Menaker v Kutalyov [2006] NSWSC 374

New South Wales Supreme Court

CITATION : Menaker v Kutalyov [2006] NSWSC 374

HEARING DATE(S) : 27 and 28 April 2006

JUDGMENT DATE : 4 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Summons dismissed.

CATCHWORDS : FAMILY PROVISION ACT - estate left to one of two daughters - small estate - estrangement between plaintiff and deceased until shortly before death - both daughters in poor health - plaintiff separated from husband at present time - documentary evidence that husband has considerable assets - no evidence of his assets put forward by the plaintiff

LEGISLATION CITED : Family Provision Act 1982

PARTIES : Era Hannah Menaker (Plaintiff) Anna Kutaloyov (Defendant)

FILE NUMBER(S) : SC 2773 of 2005

COUNSEL : Mr V Stefano (Plaintiff) Mr I E Davidson (Defendant)

SOLICITORS : Hunt & Hunt (Plaintiff) JSM Lawyers (Defendant)

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

WINDEYER J

THURSDAY 4 MAY 2006

2773/05 era hannah menaker v anna kutalyov

JUDGMENT

1 The plaintiff seeks an order under s7 of the Family Provision Act 1982 for provision out of the Estate of her father Igor Averbukh (the deceased) who died on 5 September 2004 aged 81.

2 The deceased left a will dated 23 June 1999 probate of which was granted on 12 April 2005 to the defendant, the other of his daughters.

3 Under the will, the deceased, after some small gifts of specific items of jewellery and the gift of his motor vehicle to his grandchildren, Stan and Marina Kutalyov, who are children of the defendant, gave the whole of the residue of his estate to Anna and nothing to the plaintiff.

4 The estate consisted of jewellery worth about $1,500, probably being the items subject to specific gift under the will, money in a savings account of $1,600 and a one half interest in property 2 Lever Street, Mascot (Lever Street). The other one half share in that property is held by the defendant. The one half share is worth somewhere in the vicinity of $300,000 to $320,000. The liabilities in the estate including funeral expenses have been paid out of the $1,600 and by the defendant from her own or borrowed funds. The net value of the estate is not likely to be more than $300,000 and after costs will be less than that.