. I reserve liberty to apply.

**********

Last Modified: 11/03/2003