Boniadian v Boniadian Beniation v Boniadian [2004] NSWSC 499

New South Wales Supreme Court

CITATION : Boniadian v Boniadian Beniation v Boniadian [2004] NSWSC 499 HEARING DATE(S) : 1, 2 April 2004 4, 5 May 2004 JUDGMENT DATE : 10 June 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 88

CATCHWORDS : Family Provison. Applications by a daughter and a widow under Family Provision Act 1982. Daughter's blackmail of her mother was conduct disentitling in respect of the deceased. Claim refused. Further provision made for the widow. PARTIES : Emilia Boniadian v Katherine Boniadian Diana Beniation v Katherine Boniadian FILE NUMBER(S) : SC 5183 of 2003; 6243 of 2003 Mr L Ellison for plaintiff, Emilia Boniadian COUNSEL : Mr P Blackburn-Hart for plaintiff, Diana Beniatian Mr JR Wilson SC for defendant Walter Kissane & Plummer for plaintiff, Emilia Boniadian SOLICITORS : L Rundle & Co for plaintiff, Diana Beniatian Haylen McKenzie for defendant

- PAGE 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Thursday 10 June 2004

5183 of 2003 Emilia Boniadian v Katherine Boniadian 6243 of 2003 Diana Beniation v Katherine Boniadian (Estate of the late Boniad Boniadian) JUDGMENT 1 MASTER: This is the hearing of two applications under the Family Provision Act 1982 (NSW) (the Act) in respect of the estate of the late Boniad Boniadian who died on 11 June 2003 aged approximately 63 years. He was survived by his second wife, Emilia Boniadian, the plaintiff in matter 5183 of 2003, his daughter, Katherine Boniadian, the defendant in both proceedings. The plaintiff in proceedings 6243 of 2003 is the deceased's stepdaughter, Diana Beniation, who was the child of the deceased's first wife. In proceedings 5183 of 2003 there is also a claim to declare void the transfer, unilaterally severing the joint tenancy in respect of the property at 7 Carbeen Street, Wamberal which was the former matrimonial home of the deceased and his widow. The last will of the deceased 2 The last will of the deceased was made on 2 August 1996. Under that will he appointed his daughter, Katherine Boniadian, the executor and trustee. The deceased gave legacies of $5,000.00 to each of his three stepchildren. Paragraph 4 of his will was in these terms:- " I GIVE to HEROS BONIADIAN, DIANNA BONIADIAN and IDA BONIADIAN the children of my late wife VARTOOSH BONIADIAN the sum of Five thousand dollars ($5,000.00) each and I further state that I have made no further provision for them in this my Will for the reasons: a. that on the completion of the administration of the estate of my late wife VARTOOSH BONIADIAN in 1994 I gave to each of them the sum of Sixty thousand dollars ($60,000.00) and, b. Since my late wife's death I have had no contact with any of the said children." 3 Thereafter the deceased left a life estate to his widow of certain land described as a particular folio identifier. Because that land at Wamberal had been subdivided after the date of the will that folio identifier no longer exists and, accordingly, the gift to the plaintiff, widow has failed. He left the residue of his estate to his daughter, Katherine. Family History 4 The deceased's brother was married to Vartoosh Boniadian and they lived in Iran at that time. The brother and his wife had three children, Diana who was born on 24 February 1949, Ida, commonly known as Yvette born on 8 December 1955 and Heros born on 17 September 1946. The deceased's brother died in 1957 in an accident at his work. 5 The widow, Vartoosh Boniadian, married the deceased on 27 June 1962 and the three children lived together with the deceased and his new wife. On 24 November 1963 the deceased and his wife had a child, Katherine, who is the defendant in the proceedings. 6 In 1969 the family migrated to Australia and settled in Sydney. In 1971 the stepdaughter of the deceased, Diana, married David Bills and left home but she still lived in Australia. In 1976 they separated and Diana moved to Iran for a year before returning to Australia to live with her mother and the deceased for some three months. After three months she moved to Los Angeles where she married and had a son, Osheen. Unfortunately the marriage broke down a few months later and in December 1980 Diana and her son returned to Sydney where they lived with her mother and the deceased until early 1981 when she again returned to Los Angeles. 7 In 1983 Diana was joined by her mother and the deceased for approximately one year and they all lived together in Los Angeles. The deceased and his wife bought a dry cleaning business and Diana worked in that business for no wages. In 1984 the business failed and Diana's mother and the deceased returned to Australia. In 1985 Diana and her son were also living in Australia in one of the units at Bay Road, Waverton. They remained living there until 1986 when Diana and her son returned to Los Angeles. 8 In July 1986 the plaintiff's mother disclosed to Diana that she had been raped at age 7. The plaintiff said that something similar had occurred to her. This started numerous discussions between Diana and her mother as to the identity of the person who interfered with Diana. Eventually Diana was forced to disclose that the person was the deceased. 9 In December 1990 Diana sent her mother a letter in which it is said that she demanded money from her mother and if she did not give it to her then she threatened to disclose the deceased's actions to the family. The terms of the letter are in dispute. It caused a substantial rift between Diana, her mother and the deceased. 10 On 2 December 1991 Diana's mother, Vartoosh, committed suicide. Under her will she left $60,000.00 to each of her three children by her first marriage and the deceased paid these amounts to them. As there was no cash in the estate he probably had to raise funds by way of mortgage to pay the amounts. The residue of the estate went to the deceased. There was an estrangement at this time between the deceased, Diana, Heros and Yvette because of inter alia their demand for their funds. There was a reconciliation late in his life between the deceased and Heros and the deceased and Yvette. The deceased never spoke to Diana again. Indeed he did not speak to her after 1986. 11 In 1992 the plaintiff, Emilia Boniadian, met the deceased. At that stage she was not divorced from her third husband. She divorced her husband in 1994. 12 On 2 August 1996 the testator made his will to which I have referred. On 10 August 1996 there was a pre-nuptial agreement signed by the deceased and the plaintiff, Emilia Boniadian. All this agreement did was to recognise that each party had no claim on assets of the other party. No certificates of independent advice were given and the agreement does not contain any release of the right to make a claim under the Act. On 17 August 1996 the deceased and the plaintiff, Emilia, were married and they resided at Bay Road, Waverton. Early in 1997 the plaintiff, Emilia Boniadian, sold her coffee shop at Woolloomooloo and commenced to work in the deceased's dry cleaning business. 13 Diana and her son apparently returned to Australia in 1993. In 1996 Diana was diagnosed with breast cancer and underwent major surgery. By 1997 she was living in Housing Commission accommodation having been made bankrupt over a failed business venture. 14 The deceased had owned land at Wamberal which he subdivided into two parcels of land in 1998. On doing this a joint tenancy was created in respect of Lot 11 and on that lot a home was built during 1997 and 1998. The address of the matrimonial home was 7 Carbeen Street, Wamberal and the construction cost was approximately $350,000.00 which was secured by a mortgage with the National Australia Bank on the Bay Road, Waverton property. 15 Thereafter various "holiday cabins" were built on Lot 10 without appropriate council approval. 16 In December 1998 the deceased and his wife moved into the home at Wamberal and the following year they commenced to build two townhouses at 85 Bay Road, Waverton with funds secured by a mortgage on the Wamberal property. 17 Between April and May 2000 the deceased and his wife travelled overseas. On their return to Australia there was a break up in their relationship which lasted for a week or two. The deceased persuaded his wife to return to him and they lived together until January 2003 when there was a further separation. 18 In respect of this separation it is plain that the plaintiff, Emilia, left and travelled to Queensland where she obtained work. During this period the deceased arranged to sever the joint tenancy of the matrimonial home and there is a question of whether the plaintiff, Emilia was given notice of this application. There were various negotiations between the deceased and the plaintiff, Emilia, about a property settlement and these negotiations continued until early May 2003 when the deceased was diagnosed with pancreatic cancer. 19 On 24 May 2003 the plaintiff, Emilia, returned from Queensland to Wamberal to look after the deceased during his chemotherapy. He was readmitted to the Mater Hospital on 28 May 2003 and died in hospital on 11 June 2003. 20 Probate was granted on 7 August 2003 and these proceedings were commenced within time. 21 In November 2003 the plaintiff, Emilia, resumed occupation of the Wamberal home. Her son and his partner moved in with her in December 2003. Assets in the estate 22 The deceased left a gross estate valued at $3,334,877.00. This included a number of properties at Waverton, Artarmon and Wamberal as well as his half interest in the matrimonial home, 7 Carbeen Street, Wamberal. The half interest is valued at $460,000.00. 23 The deceased left a number of liabilities the secured liabilities amounting to $985,127.04 and his unsecured liabilities amounting to $461,653.04. The amount of the mortgage secured on the property at 7 Carbeen Street, Wamberal is $353,800.00. After allowing for liabilities the net estate is $1,888,97.00. By the time of the hearing the property at 46 Tumbi Road had been sold for $750,000.00 and the proceeds were expected in a few days. There was a dispute about the value of the Artarmon unit which was about to be put on the market. Valuations of $330,000.00 as at 3 April 2004 and $340,000.00 as at November 2003 are in evidence. There was no cross-examination of the valuers and accordingly I will adopt the latest valuation of $330,000.00. After allowing for the latest estimate of liabilities, apart from increased land tax, the estate had a net value at the date of hearing of $1,858,363.00. This takes account of only one half of the loan secured on 7 Carbeen Street, Wamberal. After the hearing the parties drew to my attention an additional liability for land tax of $35,294.10. This makes the net estate $1,823,068.90. 24 The parties in these proceedings have incurred the following costs. 25 Defendant's costs in both proceedings are estimated at $81,500.00. 26 The plaintiff's costs in matter 5183 of 2003 are estimated at $94,741.00 on a four-day basis. 27 The plaintiff's costs in matter 6243 of 2003 are estimated at $72,282.00 on a four-day basis. 28 The total of these estimates is $248,524.00 and they reduce the net estate to $1,574,544.90. 29 Included in this net value of the estate is the deceased's one half share in 7 Carbeen Street, Wamberal in the amount of $460,000.00. Before moving on it is necessary to determine whether or not that asset still remains in the estate. In the amended summons filed by the plaintiff in 5183 of 2003 on 1 April 2004 there were claims for declarations that the transfer severing the joint tenancy be declared void and that the defendant hold the deceased's one half share upon trust for the plaintiff, Emilia. 30 The application to sever the joint tenancy was made as a result of a transfer by the deceased to himself dated 8 April 2003. 31 Section 97 of the Real Property Act 1900 (NSW) is in the following terms: "97 Severance of joint tenancy by unilateral action (1) Registration of a transfer by a joint tenant of the joint tenant's interest in the land that is the subject of a joint tenancy to himself or herself severs the joint tenancy. (2) If a joint tenancy is proposed to be severed by unilateral action by one joint tenant, the Registrar-General may require the person who proposes to sever the joint tenancy to provide the Registrar-General, before recording the instrument that severs the joint tenancy, with: (a) the names and addresses of the joint tenants or, if the addresses are unknown, evidence of the efforts made by the person to locate the addresses of the joint tenants, and (b) a statement that the person is not aware of any limitation or restriction on his or her capacity or entitlement to sever the joint tenancy (arising, for example, from the capacity in which the person holds an estate or interest in the land concerned or from a private agreement). (3) The Registrar-General may require the person who proposes to sever a joint tenancy to provide additional information concerning: (a) other persons who may be affected by the severance of the joint tenancy, and (b) any limitation or restriction on the capacity or entitlement of the person to sever the joint tenancy, and (c) any other matter that the Registrar-General considers appropriate. (4) The Registrar-General may require any information provided for the purposes of this section to be provided by statutory declaration. (5) The Registrar-General must give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to all joint tenants in the joint tenancy (other than any joint tenant who executed the dealing, or on whose behalf the dealing was executed). Section 12A (2) and (3) applies to and with respect to a notice given under this section. (6) Despite subsection (5), the Registrar-General is not required to give notice of the lodgment of a dealing for registration or recording that may sever a joint tenancy to a joint tenant in any of the following circumstances: (a) if the proposed severance is to arise from the recording of a court order made in proceedings to which the joint tenant is a party, (b) if the proposed severance is to arise from the registration of a transfer pursuant to a writ in respect of an interest of any of the joint tenants, (c) if the dealing concerned is witnessed by the joint tenant and the dealing indicates that the joint tenancy is to be severed, (d) if the dealing is accompanied by a written acknowledgment by the joint tenant that he or she has received legal advice as to the effects of the severance of the joint tenancy, (e) if the proposed severance is to arise out of registration following an application under section 90."