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. That report is dated 12 October 1992, only a matter of a few weeks after the death of the deceased. 9 In mid-1992, from April to June of that year, the plaintiff and the deceased paid a visit to Lithuania, where the plaintiff still maintained an apartment. The precise legal status of that apartment appears to be complicated; but I gather that whilst the plaintiff remains the legal owner of the apartment she cannot dispose of it unless she makes certain payments to the Government of Lithuania; even then there appears to be a limitation upon the way in which she can dispose of it, in that she must offer it first to a neighbour in the same apartment building. In any event, the apartment appears to have a relatively small value in terms of Australian money. The plaintiff says that she estimates it to be worth approximately $(A)21,000. 10 The deceased apparently originally did not intend to accompany the plaintiff on the visit to Lithuania, although that visit had been discussed by both the plaintiff and the deceased from December of the preceding year. Only after the plaintiff had actually arrived in Lithuania at the end of February 1992 did the deceased inform her that he was proposing to come to Lithuania. He, in fact, arrived on 25 April 1992 where he was met at the Vilnius airport by the plaintiff. 11 Throughout the period whilst the plaintiff and the deceased were both in Lithuania at the same time, it would appear that the deceased spent probably about one month staying with his relatives and, according to the plaintiff, more than a month staying in her apartment with the plaintiff. However, since the plaintiff and the deceased departed from Lithuania on 11 June 1992 and arrived together in Australia two days later, the precise periods referred to by the plaintiff in her evidence, which would total more than two months, cannot be entirely accurate. 12 Nevertheless, whilst the deceased was in Lithuania, he made complaints to various relatives concerning the plaintiff. Those complaints fell into two categories. The first was that she had married him only to obtain permanent residence in Australia. The second was that she did not look after him properly. 13 In support of the first category of complaints there has been tendered in evidence, as Exhibit 1, a statutory declaration by the deceased dated 6 February 1992, which has been produced from the records of the Department of Immigration in answer to a subpoena addressed by the defendant to that Department. The circumstances in which the deceased created that statutory declaration have not been disclosed in evidence to the Court. That statutory declaration refers to the fact that the plaintiff was the applicant for permanent residence. The deceased then says: I did not marry my wife for the purpose of enabling her to obtain permanent residency status in Australia. Subsequent to our marriage my wife has become very independent and no marriage relationship now exists between us, although my wife still resides in my house at 35 Clarke Street, Bass Hill. My wife has said to me, 'Wait till I get permanent residency, then we can separate.' I now believe that my wife married me for convenience so that she could obtain permanent residency in Australia. 14 The plaintiff was cross-examined concerning the content of that document and especially concerning whether she had married the deceased in order to obtain permanent residence in Australia. The plaintiff denied those suggestions. Apart from that statutory declaration and apart from complaints of a similar tenor which appear to have been made by the deceased to various relatives during the visit to Lithuania, there is no evidence to support the suggestion that the marriage of the plaintiff to the deceased was motivated by a desire to obtain permanent residence, or was in any way a sham or was not a true marriage. Indeed, the plaintiff in her oral evidence said that she was not aware until after she had married the deceased that her marriage would have entitled her to apply for or obtain permanent residence in Australia. 15 In her affidavit of 14 February 1994 the plaintiff, in paragraph 17, refers to the fact that before her marriage the deceased said to her: I will leave the house, car and all my property to you and all my savings except a small amount which I intend to leave to my brother Peter John Sturaitis in Lithuania. 16 The plaintiff also referred to the fact that at their wedding reception the deceased had said that he was intending to give her his motor vehicle as a wedding present. However, he never transferred the registration of that vehicle to the plaintiff's name. Counsel for the plaintiff has informed the Court that the motor vehicle was, in fact, seriously damaged in an accident in 1994 and that in consequence the proceeds of the insurance entitlement in respect of that vehicle now form part of the assets of the estate held by the Public Trustee. 17 Evidence has been placed before the Court by the residuary beneficiary, the niece of the deceased, concerning her financial and material circumstances. During the visit to Lithuania of the plaintiff and the deceased in 1992, the deceased gave to his niece Jane an amount of $10,000 as a wedding present. (She married in 1992.) In addition, the plaintiff also gave to the deceased's niece the sum of $1000 which had been entrusted to her by the deceased for that purpose before her departure from Australia. 18 The plaintiff, as the widow of the deceased, is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such she has the standing to bring the present proceedings. Indeed, the plaintiff is the only eligible person in relation to the deceased. The chief beneficiary, the niece of the deceased, is not an eligible person. Indeed, the evidence discloses that at the time when he made his will the deceased had never met his niece. He met her for the first time only a month or so later, during his visit to Lithuania. 19 The plaintiff is and has since the death of the deceased continued to live in the house at 35 Clarke Street, Bass Hill. The parties are in agreement that the present value of that house property is between $215,000 and $220,000. 20 The plaintiff has not been in employment since she came to Australia. She has been in receipt of a pension since the time of her marriage to the deceased. For the first two years of that marriage the plaintiff's pension was, in fact, paid into the deceased's bank account and, to that extent, the deceased had control over the plaintiff's own financial position. The plaintiff's pension is presently in the sum of $181.35 a week. She has no other income. From that amount she pays all outgoings in respect to the house property and pays for all costs for her own upkeep and maintenance. Apart from clothing and personal effects the only assets of the plaintiff consist of the two bedroom flat in Lithuania and a very small amount, totalling a little over $400, held by her in a bank account and in a credit society account. The plaintiff is in good health, although she does suffer from high blood pressure. 21 It is the plaintiff's desire to continue to reside in the Clarke Street property, since she had a garden there where she is able to grow flowers and vegetables. She enjoys gardening and the growing of vegetables allows her to supplement her groceries in this way. The Bass Hill residence is also close to the Lithuanian Club at Bankstown, which is the centre of the plaintiff's social activities. She also attends the Lithuanian Catholic Church at Lidcombe, which is close to Bass Hill. 22 The parties have given estimates of the costs of the present proceedings. The estimate given by the solicitor for the plaintiff is that her costs in these proceedings will be in the sum of about $15,000; whilst that given by the solicitor for the defendant is that the costs will total about $20,000. 23 The Court recognises that the marriage was of short duration. Nevertheless that fact does not absolve the deceased from responsibilities to his widow. The deceased may, during the course of the marriage, have come to believe that the plaintiff's motive in marrying him was to obtain permanent residence in Australia, a country which, under cross-examination, she said she had come to like and where she wished to remain. Nevertheless, that fact of itself, even if true, would not necessarily absolve the deceased from his responsibilities to make provision for the plaintiff. 24 It must be observed that even though the plaintiff obtained permanent residency on 8 January 1992, she still continued to remain not merely occupying the same house property as the deceased until his death, but also, and of consequence, continued to act as his nurse and to assist Dr Czyniewski in carrying out the medical treatment for the deceased and in taking him to and from Dr Czyniewski. 25 The situation in which the deceased found himself with the plaintiff, whether or not he suspected her motives in marrying him, was clearly one which suited the deceased, in that he had an unpaid housekeeper and an unpaid medically qualified nurse to look after him in his condition of ill-health. Further, for the first two years of their marriage he appears to have had complete control of the plaintiff's finances and income. 26 In the light of the denials by the plaintiff under oath that she married the deceased only in order to obtain permanent residence in Australia, I am not satisfied that the complaints of the deceased either made in his statutory declaration (the circumstances giving rise to which have not, as I have indicated, been revealed to the Court), or made to the various relatives in Lithuania are necessarily true. But even if contrary to that view there was substance in those complaints and that belief, that fact of itself does not discharge the deceased from an obligation to ensure that the plaintiff had at least accommodation. 27 If the terms of the will take effect, the plaintiff, on a very small pension, totally without assets in Australia, and with an asset in Lithuania, which even if she could dispose of would give her very little in Australian money, would be left totally without any accommodation. 28 I am satisfied that the plaintiff has established an entitlement at least to the house property at Clarke Street, Bass Hill. That entitlement, however, must be viewed in the light of any competing claims upon the testamentary bounty of the deceased. The only such competing claim is that of the deceased's niece. She has already directly from the deceased received a wedding gift totalling $11,000. She has, since the death of the deceased, received the proceeds of life policies totalling $66,433. Those life policies have enabled the niece and her husband to acquire a three bedroom apartment in Vilnius, the capital of Lithuania in October 1995. In her affidavit she says that they were able to purchase the apartment after she received money from the deceased's insurance. 29 The niece is presently unemployed. She and her husband have a young daughter, who was born in 1994. Her husband is a roofer. He receives in the equivalent of United States currency about $180 a month. According to her, they live very sparingly, and in her affidavit she says, "Because of our family's difficult financial conditions we cannot afford to have another child." The evidence is silent as to whether the difficulty in finding a job (to which the niece refers in her affidavit) is as a result of the economic situation in Lithuania, or as a result of her own personal situation. I allowed that evidence over objection by Counsel for the plaintiff. The niece is a qualified kindergarten teacher. 30 I do not have any evidence of comparable cost of living figures between Lithuania and Australia. But there are references in the affidavit of the niece of the deceased to her husband's monthly wage and to the cost of food and telephone and car maintenance as well as the cost of such outgoings as electricity, heating, gas and water on their apartment. It would appear that the cost of living in Lithuania is considerably less than that in Australia, especially in Sydney. 31 The niece has already received in consequence of the death of the deceased a benefit which has been sufficient to enable her to purchase a three bedroom apartment in the capital of Lithuania. I am not satisfied that any competing claim of the niece, who I have already observed is not an eligible person and who had not even met her uncle, the deceased, at the time when the will was made in her favour, is such which should reduce, let alone extinguish, any order for provision any entitlement to which the plaintiff might otherwise have established. I have already expressed my view that the plaintiff is entitled to receive the Clarke Street house property. She should receive that property absolutely. The only other question remaining concerns the balance of the estate. 32 After the payment of the two sets of costs there will remain about $12,000 in the hands of the Public Trustee. But of that $12,000, $5000 is an amount to which the plaintiff herself is entitled under the terms of the will. It seems to me that any balance then remaining should also go to the plaintiff, to enable her to have some little fund available to meet what is obviously a very limited lifestyle and to have some moneys available to meet contingencies. Accordingly, I propose to order that the plaintiff, in lieu of the benefit given to her by the will of the deceased, receive the entirety of the estate absolutely. I will formulate my orders. 33 I make the following orders: 1. I order that in lieu of the benefit given to her by the will of the late Kazys Sturaitis ("the deceased"), the plaintiff receive the entirety of the estate of the deceased absolutely. 2. I order that the costs of the plaintiff on the party and party basis and the costs of the defendant on the indemnity basis be paid out of the estate of the deceased. 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