Sturaitis v Public Trustee [1999] NSWSC 484

New South Wales Supreme Court CITATION : Sturaitis v Public Trustee [1999] NSWSC 484 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1407/94 HEARING DATE(S) : 24 May 1999 JUDGMENT DATE : 24 May 1999

PARTIES : Teodora Sturaitis (P) Public Trustee (D) JUDGMENT OF : Master McLaughlin

COUNSEL : Mr. M. S. Willmott (P) Mr. L. Ellison (D) SOLICITORS : R. Schenko & Co (P) Mr P. J. Whitehead (D) CATCHWORDS : DECISION :

SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 24 May 1999

1407/94 TEODORA STURAITIS -v- THE PUBLIC TRUSTE OF NEW SOUTH WALES - ESTATE OF KAZYS STURAITIS JUDGMENT

1 MASTER: These are proceedings under the Family Provision Act 1982. By summons filed on 16 February 1994 the plaintiff, Teodora Sturaitis, seeks an order for provision for her maintenance out of the estate of her late husband Kazys Sturaitis (to whom I shall refer as "the deceased"). 2 The deceased died, aged seventy-two, on 8 September 1992. He left a will dated 16 March 1992, probate whereof was, on 27 January 1993, granted to the Public Trustee, the executor named in such will (who is the defendant to the present proceedings). 3 The assets of the decease consisted essentially of a house property situate at and known as 35 Clarke Street, Bass Hill, which had been the matrimonial home of the plaintiff and the deceased at the time of his death, together with amounts in various bank accounts. The assets presently consist of the house property at Clarke Street and moneys totalling $47,679 held by the Public Trustee, representing the other assets in the estate. 4 By his will the deceased gave a legacy of $5000 to the plaintiff. He gave the balance of his estate to his niece Jane Sturaite-Zumiene. It would appear that an amount of $66,433, being the proceeds of a life policy has been paid directly to the niece of the deceased and has not formed part of the estate of the deceased. 5 The plaintiff was born on 19 October 1923 in Lithuania. She is presently seventy-five years of age. She graduated in medicine in Lithuania in August 1949 and for about forty years practised as a medical doctor in State Hospitals in Lithuania. The plaintiff was married for a short period from 1958 to 1964. The only child of the plaintiff died in July 1985. 6 The plaintiff came to Australia on a visit in July 1989 at the invitation of a cousin who was residing in Darwin. She subsequently visited Sydney. She was on a six months visitor's visa. The plaintiff in November 1989 met the deceased, who also had been born in Lithuania. He had, however, resided in Australia since the early 1950s. 7 The deceased at the time when he met the plaintiff had recently been widowed. The deceased had no children. The plaintiff married the deceased on 15 January 1990. She subsequently obtained permanent residence in Australia on 8 January 1992. 8 The deceased at the time when he married the plaintiff was aged seventy. He was not in good health at that time. He suffered at the time of his marriage and until his death from a number of health problems, which included chronic bronchitis, hypertension and arteriosclerosis, circulatory obstructive disease, anxiety depression, advanced spinal degenerative spondylosis and a determatological problem. Throughout the period of the marriage he spent much of his time in bed, whilst the plaintiff cooked, attended to the housekeeping, did the shopping, attended to the washing, took the deceased to his doctor and acted as a nurse. There is in evidence a report from the treating doctor of the deceased, Dr A F Czyniewski dated 12 October 1992 (the statements wherein have not in any way been challenged by the defendant), which includes the following: On 15 January 1990 he [the deceased] married a recently arrived Lithuanian lady, a retired medical practitioner, who has become well known to me, particularly in assisting in his medical supervision, dermatological applications and general domestic support. Mrs Teodora Sturaitis became invaluable in assisting me in the management of a complex medical invalid.