New South Wales Supreme Court CITATION : Strojczyk v Kopycinzki [2006] NSWSC 589 HEARING DATE(S) : 27 January 2006 JUDGMENT DATE : 16 June 2006 JURISDICTION : Equity Division JUDGMENT OF : Associate Justice McLaughlin at 1 DECISION : I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect the foregoing proposed orders. CATCHWORDS : Succession. Family Provision. Claim by elderly widower. Marriage of almost eighteen years. Financial and material circumstances of the Plaintiff. Whether Plaintiff has been left without adequate provision for his proper maintenance. Need of Plaintiff for accommodation. Competing claims of Deceased's children (who are chief objects of her testamentary beneficence). LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731 PARTIES : Henryk Strojczky (Plaintiff) Eva Kopycinzki (Defendant) FILE NUMBER(S) : SC 1226 of 2005 COUNSEL : Mr. L. Ellison SC (Plaintiff) Mr. C. M. Simpson (Defendant) SOLICITORS : Doherty Partners (Plaintiff) Philip Goldman & Co (Defendant) - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Friday, 16 June 2006 1226 of 2005 HENRYK STROJCZYK –v- EVA KOPYCINZKI JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 27 January 2005 Henryk Stojczyk claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of his late wife Gladys Strojczyk (also known as Gladys Bush) (to whom I shall refer as "the Deceased"). 3 The Deceased died on 23 July 2003, aged 77. She left a will dated 21 March 2000, probate whereof was on 7 October 2003 granted to Eva Kopycinski, the executor named in such will (who is the Defendant to the present proceedings). 4 The Plaintiff and the Deceased married on 2 November 1985. Each of them had previously been married (the Deceased had been twice widowed), and each had adult children, who were no longer dependent upon them. No children were born to the marriage of the Plaintiff and the Deceased. 5 By her will the Deceased gave to the Plaintiff a legacy of $10,000, as well as her household furniture (which phrase included certain specified chattels). She gave the residue of her estate to her three children Roman Busz, Henryk Bush and Eva Kopycinski in equal shares. 6 The inventory of property discloses the assets of the Deceased, together with the estimated values thereof, as follows, Unit 2, 18-20 Norfolk Street, Liverpool - $330,000 Commonwealth Bank savings account - $26,021 Furniture and contents - $2,000 Jewellery - $5,000 7 The inventory of property also discloses a Commonwealth Bank savings account held jointly with the Plaintiff (having a nominal credit balance), and a Ford Laser motor vehicle, also owned jointly with the Plaintiff, having an estimated value of $1,000. 8 At the outset of the proceedings it was noted that the home unit at 2/18-20 Norfolk Street, Liverpool (to which I shall refer as "the Liverpool unit") had an agreed value of $275,000. 9 The liabilities of the estate (consisting essentially of funeral and headstone expenses and legal costs and disbursements in respect to the grant of probate and transmission of assets), totalling almost $13,500, have been paid. No part of the estate has been distributed. (I would here interpolate that, somewhat curiously, the Plaintiff, despite his asserted needs, has not seen fit to arrange for payment of the legacy of $10,000 given to him by the will of the Deceased. This is despite a request by the Solicitors for the Defendant on 22 January 2004 seeking from his Solicitors the Plaintiff's instructions as to how he desired the legacy to be paid.) 10 In calculating the value of the estate available for distribution the costs of the present proceedings must be taken into consideration. It was estimated on behalf of the Plaintiff that his costs will total about $32,000, whilst it was estimated on behalf of the Defendant that her costs will total about $29,500. Accordingly, it is appropriate that the Court should proceed upon the basis that the value of the estate available for distribution is about $246,500. 11 The Plaintiff was born on 8 July 1923, and is presently aged 82. 12 At the time when they met in late 1984 the Plaintiff was residing in a house property owned by him at 1A Carinda Street, Ingleburn. He also owned a Cortina motor vehicle, and had some savings. The Deceased at that time owned a house property at 81 Jocelyn Street, Chester Hill. The Plaintiff and the Deceased originally met at a Polish club in Bankstown in late 1984. According to the Plaintiff, they began dating, and regularly slept with each other at the residence of one or the other. Ultimately the Plaintiff moved into the Deceased's residence at Chester Hill in about January 1985. He thereupon rented out his property at Ingleburn, receiving about $150 a week in rent. At that time the Plaintiff was in receipt of a pension from the Department of Veterans Affairs. Apparently the Deceased was in receipt of some form of a pension from Centrelink at that time. Upon the Plaintiff moving into residence with the Deceased they each notified Centrelink of the changes in their living arrangements. The Deceased's pension was apparently stopped by Centrelink for some period, but ultimately she began to receive a pension through the Department of Veterans Affairs. 13 The Plaintiff and the Deceased married on 2 November 1985, at that time the Plaintiff being aged 62 and the Deceased being aged 59. The Defendant and other members of the Deceased's family were present at the wedding However, it was the evidence of the Plaintiff that thereafter there was little contact by the Deceased's children with the Deceased or the Plaintiff. That assertion was disputed by the Defendant and her brothers. 14 According to the Plaintiff the marriage of himself and the Deceased was a happy and loving one. He gave evidence of the work which he performed in maintaining and enhancing the Chester Hill residence. 15 After they had been married for a little over eleven years the Deceased suffered a cerebral haemorrhage in about February 1966, whilst she and the Plaintiff and another couple were vacationing at Culburra. The Deceased was admitted to the Nowra Hospital, where she remained for about a week. During that time the Plaintiff was in daily attendance upon her, and assisted in her day to day care at the hospital. The Deceased was transferred from the Nowra Hospital to a rehabilitation centre at Lidcombe, where she remained for a further month. The Plaintiff travelled from the Chester Hill residence to the rehabilitation centre twice a day and assisted with the feeding of the Deceased, and changing her clothes. Eventually the Deceased became well enough to return home. However, it was necessary for her to attend at the Lidcombe rehabilitation centre for therapy once or twice a week. The Plaintiff accompanied her to each of those sessions, and assisted her in performing prescribed exercises. 16 As a result of the cerebral haemorrhage the Plaintiff's right side was greatly impaired, and she suffered impairment to her speech for a period. However, the Plaintiff was able to understand her needs and requirements. From the time when the Deceased returned home from the rehabilitation centre the Plaintiff performed all domestic tasks and duties in the household, and attended to all the personal needs and requirements of the Deceased, including getting her out of bed and dressing her. He attended the pharmacy for her prescriptions, and regularly took her to appointments with doctors or other health professionals. 17 The Plaintiff soon began to look for another residence for himself and the Deceased, more conveniently located to a hospital than was the Chester Hill residence. In April 1997 the Plaintiff sold his residence at Ingleburn for $120,000, and purchased for $90,000 a home unit at 21-23 Lachlan Street, Liverpool, which was located very close to the Liverpool Hospital. Shortly after he had settled the purchase of that property the Plaintiff displayed it to the Deceased. However, she was not happy with the home unit, and refused to leave her Chester Hill residence. The Plaintiff then arranged to have the Lachlan Street unit tenanted, and he and the Deceased continued to reside in the Chester Hill residence. 18 In about late 1997 the Plaintiff located the property situate at and known as 2/18-20 Norfolk Street, Liverpool, which now constitutes the chief asset in the estate of the Deceased. That home unit was under construction when the Plaintiff located it. However, he displayed to the Deceased a sample unit in the same building, and the Deceased was happy for them to acquire it. According to the Plaintiff, he lent to the Deceased the amount necessary for a holding deposit from the balance of $20,000 which he had from the proceeds of sale of his Ingleburn residence and the purchase of the home unit at Liverpool. That advance by the Plaintiff to the Deceased was repaid out of the proceeds of sale of her Chester Hill residence. The Norfolk Street unit was purchased in the name of the Deceased on or about 8 May 1998 for $164,000. That purchase was financed from the proceeds of the sale of the Chester Hill residence, for $215,000 in March of that year. The Plaintiff and the Deceased then moved into residence in the Norfolk Street property. 19 Thereafter the Plaintiff continued to look after the Deceased, to attend to all her personal and health requirements, and to attend to all aspects of their domestic routine until the death of the Deceased some five years later. The Deceased was suffering considerable difficulty with her mobility during that period. She was totally dependent upon the Plaintiff. 20 The Plaintiff is presently in receipt of a pension from the Department of Veterans Affairs in an amount of $219.85 a week (which is paid fortnightly in the sum of $439.70). That pension is a consequence of the Plaintiff's service in World War II. That service also entitles the Plaintiff to receive certain fringe benefits. He also receives rental from the Lachlan Street unit in the net sum of $138.45 a week. (That is, his present weekly income is $358.30). The Plaintiff gave evidence of outgoings totalling about $320 a week. 21 The Plaintiff's chief asset is the Lachlan Street unit, which is unencumbered, and which has a present agreed value of $175,000. 22 The Plaintiff has a CBA Pensioner Security account, having a credit balance of almost $19,000. He also owns a 1986 Ford Laser motor car, to which he attributes a value of about $1,000. He has owned that motor vehicle for about 18 years, and drives it very little, essentially only for his shopping. 23 The Plaintiff suffers from rheumatoid arthritis, for which he obtains relief by taking Aspirin or Panamax. He also achieves relief from the pain by massage and uses a battery operated massager. The Plaintiff gave evidence concerning the state of the furnishings and furniture in the Norfolk Street unit, and of the need to replace various appliances. 24 The Plaintiff expressed a wish to remain living in the Norfolk Street unit, which is located on the ground floor (thus providing ease of access for the Plaintiff, who experiences some difficulty in climbing stairs). It is also convenient to the shopping centre and to the RSL club which the Plaintiff patronises. He said that he is friends with his neighbours in the building. 25 The claim of the Plaintiff must be approached in the light of the competing claims of the three children of the Deceased, who are the chief chosen objects of her testamentary beneficence. 26 The Defendant was born on 14 August 1955, and is presently aged 50. She and her two brothers are the children of the marriage of the Deceased and her first husband, Antoni Bush, who died on 21 October 1975. 27 The Defendant married on 24 July 1976. Her husband, Leszek Kopycinski, is presently aged 55. They have three children, all adults, and all in full-time employment. One of their children married in 2005. The other two continue to reside in the family home at St. John's Park. The Defendant is not currently employed. She assisted in caring for her husband's aged father until his death on 13 September 2005. She is now the carer for her mother-in-law, who is aged 86. 28 After leaving school in 1970 the Defendant worked until the birth of her first child in 1978. She re-entered the workforce in about 1986 after her youngest child commenced pre-school. Initially the Defendant was working part-time. Her last paid employment was with the Mt. Druitt Shopping Centre as a merchant administrator for six months, concluding in march 2002. Before that she had worked as an administration officer for the Fairfield City Council for four years and as a collection officer with the ANZ bank for 16 years. 29 In 1998 the Defendant was diagnosed with lymphoma, and in 1999, was diagnosed with cancer of the uterus, for which latter condition she underwent surgery and was treated with radiotherapy. Apparently that treatment was successful. The Defendant suffers high blood pressure and has a peptic ulcer. She also suffers from headaches and from gastric reflux, for which condition she takes medication. Excessive stress causes her to shake and to become very emotional, and she said that she did not consider that she would be able to return to the workforce. 30 The Defendant's husband is in full-time employment as a hairdresser in a salon at Parramatta, where he has worked for the same employer for more than thirty years. 31 As well as their family home at St. John's Park (to which an estimated value of $500,000 was ascribed), the Defendant and her husband also own a cottage at South West Rocks (to which a value of $260,000 was ascribed, although it had been purchased for $278,000), motor vehicles (having a total estimated value of $11,000), moneys invested with the St. George Bank ($60,000), furniture ($5,000), 444 shares in IAG. The Defendant has a superannuation entitlement in an amount of $21,000, whilst her husband has a superannuation entitlement in an amount of $20,000. In her affidavit evidence the estimated total value of the assets of the Defendant and her husband was given as $874,400. However, the foregoing figures (some of which emerged under cross-examination) disclosed assets well in excess of that amount. 32 The chief liability of the Defendant and her husband is a mortgage to the St. George Bank in an amount of $144,000 (which I assume is in respect to the family home), amounts outstanding on credit cards ($500), and income tax assessed but not yet paid ($25,000), totalling $175,500. 33 The Defendant and her husband have a total weekly income of $880, which consists essentially of her husband's earnings of $600 a week, interest on moneys invested ($50), rent from the South West Rocks cottage ($180), and carer's allowance (which is received by the Defendant in respect to her mother-in-law) ($50). They estimated that their weekly expenses totalled $846. 34 In mid-January 2006, very shortly before the hearing of these proceedings, the Defendant and her husband separated. The Defendant said that at that stage they had not begun to discuss financial issues between themselves. 35 Roman Busz (to whom I shall for convenience, and without intending disrespect, refer as "Roman") was born on 22 July 1953, and is presently aged 52. He is a married man, residing with his wife (who is of a similar age to Roman) and their five children (whose ages range between 24 and 11). 36 Roman is employed in a full-time managerial position, receiving a gross amount of about $942 a week. His wife is in part-time permanent employment as a registered nurse, and receives about $962 gross a week. They estimate their weekly expenses as totalling $1,582, (which figure includes a mortgage repayment of $300). 37 Roman and his wife own their residence at Baulkham Hills (which has an estimated value of $500,000), which is subject to a mortgage presently in an amount of $107,000. Their other assets consist of a motor vehicle (to which an estimated value of $28,000 was ascribed), furniture (to which an estimated value of $10,000 was ascribed) and 1,097 IAG shares. Roman has a superannuation entitlement in an amount of $56,000, whilst his wife has a superannuation entitlement in an amount of $28,000. In addition, they jointly hold life policies to a total value of $530,000. 38 Apart from the mortgage on their residence, the only other liabilities of Roman and his wife are indebtedness on credit cards, totalling $9,000. 39 Henryk Bush was born on 10 April 1961, and is presently aged 45. He married in August 1981, but separated from his wife in March 2005. Henryk (to whom I shall for convenience, and without intending disrespect, so refer) and his wife have two adult children, neither of whom is financially dependent upon him. 40 Henryk, who resides in Tasmania, is employed in a full-time position as a TAFE teacher, receiving a gross income of $1,044 a week. He estimates his expenses as totalling $821 a week. 41 Henryk's assets include a joint interest, with his wife in a house property at 56 Forest Road, Trevallyn (having an estimated value of $260,000, of which his entitlement was estimated at $130,000), and a joint interest with his wife in a residential property at Invermay in Tasmania (having an estimated value of $150,000, of which his entitlement was estimated at $75,000). Henry owns a motor vehicle (to which an estimated value of $2,000 was ascribed) and furniture (to which an estimated value of $2,000 was ascribed). He has savings of $1,000 and has a superannuation entitlement of $20,000. 42 Henryk's liabilities include his share of the mortgage over each of the aforesaid properties (being in amounts of $32,500 and $45,000 respectively), a personal loan of $7,500, indebtedness on credit cards totalling $4,400, and a prospective liability to his wife in an amount of $26,000. His total liabilities are in an amount of $115,400. 43 Henryk and his wife have reached agreement concerning property settlement. It is proposed that he will retain the property at Invermay, subject to the $65,000 mortgage, whilst his wife will retain the property at Trevallyn, subject to the mortgage of $90,000. Henryk will then pay $26,000 to his wife, by way of a balancing adjustment. 44 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 45 The Plaintiff as the widower of the Deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. Each of the three children of the Deceased, who are the chief objects of the testamentary beneficence of the Deceased, is also an eligible person, each coming within paragraph (b) of the foregoing definition. 46 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin (2005) 79 ALJR 731) the Court must determine whether in consequence of the terms of the will of the Deceased the Plaintiff has been left without adequate provision for his proper maintenance. 47 By her will the Deceased gave to the Plaintiff a legacy of $10,000 and her household furniture. She did not make any provision for where the Plaintiff should reside. Presumably she gave consideration to the fact that at the time when she made her will the Plaintiff was the owner of the Lachlan Street unit. However, if he chooses now to reside in that property, then he will lose the benefit of the rent which he receives from that property, in an amount of $138 a week. Thus his net weekly income will be reduced from $358 to $220. I am satisfied that in those circumstances the Plaintiff has been left without adequate provision for his proper maintenance. 48 The Plaintiff has expressed a desire to continue residing in the Norfolk Street property, and has sought an order that he receive that property absolutely. It was submitted on behalf of the Defendant, however, that it is not appropriate that the Plaintiff should receive the Norfolk property absolutely (or, indeed, that he should receive any interest therein). Were he to do so (the submission ran), it is likely that his own estate (presumably, his own children) would receive the benefit of that property within the next few years, and that the Deceased's own children would, for practical purposes, receive nothing. 49 It seems to me that the needs of the Plaintiff regarding accommodation can properly be addressed by the making of an order which would give to the Plaintiff a right of residence in the Norfolk Street property for his lifetime, with provision for the Defendant to acquire for him a substitutionary residence, should the circumstances of the Plaintiff change, to make it no longer practical or appropriate that he should remain in the Norfolk Street residence. 50 The claims of the three children of the Deceased are the only competing claims upon the testamentary bounty of the Deceased. Their claims were recognised by the Deceased herself, by making them the chief objects of her testamentary beneficence. 51 A considerable quantity of evidence was directed to the extent of the services performed for the Deceased (especially during the period after she suffered her cerebral haemorrhage) by each of the Plaintiff and the three children of the Deceased. It should be appreciated that an order for provision is not made as a reward for services performed by an applicant. Neither is such an order withheld as punishment for perceived poor conduct on the part of an applicant. 52 It is not necessary for me to make findings in respect to each and every one of the incidents referred to in the affidavit evidence, where those incidents are asserted by either the Plaintiff or by one or more of the three children of the Deceased, and are disputed by the children or by the Plaintiff. I would, observe, however, that, despite the assertions to the contrary made by the three children, the Plaintiff, especially after the Deceased suffered her stroke, had the chief, almost the sole, responsibility for looking after and caring for the Deceased and for maintaining their residence. In saying that, I intend no criticism of the three children, recognising that each had her or his own family responsibilities, and that throughout the last six years of the Deceased's life her son Henryk was resident in Tasmania, and was able to see his mother only on limited occasions. 53 It should be emphasised that the claim of an applicant for provision must be established upon its own merits. Whilst each of the children of the Deceased is in a better financial position than the Plaintiff, that fact does not in any way enhance the claim of the Plaintiff. The financial and material circumstances of the three children can have the effect only of reducing, or even extinguishing, an order for provision an entitlement to which the Plaintiff might otherwise have established. They cannot have the effect of enhancing his claim. In the circumstances of the instant case, I do not consider that the competing claims of the three children of the Deceased have the effect of reducing, let alone extinguishing, an order for provision for the Plaintiff of the nature to which I consider he has established an entitlement, being an order for a right of residence for his life in the Norfolk Street unit (or in any substitutionary residence). 54 Accordingly, I propose orders along the following lines, that, in addition to the benefits given to him by the will of the late Gladys Strojczyk ("the Deceased"), the Plaintiff receive a right of residence in the house property situate at and known as unit 2/18-20 Norfolk Street, Liverpool for his life, with an entitlement, should he so direct, for a substitutionary residence to be acquired for him by the Defendant, to be held by her on like terms as to the right of residence by the Plaintiff. The costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis should be paid out of the estate of the Deceased. The exhibits should be returned. 55 I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect the foregoing proposed orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.