Mikulic v Public Trustee [2006] NSWSC 256

New South Wales Supreme Court

CITATION : Mikulic v Public Trustee [2006] NSWSC 256 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 4 and 5 April 2006

JUDGMENT DATE : 11 April 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Family Provision. Claim by adult daughters who were left the residue of the estate equally. No matter of principle. Order for adjustment of shares taken by beneficiaries and reduction of the amount of pecuniary legacies to other relatives.

PARTIES : Mira Mikulic v Public Trustee (Estate of Maria Mikulic) Susan Mikulic v Public Trustee (Estate of Maria Mikulic)

FILE NUMBER(S) : SC 6525 of 2004; 2034 of 2006

Mr John Drummond for Mira Mikulic COUNSEL : Mr Ross Hanrahan for Susan Mikulic Mr J. Kildea for Public Trustee

Turnbull Hill Lawyers for Mira Mikulic SOLICITORS : Athena Touriki for Susan Mikulic Mr B Maher solicitor for Public Trustee

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

Associate Justice Macready

Tuesday 11 April 2006

6525/04 Mira Mikulic v Public Trustee (Estate of Maria Mikulic) 2034/06 Susan Mikulic v Public Trustee (Estate of Maria Mikulic) JUDGMENT 1 His Honour: This is the hearing of two claims under the Family Provision Act 1982 (the Act) in respect of the estate of the late Maria Mikulic who died on 15 July 2004 (the deceased). Her two daughters, both of whom have brought proceedings under the Act, survived the deceased. I have ordered that the proceedings be heard together and that the evidence in one be evidence in the other. The will of the deceased 2 The deceased made her last will on 20 April 2004 shortly before her death in which she appointed the Public Trustee as executor. That will provides for the distribution of the deceased's estate as follows: (i) Specific legacies (a) to be held on trust for Barbara Mrazova (Jnr) $100,000 (b) to be held on trust for Michaela Polcin $50,000 (c) to be held on trust for jointly Maria Polak and Daniel Polak $ 50,000 Total $200,000 (ii) One half share of the rest and residue to Susan Mikulic; and (iii) One half share of the rest and residue to Mira Mikulic. 3 The provision to the plaintiff Mira Mikulic (Mira), is made subject to the repayment of a loan by the deceased to Mira to which I will shortly refer and this appears in clause 6 of the will. 4 In clause 7 of the will the deceased provided reference to a document in which she set out the reasons why she did not make greater provision for her daughter Mira. The terms of that document are as follows: "After the death of my husband and her father Jozef Mikulic she wanted 2/3 of the house to be transferred to her and nothing to my other daughter Susan, nothing at all with reasoning that she was the one who arranged the funeral and all other matters, because Susan was still studying in Vienna, and that is why she does not deserve anything. I told her that while she was in Vienna and we were building a house in Hobart, it was Susi helping her father with building and helping me to run the household as I was doing shiftwork. After my husband's death several of my compatriots offered to help me with everything, but Mira refused all their offers of help, she decided to do everything by herself. Since I did not agree with her decision, because Susi is also my daughter and they both should receive an equal share, she became very cross with me, quarrelled with me all the time, shouted at me, spreading rumours about me being such a bad mother, and did not have a nice word for me. She even told me she hopes that God will not punish her in such a way that I will live for long. Susi came from Vienna for her father's funeral, Mira only argued with her, she even physically attacked her. I almost had an heart attack, I could never leave them on their own, I don't know what would have happened. Since that day she stopped talking to her sister, she hates her, spreads gossip about her. She also said that Susi would die before she does and she would inherit the whole lot. To this day when I am writing this she does not speak with me, it has been twenty years. Mira talks everywhere in public how she cares for me, how much she helps me. But whenever anybody comes to see me they can see straightaway how she cares for me and how she helps me. She always expects me to serve her, often, even in front of other people, she would call me a cow and a swine, to this day she has no respect for me. Talking about help, I am the one who is helping her all the time. There is a proof even now, under the pressure from her I gave her 100 000.00 dollars loan mortgaging my house. Her commentary was that it is her entitlement, she needs money now and will not wait until my death. And so I live the last part of my life with such stress which brings a lot of bitterness into my life since my husband's death as she tells me all the time how much she helps me and gets no reward. I am writing this with broken heart, but I have to do it to protect my daughter Susi, because I know that after my death she will attack her and will want to inherit everything because she took care of me." 5 Some years earlier the deceased had made wills leaving her estate to her daughters equally but made no provision for her relatives in Slovakia. Assets in the estate 6 At the date of her death the deceased owned her property at 24 Flora Street, Arncliffe; personal effects; cash at bank and a 1991 motor vehicle. Mira also owed the deceased $70,368. This loan arose on 25 January 2004 when the deceased took out a loan with the St George Bank secured over the property at 24 Flora Street, Arncliffe for the purposes of advancing to Mira $100,000. This was to enable Mira to set up a business and pay off liabilities for Capital Gains Tax she had incurred on the sale of her Brisbane properties. On 13 February 2004, Mira repaid $30,000 of that sum reducing the amount owed to the deceased to $70,000. Thereafter Mira made various monthly payments of $500 in respect to that loan. At the date of the deceased's death the balance remaining being $70,368. 7 On 23 August 2005 settlement occurred on the deceased's property at 24 Flora Street, Arncliffe. The Public Trustee sold the property to Mira by public auction for the sum of $650,000. 8 After the realisation of the assets and the payment of all debts, including the loan to St George Bank and commission, the estate account balance as at 30 March 2006 was $524,278.53. 9 There are substantial costs, which have been incurred in the matter to date. These have been estimated as follows: