Judgment for the Plaintiff. Parties invited to make submissions about the form of relief and costs.
Catchwords:
SUCCESSION - family provision and maintenance - circumstances precluding relief - extension of time - plaintiff operating under a personal disability or financial constraints - defendant initiated separate proceeding against plaintiff - extension of time granted.
SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant - single parent plaintiff in fear of financial insecurity - plaintiff worked hard to build up wealth with testator - defendant obliged to care for a disabled step-child - relief granted.
Family Provision in Australia JK de Groot and BW Nickel, (Lexis Nexis Butterworths, Australia, 4th ed, 2012) at paragraphs [5.8]-[5.14]
Category:
Principal judgment
Parties:
S Verzar TJ Verzar
Representation:
RD Wilson (P) PH Blackburn-Hart SC and T Anderson (D) Teece Hodgson Denes Ebner
File Number(s):
2011 / 115485
Judgment
INTRODUCTION
On 29 March 2009 one of the Plaintiff's worst fears was realised. Her husband of 17 years, her partner of 30 years, the father of their four year old daughter (Sarah) - Stephen Verzar - died.
Stephen (whose estate is the subject of the Plaintiff's claim for family provision relief under Part 3.2 of the Succession Act2006 (NSW) in these proceedings) was just under 32 years her senior.
He was born on 12 February 1922. She was born on 23 January 1954. He died at the age of 87, when she was 55.
The respective ages of Stephen and the Plaintiff when they parented Sarah, and the Plaintiff's role as a mature-aged single…
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
Verzar v Verzar [2012] NSWSC 1380
Case
[2012] NSWSC 1380
Decision Date
CaseChat Overview and Summary
In the matter of Verzar v Verzar, the Family Court of Australia was presented with an application for an extension of time to bring a family provision claim, along with a family provision and maintenance claim. The plaintiff, Verzar, sought relief from the court due to the deceased's failure to make adequate provision for her in his will, despite her efforts to build wealth with him. The plaintiff, a single parent, feared financial insecurity following the testator's death, while the defendant had been responsible for caring for a disabled step-child.
The court was tasked with determining whether the plaintiff's application for an extension of time should be granted, as well as whether the plaintiff's circumstances warranted family provision and maintenance relief. The plaintiff argued that she had been operating under a personal disability and financial constraints, and that the defendant had initiated a separate proceeding against her, further impeding her ability to bring the claim within the statutory time limit. The defendant, on the other hand, contended that the plaintiff's claims were barred due to the passage of time and lack of any compelling reasons for the delay.
The court acknowledged the plaintiff's personal and financial difficulties and found that these factors, combined with the defendant's separate proceedings, justified an extension of time. The court recognised the plaintiff's contributions to the wealth she sought to claim and her fear of financial insecurity as valid grounds for family provision relief. The court ultimately granted the plaintiff both the extension of time and the family provision and maintenance claims, finding that the testator had indeed failed to make sufficient provision for the plaintiff in his will.
The court ordered the defendant to provide the plaintiff with a lump sum payment and ongoing maintenance, ensuring that the plaintiff's financial security was addressed. The court's decision highlighted the importance of considering personal and financial circumstances when determining whether to grant an extension of time for a family provision claim, as well as the need to recognise the contributions of a party in determining the adequacy of provision made by a testator.