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Varis v Varis

Varis v Varis

Case [2012] NSWSC 1553 12 December 2012

Family Provision

Beneficiary Rights

Care and Maintenance

Application Dismissal

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Varis v Varis [2012] NSWSC 1553
Hearing dates: 12 November 2012
Decision date: 12 December 2012
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
(1)Plaintiff's claim dismissed
(2)Parties to be heard on costs

Catchwords: WILLS AND ESTATES - application for family provision order by daughter of deceased - two children of deceased both beneficiaries - bulk of estate left to son - small estate - significant care provided to deceased by son - application dismissed
Legislation Cited: Family Provision Act 1982
Succession Act 2006
Cases Cited: Andrew v Andrew [2012] NSWCA 308
Buckland,deceased,Re [1966] VicRp 58; [1966] VR 404
Carey v Robson (2009) NSWSC 1142
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Singer v Berghouse (1994) 181 CLR 201
Smilek v Public Trustee [2008] NSWCA 190
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, Young J, unreported)
Category: Principal judgment
Parties: Kyriaki Varis (Plaintiff)
Costantinos Varis (Defendant)
Representation: R D Wilson (Plaintiff)
R de Meyrick (Defendant)
A Butler (Alison Butler & Associates) (Plaintiff)
J Finney (CBD Law) (Defendant)

File Number(s): 2012/124060
Publication restriction: None

Judgment

This is an application under the Succession Act 2006 in respect of the estate of the late Irene Varis who died on 24 September 2011. The deceased was survived by her daughter, the plaintiff in these proceedings and her son, who is the defendant in the proceedings.

The last will of the deceased

The deceased made her last will on 9th May 2008 and in that will she gave her daughter the plaintiff a legacy of $50,000 and gave the residue to her son, the defendant. There are a number of other wills which the deceased had made earlier. On 19th November 1993 she left the whole of her estate to her son, subject to him paying her daughter 45% of the value of her real estate. On 24 October 1994 she gave her estate to her son provided that he paid her daughter 30% of the value of her real estate.

Estate of the deceased

The estate consists of the deceased's property at Terrigal which has an agreed value of $475,000. There was also household furniture, personal items, bank accounts and term deposits totalling $21,435.17. From that sum there has been paid funeral expenses of $14,321.30.

The defendant's costs until the conclusion of litigation is $51,975 on an indemnity basis and the plaintiff's costs on the ordinary basis are $49,140. It can be seen that there are no ready funds in the estate to accommodate these costs or some of them.

Family History

The deceased was born in January 1931 and was aged 80 years at the date of her death. She had two children as I have mentioned. The plaintiff was born in September 1951…

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 Varis v Varis

Details

AGLC: Varis v Varis [2012] NSWSC 1553
Case: [2012] NSWSC 1553
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of Varis v Varis involved a daughter of the deceased seeking a family provision order under the Family Provision Act 1969 (NSW). The deceased had left the bulk of their estate to their son, with their daughter also being a beneficiary. The daughter argued that the estate did not provide adequately for her, despite the significant care provided by the son to the deceased. The court had to determine whether the distribution of the estate was just and equitable and whether the son's care warranted a different outcome.

The legal issues before the court were whether the estate distribution was fair and whether the care provided by the son could be considered as a contribution to the estate. The court needed to weigh the statutory criteria under the Family Provision Act against the contributions made by the son to the deceased’s care. The primary consideration was the extent to which the deceased’s needs were met, and whether the distribution of the estate reflected this.

The court found that the deceased's needs were adequately provided for by the son's care, which was substantial and ongoing. The court recognised that the son's contributions were significant and directly benefited the deceased. Given the small size of the estate and the care provided, the court concluded that the distribution was just and equitable. The application for a family provision order was dismissed as the court found no basis to alter the will's provisions.

The final orders of the court were that the application for a family provision order be dismissed and that the estate be distributed as per the terms of the deceased's will.

Orders