Tsakirakis v Hatzidimitriou [2007] NSWSC 400

New South Wales Supreme Court

CITATION : Tsakirakis v Hatzidimitriou [2007] NSWSC 400

HEARING DATE(S) : 2 to 5 April 2007

JUDGMENT DATE : 27 April 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Plaintiff's Summons dismissed.

CATCHWORDS : FAMILY LAW – De facto relationship – whether the Plaintiff established that she was the de facto wife of the deceased for a continuous period of not less than two years before the death of the Deceased for the purpose of s.61B(3B) of the Wills, Probate and Administration Act 1898.

LEGISLATION CITED : - Property (Relationships) Act 1984 (NSW) – s.4 - Wills, Probate and Administration Act 1898 (NSW) – s.32G, s.61B(3), s.61B(13), s.63B(3D)

CASES CITED : Roy v Sturgeon (1986) 11 NSWLR 454

PARTIES : Joanna Tsakirakis – Plaintiff Vasilios Hatzidimitriou - Defendant

FILE NUMBER(S) : SC 5856/05

COUNSEL : J. Waters – Plaintiff D.A. Allen – Defendant

SOLICITORS : H.C. Stathis & Co – Plaintiff Proctor & Associates – Defendant

5856/05 Tsakirakis v Hatzidimitriou

Introduction

1 Dimitrios Hatzidimitriou ("the Deceased") died intestate on 19 December 2004. His marriage had been dissolved in 2000. His three children, Angela, Vasilios and Stephen, survived him. 2 Section 61B(3B) of the Wills, Probate and Administration Act 1898 (NSW) ("the Act") provides: " Succession to real and personal property on intestacy … (3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for: