Kennedy v Jvancich [2003] NSWSC 441

New South Wales Supreme Court

CITATION : Kennedy v Jvancich [2003] NSWSC 441 HEARING DATE(S) : 25, 26 March 2003 JUDGMENT DATE : 26 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Master McLaughlin DECISION : (1). Order that proceedings be stood over to a date to be fixed for the bringing in of short minutes.

CATCHWORDS : Succession - Family Provision - Claim by adult daughter - All assets of Deceased were held conjointly with his wife, the Defendant - Prescribed transactions - Notional estate - Financial and material circumstances of Plaintiff - Competing claim of Defendant - No grant of probate of will of Deceased - Letters of administration granted to another eligible person to enable a claim to be made - Whether separate grant of letters of administration must be made to each claimant LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration Act 1898 CASES CITED : Doyle v Smith (21 September 1995, Master McLaughlin, unreported) Singer v Berghouse (1994) 181 CLR 201 PARTIES : Kimm Kennedy (Plaintiff) Augustina Alcantara Jvancich (Defendant) FILE NUMBER(S) : SC 4910/00 COUNSEL : A. Smith (Plaintiff) R. Wilson (Defendant) SOLICITORS : Kelly & Agerholm, Solicitors (Plaintiff) Stacks Solicitors (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 May 2003

4910 of 2000 KIMM KENNEDY -v- AUGUSTINA ALCANTARA JVANCICH JUDGMENT 1 MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 7 December 2000 the Plaintiff Kimm Kennedy claims an order for provision for her maintenance and advancement in life out of the estate of her late father Kevin Norman Jvancich (to whom I shall refer as "the Deceased"). 3 It should here be observed that the Defendant named in that summons was Nadine Helen Van Komen. However, pursuant to an order made by the Registrar on 7 May 2002 the present Defendant, Augustina Alcantara Jvancich, was substituted as the Defendant to the proceedings. An amended summons (although entitled "summons"), reflecting that change in the identity of the Defendant, was at the outset of the hearing on 25 March 2003 filed by the Plaintiff, without objection by the present Defendant. 4 By that amended summons the Plaintiff also claims that provision be made for her education and advancement as well as for her maintenance, and that such provision be made out of the notional estate of the Deceased. By prayer 2 in the amended summons the Plaintiff identifies various assets which she seeks should be designated as notional estate of the Deceased. 5 The Deceased died on 7 June 1999, aged sixty-eight years (having been born on 31 May 1931). He left a will dated 15 May 1999. However, for reasons which will shortly emerge, that will has never been admitted to probate. By his will the Deceased appointed his wife Augustina Alcantara Jvancich and his son Vincent Muriti as executors. He gave a number of relatively small gifts (including a legacy of $5,000 to the Plaintiff) and gave the residue of his estate to his wife Augustina Alcantara Jvancich (who is now the Defendant to the present proceedings). 6 The Deceased had been married three times. There were born to the Deceased and his first wife Dorothy Joyce (née Hayes), whom he married in 1953, two children, being Kimm, the present Plaintiff (who was born on 21 May 1955 and is now aged forty-eight), and Nadine Helen (Mrs Van Komen) (who was born on 24 January 1964, after the divorce of the Deceased and Dorothy in about 1958, and is presently aged thirty-nine). 7 There were born to the Deceased and his second wife, Carmen Pasque Monopoli, whom he married in 1959, two children, being Brett Kennedy (who was born on 28 October 1961 and is presently aged forty-one) and Vincent Muriti (who was born on 28 December 1962 and is presently aged forty). The Deceased and Carmen divorced in about 1967. 8 The Deceased married Augustina Alcantara in the Philippines on 29 December 1976. No children were born of that marriage. The Defendant had been born in the Philippines on 28 August 1944 and is presently aged fifty-eight. 9 In 1990 the Deceased's father purchased for him a house in Wangee Road, Lakemba. That house property was sold by the Deceased in 1995 for $227,000. When the Deceased's father died in 1994 the Deceased under the terms of his will received one half of the residue of his father's estate, being in an amount of $282,743. With the proceeds of sale of the Wangee Road property and with his inheritance from his father's estate (benefits totalling almost $510,000) the Deceased purchased and sold a number of expensive motor vehicles and boats (one of the latter being purchased for $352,500 in 1995 and being sold for $280,000 in the following year). 10 As I understand the schedule prepared by the Defendant in respect to various purchases and sales made by the Deceased in the last five years of his life (Annexure F to the affidavit of the Defendant sworn 1 August 2002 and filed in proceedings 4859 of 2000), at least some of the items conjointly owned by the Deceased and the Defendant at the time of the death of the Deceased were purchased from the Deceased's inheritance from the estate of his late father in 1994, and from the proceeds of sale of the Wangee Road property in 1995. 11 In February 1995 the Defendant won $1,756,972.20 whilst playing Club Keno at the Lakemba Services Memorial Club. Later in 1995 the Deceased and the Defendant removed their residence from Sydney to Tuncurry on the North Coast of New South Wales. 12 At the time of his death the Deceased owned the following assets conjointly with the Defendant. He did not own any other assets. House property, 8 Palmway Crescent, Tuncurry (purchased in about 1996 for $210,000) House property, 32 Regency Circuit, Tuncurry (purchased in about 1997 for $165,000, subject to a mortgage of $80,000) Residential property, 4/56 Wharf Street, Tuncurry (purchased in about 1997 for $78,000) House property, 9 Palmway Crescent, Tuncurry (purchased in about 1995 for $395,000)