Wlodarczyk v Public Trustee of New South Wales [2006] NSWSC 493

New South Wales Supreme Court

CITATION : Wlodarczyk v Public Trustee of New South Wales [2006] NSWSC 493

HEARING DATE(S) : 05/05/06

JUDGMENT DATE : 26 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Costs of both parties to be paid out of estate on the indemnity basis. Whole of balance of estate to be transferred to plaintiff.

CATCHWORDS : SUCCESSION - family provision - application by widow - thirty year marriage - widow receives home by survivorship and half estate - other half left to ex-nuptial child of deceased who never formed part of deceased's household and with whom deceased had infrequent contact - home in need of extensive repair - widow in immediate need of various necessities - inadequate fund to meet these needs and to provide for contingencies

LEGISLATION CITED : Family Provision Act 1982, s.7

CASES CITED : Golosky v Golosky, NSWCA, unreported, 5 October 1993 Singer v Berghouse (1994) 181 CLR 201

PARTIES : Wladyslawa Wlodarczyk - Plaintiff Public Trustee of New South Wales - Defendant

FILE NUMBER(S) : SC 2605/05

COUNSEL : Ms M.T. Bridger - Plaintiff Mr C.M. Wilson - Defendant

SOLICITORS : Bilbie Dan - Plaintiff B. Maher - Solicitor for Public Trustee

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY, 26 MAY 2006

2605/05 WLADYSLAWA WLODARCZYK v PUBLIC TRUSTEE OF NEW SOUTH WALES JUDGMENT 1 The plaintiff seeks an order under s.7 of the Family Provision Act 1982 that provision be made for her maintenance and advancement in life out of the estate of Zygmunt Szepan Wlodarczyk ("the deceased"). 2 The plaintiff is the widow of the deceased. They were both born in Poland, the deceased in 1922 and the plaintiff in 1932. They married there in 1972. The plaintiff had previously been married and had two daughters. The deceased had also previously been married but it appears that there were no children of that marriage. The deceased did, however, have one son, Tadeusz Ryaczewski. The son was born in France in 1945 as a result of a relationship between the deceased and a Polish woman when both were working as conscripted labourers under the German occupation. The son never formed part of the deceased's household. He was brought up by his mother and the husband she later married. There were no children of the marriage of the plaintiff and the deceased. 3 The deceased died on 4 November 2003. He had made a will on 6 February 1991 naming the plaintiff and his sister-in-law as executrices. Both renounced probate. A grant of letters of administration with the will annexed was in due course made to the Public Trustee on 2 June 2005. 4 By his will, the deceased purported to devise to the plaintiff "my property situate and known as No 53 Alfred Street, Waratah" (this was their home). That property was, however, held by the deceased and the plaintiff as joint tenants, so that it passed to the plaintiff by operation of law in consequence of her surviving the deceased. The will directed that the residue, after payment of debts and expenses, be divided equally between the plaintiff and the deceased's son Tadeusz. In the events which happened, the only assets recorded in the inventory attached to the letters of administration were a property at 1 Hewson Street, Mayfield (valued at $190,000) and a sum of $5,405.97 being rent from that property held by estate agents. It is accepted that the Mayfield property was an investment property acquired by the deceased after his retirement. 5 The plaintiff maintains that she should have the whole estate. 6 The plaintiff and the deceased came to Australia less than a year after their marriage in 1972. One of the plaintiff's daughters (then aged 9) came with them. They lived from the beginning in the Waratah property. The deceased worked until retiring age but would not let the plaintiff work in her chosen calling of hairdressing. The plaintiff looked after the home and did some casual work from time to time. At the time of the deceased's death, she had little money. She paid some $8,400 for funeral and headstone expenses out of their joint savings account of $9,778.18. Her assets at present consist of the Waratah property and about $1000 in a building society account. Her only income is from a Centrelink pension of $247.35 per week, virtually all of which she spends on ordinary living expenses. 7 The plaintiff is not in good health. She had a heart valve replaced in 1982 and continues to take Warfrin for her heart condition. She suffers badly from osteoarthritis which, she says, resulted from malnutrition in Poland during the Second World War and the subsequent communist regime. She takes medication for this condition. She is also on medication to manage high blood pressure. 8 The Waratah property is old and needs extensive repairs. The defendant has put into evidence a report by Mr McGuire, Property Inspector for the Public Trustee, who has qualifications in building, building surveying and construction management. The plaintiff adopts the content of the report. Mr McGuire refers to a need for "major works" and says that the house "is not structurally sound for one of its type and age". He then goes on to describe particular repairs required. He estimates that repairs would cost something of the order of $50,000, apart from aspects involving the bathroom and kitchen which are of a structural nature and which Mr McGuire has been unable to assess by his inspection. He comments that $50,000 would be the maximum worth spending on the existing building and that the only real alternative would be to demolish it and build a new house at a cost of $100,000. The plaintiff has lived in the house for more than thirty years. She is familiar with and well settled in the locality. She does not drive a car. She wants to stay there. 9 The plaintiff, in her affidavit, provides details of particular needs in relation to the house, apart from the repairs dealt with in Mr McGuire's report. I mention those relevant to her ordinary living requirements. The only toilet is outside and she must use a staircase to access it. The toilet bowl is cracked. The only shower is over the bath, so that she has to climb into the bath to use the shower. There is no laundry and the washing machine is in the bathroom. The water heater is old and of only fifty litres capacity. It needs replacing. She also needs a new television and a new refrigerator. The existing television does not work on all channels. The refrigerator leaks and she has to use towels to stop the water spreading. All these matters are of concern to a woman aged 74. 10 The deceased's son Tadeusz, now aged 61, still lives in Poland. An affidavit sworn by him was read over the plaintiff's objection, he not being present for cross-examination. I therefore treat the affidavit with some caution. Tadeusz has a wife and a daughter aged 15 years. He receives a disability pension from the Polish government, as does the wife. This is their only income. They own a flat in which they live and a garage (there is no reference to either owning a car or receiving rent for the garage). Although the flat is said to be an asset, they apparently have to pay "rental" for it. Both Tadeusz and his wife suffer from numerous medical conditions. Their daughter is also receiving treatment for an ongoing illness. While, as I have said, I must treat Tadeusz's evidence with caution, I am satisfied that he is a man of very modest means indeed. 11 Tadeusz gave no evidence of his contact and relationship with the deceased. Evidence on that matter was, however, given by the plaintiff. She deposes to having found, after the deceased's death, evidence that he had been sending money to his sisters and Tadeusz in Poland "on a regular basis". She gives no details. She refers also to the deceased having visited Poland "every two or three years by himself"; but whether the deceased then saw Tadeusz the plaintiff does not say. The plaintiff referred in cross-examination to two occasions on which Tadeusz visited Australia and stayed with the plaintiff and the deceased at Waratah – on the first occasion for three months and on the second occasion for two months. I quote from the cross-examination: "WILSON: Q. And he treated you well when he was visiting the house? A. No, no. No, he didn't treated me well. I was doing all his washing, I was cooking for him and instead of thanking me, he turned back at me - he turned his back on me. He didn't even say good-bye to me, didn't say thank you for everything.