Ulcej v Hannink - [2008] NSWSC 479

CITATION: Ulcej v Hannink [2008] NSWSC 479

HEARING DATE(S): 22, 23 and 26 November 2007 (judgment reserved on 5 February 2008)

JUDGMENT DATE :
19 May 2008

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that the time for the institution of these proceedings be extended up to and including 27 June 2006.
2. I order that, in addition to the benefits given to him by the will of the late Hendricka Jantine Hannink (“the Deceased”), the Plaintiff receive a legacy in the sum of $120,000, such legacy not to bear interest if paid on or before 19 June 2008 and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898.
3. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - family provision - claim by asserted de facto partner of Deceased - status of Plaintiff as de facto partner is disputed by Defendant - financial and material circumstances of Plaintiff - whether Plaintiff has been left without adequate provision for his proper maintenance - application not made within prescribed period - whether sufficient cause is shown for application not having been made within prescribed period - conduct of Defendant - competing claims of beneficiaries - nature of provision to be made for Plaintiff.

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Massie v Laundy (Supreme Court of New South Wales, Young J, 7 February 1986, unreported)
Caldwell v Ang (Supreme Court of New South Wales, Young J, 11 April 1991, unreported)
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Michael Ulcej (Plaintiff)
Richard Henri Jan Hannink (Defendant)

FILE NUMBER(S): SC 3434 of 2006

COUNSEL: Mr R. Wilson (Plaintiff)
Mr B. Burke (Defendant)

SOLICITORS: Turnbull Hill Lawyers (Plaintiff)
Peter Evans & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Monday, 19 May 2008

3434 of 2006 MICHAEL ULCEJ –v- RICHARD HENRI JAN HANNINK

JUDGMENT

1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.

2 The proceedings were instituted by summons filed by Michael Ulcej on 27 June 2006. Subsequently, an amended summons was filed on 15 February 2007. By each of the summons and the amended summons, the Plaintiff claims substantively an order for provision for his maintenance, education and advancement in life out of the estate of the late Hendrika Jantine Hannink (to whom I shall refer as “the Deceased”).

3 The Deceased died on 31 January 2000, aged 83 years. The Deceased, who was a widow at the time of her death (her husband Gerrit Hannink having died on 7 October 1969), left a will dated 23 June 1989, probate whereof…

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 Ulcej v Hannink

Details

AGLC: Ulcej v Hannink [2008] NSWSC 479
Case: [2008] NSWSC 479
Decision Date: 19 May 2008

CaseChat Overview and Summary

Ulcej v Hannink is a family provision case involving a dispute over the estate of a deceased person. The plaintiff, Ulcej, asserts himself as the de facto partner of the deceased, and seeks provision from the estate, which is contested by the defendant, Hannink. The dispute primarily centres around the plaintiff's status as a de facto partner and whether he has been left without adequate provision for his proper maintenance. Additionally, the case considers the financial and material circumstances of the plaintiff and whether the application was made within the prescribed period. The plaintiff's application was not made within the prescribed period, and the court had to determine whether there was sufficient cause for this delay. The conduct of the defendant and the competing claims of other beneficiaries also played a role in the court's consideration of the nature of the provision to be made for the plaintiff.

The legal issues that the court had to address included whether the plaintiff was a de facto partner of the deceased, and if so, whether he had been left without adequate provision for his maintenance. The court also needed to consider whether there was sufficient cause for the delay in making the application and the competing claims of other beneficiaries. Furthermore, the court had to weigh the financial and material circumstances of the plaintiff and decide the nature of the provision to be made for him.

The court found that the plaintiff was indeed a de facto partner of the deceased, and that he had not been left with adequate provision for his proper maintenance. The court also determined that there was sufficient cause for the delay in making the application, taking into account the plaintiff's financial and personal circumstances. The court considered the competing claims of other beneficiaries and the nature of the provision to be made for the plaintiff. Ultimately, the court made an order that the plaintiff be provided with an adequate sum from the estate of the deceased.

The final orders of the court were that the plaintiff be provided with a specific sum of money from the estate of the deceased, taking into account the financial and material circumstances of the plaintiff and the competing claims of other beneficiaries. The court also considered the conduct of the defendant and the delay in making the application, and found that there was sufficient cause for the delay. The court's decision ensures that the plaintiff receives adequate provision for his proper maintenance, while also considering the interests of other beneficiaries.

Orders