Khadarou v Antarakis [2021] NSWSC 743

Supreme Court New South Wales

Medium Neutral Citation: Khadarou v Antarakis [2021] NSWSC 743 Hearing dates: 14, 15 and 16 April 2021 Date of orders: 29 June 2021 Decision date: 29 June 2021 Jurisdiction: Equity Before: Emmett AJA Decision: Application dismissed with costs. Catchwords: SUCCESSION — family provision — claim by person in an alleged close personal relationship with the deceased for provision from the deceased's estate under Succession Act 2006 (NSW), Ch 3 — whether eligible person — whether living together Legislation Cited: Succession Act 2006 (NSW), ss 57, 59 Cases Cited: Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Harkness v Harkness [2011] NSWSC 1421 Hayes v Marquis [2008] NSWCA 10 Hughes v Charlton [2008] NSWSC 467 Texts Cited: Nil Category: Principal judgment Parties: Sleiman Khadarou (Plaintiff) Rita Joan Antarakis (Defendant) Representation: Counsel: C Liedermann (Plaintiff) J Brown with C Coventry (Defendant)

Solicitors: Clayton James Solicitor (Plaintiff) Winter Legal (Defendant) File Number(s): 2020/151378 Publication restriction: Nil

Judgment

Introduction 1. The plaintiff, Mr Sleiman Khadarou (also known as Simon Khadarou), has applied for a family provision order under s 59 of the Succession Act 2006 (NSW) (the Succession Act) in respect of the estate of the late Argyrios Antarakis (also known as Eric Antarakis) (the Deceased). The Deceased died on 22 May 2019 leaving a will dated 26 June 1978 (the Will). By the Will, the Deceased appointed his brother, Michael Antarakis (the Executor), as executor of the Will. By the Will, the Deceased gave the whole of his estate to the Executor and their mother, Athina Antarakis, in equal shares. Athina Antarakis predeceased the Deceased and, accordingly, the Executor is entitled to the whole of the estate under the Will. Since the Executor was incapable of applying for probate, letters of administration with the Will annexed were granted to the Administratrix on 12 August 2019. The Executor had previously appointed his wife, the defendant, Mrs Rita Antarakis (the Administratrix), attorney under enduring power. 2. By summons filed on 21 May 2020, the plaintiff seeks a family provision order making provision for him from the estate of the Deceased together with an order that any property of the Deceased already distributed be designated as notional estate to the extent required to make such provision. The plaintiff claims that he and the Deceased were living in a close personal relationship at the time of the death of the Deceased and that, accordingly, he was an eligible person for the purposes of the Succession Act under s 57(1)(f). 3. Under s 59 of the Succession Act, the Court may, on application under Div 1 of Ch 3, make a family provision order in relation to the estate of a deceased person if the Court is satisfied, relevantly, that: * the person in whose favour the order is to be made is an eligible person, * having regard to all of the circumstances of the case, whether past or present, there are factors that warrant the making of the application, and * at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person. The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. Section 60 specifies matters to which the Court may have regard for the purpose of determining whether: * the person in whose favour the order is sought to be made is an eligible person, and * whether to make a family provision order and the nature of any such order. 1. The first question raised by the proceedings is whether the plaintiff is an eligible person for the purposes of the Succession Act. The Administratrix denies that he is and also denies that there are factors that would warrant the making of the application by the plaintiff. The Administratrix also disputes that, even if the plaintiff were able to establish that he is an eligible person and that there are factors that warranted the making of his application, the evidence establishes that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the Will.