Hobbs v Maxymenko Jeske v Maxymenko (Estate of Wladimir Maxymenko] [2007] NSWSC 1226

New South Wales Supreme Court

CITATION : Hobbs v Maxymenko Jeske v Maxymenko (Estate of Wladimir Maxymenko] [2007] NSWSC 1226

HEARING DATE(S) : 22/10/2007, 23/10/2007, 24/10/2007

JUDGMENT DATE : 12 December 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraphs 82 and 83

CATCHWORDS : Family Provision. Application by daughter and grandchild. Legacy for daughter. Grandchild's claim dismissed as no dependency upon the deceased.

PARTIES : Janna Hobbs v Harry Waldemar Maxymenko Lisa Jayne Jeske v Harry Waldermar Maxymenko

FILE NUMBER(S) : SC 4827/2005; 5924/2005

Mr JS Drummond for Janna Hobbs COUNSEL : Miss I Ryan for Lisa Jeske Mr P. O'Loughlin for defendant

Armsrong Legal for Janna Hobbs SOLICITORS : Braye Cragg for Lisa Jeske Hancock Alldis & Roskov for defendant

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

Associate Justice Macready

Wednesday 12 December 2007

4827/2005 Janna Hobbs v Harry Waldemar Maxymenko

5924/2006 Lisa Jayne Jeske v Harry Waldemar Maxymenko JUDGMENT 1 His Honour: This is the hearing of two proceedings under the Family Provision Act 1982 in respect of the estate of the late Vladimir Maxymenko who died on 8 March 2004. The deceased was survived by his daughter, Janna Hobbs, who is the plaintiff in proceedings 4827/2005 and by his son, Harry Maxymenko, the defendant in both the proceedings. The plaintiff in proceedings 5924/2006 is Lisa Jane Jeske a granddaughter of the deceased. Her father, George Maxymenko, was a son of the deceased who predeceased his father. The last will of the deceased 2 The last will of the deceased was made on 28 March 2003 in which he appointed his son Harry Waldemar Maxymenko ("Harry") as his executor. Apart from a bequest of a 1991 Ford Laser station wagon the will of the deceased provided for his real property, being the balance of his estate, to pass as follows: "4. I GIVE my real estate property situated and known as number 202 Wallsend Road, Cardiff to my said grandson, James Joseph Maxymenko and my said granddaughter Holly Alina Maxymenko in equal shares as tenants in common. 5. I GIVE my real estate situated at number 204 Wallsend Road, Cardiff to my said son Harry Waldemar Maxymenko and my son George Juan Maxymenko as tenants in common in equal shares PROVIDED HOWEVER that if my said son Harry Waldemar Maxymenko shall predecease me then I give his one half share of this property to his children James Joseph Maxymenko and Holly Alina Maxymenko in equal shares as tenants in common and PROVIDED FURTHER that if my said son George Juan Maxymenko shall have predeceased me then I GIVE his one half share in the said property to my son Harry Waldemar Maxymenko. In the event that both my sons Harry Waldemar Maxymenko and George Juan Maxymenko shall have predeceased me then I GIVE the real estate property number 204 Wallsend Road, Cardiff to my said grandson James Joseph Maxymenko and my granddaughter Holly Alina Maxymenko in equal shares in tenants in common." 3 In clause 7 of the will the deceased stated as follows: "I deliberately made no provision in this my Will for my daughter Janna Klara Maxymenko (now Hobbs) for the following reasons: (a) In 1982 upon my retirement from BHP I paid to my said daughter Janna a sum of thirty four thousand dollars ($34,000) in order to discharge the mortgage which she and her husband had in respect of their property 3 Duff Place, Castle Hill. (b) In 1982 also upon my retirement from BHP I paid to the children of Janna, namely Adrian and Devina sums of seven thousand dollars ($7,000) each. (c) My said daughter Janna has had no contact with me for fifteen (15) years and neither have her children. I have been a resident of Tinonee Gardens for approximately five (5) years. As the date of this my will and my daughter Janna has not revisited me, nor made contact with me. all of my affairs are looked after by my said son Harry Waldemar Maxymenko." 4 The errors in this declaration were the subject of much evidence in the case. Assets in the estate 5 Apart from a motor vehicle and personal effects the estate consisted of two parcels of land, they being number 202 and number 204 Wallsend Road, Cardiff. At the date of the deceased's death those properties were valued at $280,000 for the former and $190,000 for the latter. The parties are agreed that at the time of trial they have a total value of $785,000. No separate valuation was available. 6 The estimates of costs of the proceedings are as follows.