Hildebrandt v Soncini [2007] NSWSC 1227

New South Wales Supreme Court

CITATION : Hildebrandt v Soncini [2007] NSWSC 1227

HEARING DATE(S) : 24/10/2007 and 25/10/2007

JUDGMENT DATE : 14 December 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 56

CATCHWORDS : Family Provision. Application by son. Estate transferred to grandson of deceased shortly before death. Consideration of whether property could be designated as notional estate. Order for legacy and designation of notional estate.

PARTIES : Alex Hildebrandt v Alessandro Francesco Soncini - Estate of Maria Hildebrandt

FILE NUMBER(S) : SC 2783/2006

COUNSEL : Mr K Morrissey for plaintiff Mr J Anderson for defendant

SOLICITORS : Low Doherty & Stratford Jackson Smith

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

ASSOCIATE JUSTICE MACREADY

Friday 14 December 2007

2783 of 2006 ALEX HILDEBRANDT v ALESSANDRO FRANCESCO SONCINI (Estate of the late Maria Hildebrandt) JUDGMENT 1 HIS HONOUR: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Maria Hildebrandt who died on 8 January 2006 aged 95 years. Her husband, Aleksander Hildebrandt had predeceased her in 1959 and she was survived by her son the plaintiff, and her daughter, Lidia Soncini. The last will of the deceased 2 The deceased made her last will on 28 April 2003 under which she appointed the plaintiff her executor and gave him the whole of her estate. The estate of the deceased 3 The plaintiff obtained probate of the last will. However the estate of the deceased only amounted to $350. This was because the deceased had transferred her home at 28 Oxford Street, Blacktown, her only substantial asset, to her grandson, Alessandro Francesco Soncini, the defendant. The transfer occurred on 17 May 2005, which was less than a year before the death of the deceased. The property was transferred for no consideration. The defendant is the son of the plaintiff's sister, Lidia Soncini. Family history 4 The deceased Maria Hildebrandt was born on 25 March 1911. She was aged 94 at her death. She married Aleksander Hildebrandt in 1935 in Russia. They had two children, Alex Hildebrandt, who was born in May 1938 in Belarusia and his sister, Lidia Soncini, born in August 1942. 5 Alex spent some time between 1943 and 1945 in German concentration camps and the family migrated to Australia in 1950. They lived in various migrant camps until Alex left the family in 1954 to work on the Snowy Mountains Scheme. 6 On 28 June 1955 Alex's parents purchased a property at 28 George Street, Riverstone which became the family home. Two years later they purchased land at Piccadilly Street, Riverstone. 7 The deceased's husband died on 22 April 1959. In early 1960 Alex returned to live with his mother, Maria, at her residence at George Street, Riverstone. 8 On 19 July 1960 Alex attempted to hijack an aircraft en route from Sydney to Brisbane. He was arrested and taken into custody. He had in his possession a sawn off shotgun, explosives and a detonating device. He had planned the hijack some time before the actual event. He remained in custody in Queensland and was tried on 26 September 1960. He was sentenced on 7 October 1960 after which there was an appeal to the Court of Criminal Appeal that was partially successful. As a result of his conviction Alex spent time in prison in Queensland until February 1963. In the Queensland proceedings various public defenders and public lawyers represented Alex. 9 On Alex's release from prison he was arrested by New South Wales police for several other NSW offences relating to his attempted hijacking and again taken into custody. In May 1963, after a trial that lasted for three days Alex was convicted in respect of these other matters related to the attempted hijacking. He appealed to the Court of Criminal Appeal in Sydney and the appeal was heard on 15 November 1963. A barrister instructed by Bruce Miles, solicitor, who had appeared for him on the trial, represented him. The appeal was successful and his conviction was overturned. However, in due course he pleaded guilty at the new trial and received a further term of imprisonment. At the time he was about to be released it was proposed that he would be deported to Russia. However as a result of other proceedings in which Mr Miles was involved the deportation did not occur and Alex was released from prison in 1966. 10 On 21 February 1966 Lidia purchased the property at 28 Oxford Street Blacktown. It is not disputed that Lidia paid the purchase price of £2,570 ($5,500) using her monies. The title of the property was put into the names of Alex and Lidia as Lidia thought it would assist her brother with his rehabilitation after his release from prison.