Bukovac v Baron [2001] NSWSC 62

New South Wales Supreme Court

CITATION : Bukovac v Baron [2001] NSWSC 62 FILE NUMBER(S) : SC 3169/00 HEARING DATE(S) : 1, 4 - 6 December 2000 JUDGMENT DATE : 20 February 2001

PARTIES : Marija Bukovac (Plaintiff) Carolina Dragica Baron (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : V. Stefano (Plaintiff) J. R. Wilson (Defendant) SOLICITORS : Leigh File & Associates, Solicitors (Plaintiff) John B Gray, Solicitor (Defendant) CATCHWORDS : Family Provision - Claim by widow - Marriage obtained for almost 40 years - Sole asset in estate is matrimonial home of Plaintiff and testator - Will gives entire estate to ex-nuptial child of testator - Without an order for provision Plaintiff will be left homeless and virtually destitute - Contributions made by Plaintiff to acquisition and improvement of matrimonial home - No competing claims - Conduct disentitling - Whether established - Effect upon Plaintiff's claim of any such conduct. LEGISLATION CITED : Family Provision Act 1982 District Court Act 1973 DECISION : See paragraph 57

1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were originally instituted in the District Court of New South Wales, but by order of the Supreme Court made on 20 June 2000 they were transferred to the Supreme Court pursuant to section 145 of the District Court Act 1973. 3 By summons filed on 14 September 1999 the Plaintiff, Marija Bukovac, claims an order for provision for her maintenance out of the estate and/or notional estate of her late husband, Franco Bukovac (to whom I shall refer as "the Deceased"). The Deceased (who had been born at Zagreb in Croatia on 2 November 1932) died, aged 65, on 22 October 1998. 4 The Deceased left a will dated 29 August 1997, probate whereof was on 20 August 1999 granted to his daughter Carolina Dragica Baron, the executor named in such will (who is the Defendant to the present proceedings). By the terms of that will the Deceased left the entirety of his estate to the Defendant. 5 The Plaintiff and the Deceased (who was born on 8 March 1933 in Croatia, and is now aged 67) married in April 1959 in a civil ceremony in Croatia. Of that marriage was born one child, Verena Bukovac, on 26 July 1959. Subsequently the Plaintiff and the Deceased underwent a religious ceremony of marriage in Germany on 24 August 1964. 6 Before his marriage to the Plaintiff there had been born to the Deceased a daughter Carolina Dragica Baron (the present Defendant) on 7 February 1956, that child having been born of a relationship between the Deceased and a lady named Anna Baron, in Croatia. The Defendant is presently aged forty-five. 7 The Deceased, the Plaintiff and their daughter Verena migrated to Australia from Germany in December 1967. Initially they lived in Newcastle, where the Deceased was employed as a steel worker by BHP. They subsequently removed to Sydney in December 1968. The Deceased worked for various employers from then until he finally relinquished employment in 1986. 8 In 1969 there was purchased in the name of the Deceased alone a house property situate at and known as 48 Ashmore Street, Erskineville. The purchase price of that property was $9,000. It was financed by a housing loan of $6,000 from the Rural Bank of New South Wales. The balance of the purchase price came from joint funds of the Plaintiff and the Deceased which they had brought with them from Germany. 9 Subsequently an extension was effected to the Erskineville residence in 1970, costing about $15,000. That was paid from joint savings of the Plaintiff and the Deceased. 10 The Defendant arrived in Australia on 25 October 1970, she at that time being aged fourteen . The Defendant resided with the Deceased and the Plaintiff in the Erskineville house from the time of her arrival until the end of 1972, when, at the age of sixteen, she moved into residence with Mrs Anica Zeljko and her family at Erskineville. 11 In 1989 the Plaintiff, who had been in employment for the preceding twenty-one years, retired. With her retirement funds the Plaintiff and the Deceased purchased a block of land at Manyana Beach (near Pandalong on the South Coast of New South Wales) for about $20,000. That land was sold two years later for $49,000. In 1982 a further extension, costing about $25,000, was effected to the Erskineville residence, being funded by proceeds from the sale of the land at Manyana Beach. 12 The assets in the estate of the Deceased consist of the house property at Erskineville (to which a valuation of $290,000 is ascribed, although it would appear that the present value is likely to exceed $300,000, perhaps as much as $320,000), together with an amount of $652 in a bank account with the Commonwealth Bank of Australia at Newtown. 13 Since the death of the Deceased the Plaintiff has continued to reside in the residence at Erskineville, and has paid all outgoings in respect of that property. 14 The assets of the Plaintiff consist only of personal effects, furniture and furnishings (to which she ascribes a total value of $5,000). The only income of the Plaintiff is a pension from the Department of Social Security, presently in an amount of $181-35 a week. 15 It will be appreciated that the practical effect of the will of the Deceased is to deprive the Plaintiff of her home. She has nowhere else to live. 16 It should also be recorded that shortly before the institution of the present proceedings the Defendant gave instructions that the Plaintiff should be required to pay rent for her occupation of the Erskineville house. 17 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. It will be appreciated that the Defendant, as a child of the Deceased, is also an eligible person, coming within paragraph (b) of that definition. The only other eligible person in relation to the Deceased is Verena Bukovac, the daughter of the Plaintiff and the Deceased. Although served with a notice of claim, Verena Bukovac has not made any claim against the estate of the Deceased. 18 It was acknowledged by Counsel for the Defendant that ordinarily, in a case such as this, where the estate is a modest one, a widow of a marriage which obtained for thirty-nine years would be expected to receive the entirety of her husband's estate absolutely. 19 In the instant case, however, the Defendant seeks to resist the claim of the Plaintiff, and seeks to enforce the provisions of the will of the Deceased. In doing so she relies upon the conduct of the Plaintiff, asserting that that conduct is of such a nature as to disentitle the Plaintiff from any order for provision an entitlement to which the Plaintiff might otherwise have established. 20 The conduct upon which the Defendant relies falls into three categories, as follows: