SOMOGY v. KUNE [1999] NSWSC 1168

New South Wales Supreme Court CITATION : SOMOGY v. KUNE [1999] NSWSC 1168 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 2322/99 HEARING DATE(S) : 7/12-8/12/99 JUDGMENT DATE : 17 December 1999

PARTIES : Lilly Somogy v. Professor Gabriel Kune & John Landerer Estate of John Saunders deceased JUDGMENT OF : Bryson J at 1

COUNSEL : F. McAlary QC & S. Kaur-Bains for Plaintiff P. Hallen SC & R. Brender for Defendants SOLICITORS : Jackson Smith, Solicitors for Plaintiff Landerer & Co. Solicitors for Defendants CATCHWORDS : FAMILY PROVISION - sister - large estate - long history of partial dependency - sister aged 78 in need of large expenditure for care - annuity $35,000. DECISION : See para. 50

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

FRIDAY 17 DECEMBER 1999

2322/99 ESTATE OF THE LATE JOHN SAUNDERS & THE FAMILY PROVISION ACT 1982

LILLY SOMOGY v. GABRIEL ANDREW KUNE & ANOR

JUDGMENT 1 HIS HONOUR: John Saunders late of Point Piper, Company Director, who was born in Hungary on 23 November 1922, and emigrated to Australia about 1948, died on 6 December 1997. The plaintiff, who is his sister and was born on 23 May 1921, has brought these proceedings claiming provision out of his estate under s.7 of the Family Provision Act 1982. The defendants are his executors: they are Professor Gabriel Andrew Kune, Emeritus Professor of Surgery, and Mr John Landerer, solicitor. 2 The testator had a career of great success and distinction in Australia, became a magnate in the development of shopping centres associated with Westfield, and received the Order of Australia. He assembled a large fortune. The assets passing under his will were valued for probate purposes at $19,667,792.76 and the net value of the distributable estate was $19,055,694.30. The testator's will and only codicil were both made on 19 November 1997. The dispositions were elaborate and included legacies and specific gifts to a number of persons. By cl.10 the residue was given on trust to pay obligations, to pay several legacies and to hold one third of the remainder on trusts, stated at length, which benefit each of his three children in one-third shares. The administration of the estate has proceeded and legacies have been paid, insofar as they are yet payable; but one legacy of $1,250,000 to Hope Town Wyong Limited, which has charitable purposes, is payable by equal instalments over 5 years and not all of it has been paid. The undistributed assets now in the hands of the executors net of liabilities are worth $7,990,692.09. 3 The testator did not make any provision for the plaintiff in his will, but made provision for her in other ways during his lifetime. With one exception, no other person who is or may be an eligible person has made a claim or is likely to. The exception is Mrs Klara Saunders, the testator's former wife. In his will he gave her a legacy of $100 and stated his reasons for making no other provision. On 23 July 1999 she acknowledged receiving notice of distribution and on the same day she issued a summons in other proceedings claiming provision under Family Provision Act. Her application was made outside the prescribed period in s.16 and the summons has not been served on the executors, although the time for service under Pt.7, r.7(1A) of the Supreme Court Rules has passed. The summons was not accompanied by any affidavit and no evidence in support of her claim has been filed. Having regard to s.20 her claim cannot be disregarded but my view is that it does not raise any competing considerations with the plaintiff's claim. 4 To show that she is an eligible person the plaintiff must show that she falls within para.(d) of the definition of eligible person in subs.6(1):- "A person: (i) who was, at any particular time, wholly or partly dependent upon the deceased person; and (ii) … was, at that particular time or at any other time, a member of the household to which the deceased person was a member;"