Barna v Barna [2008] NSWSC 1402

New South Wales Supreme Court

CITATION : Barna v Barna [2008] NSWSC 1402

HEARING DATE(S) : 4 December 2008 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 4 December 2008

DECISION : Property to be held on trust by executor as to 20/75 shares for the plaintiff and 27.5/75 shares for the first and second defendants respectively.

CATCHWORDS : SUCCESSION - family provision and maintenance - failure by testator to make sufficient provision for applicant – where applicant received no benefit under deceased's will due to ademption of gift in will – where applicant on disability pension – where defendant siblings also on disability pensions – relevant considerations

LEGISLATION CITED : (NSW) Family Provision Act 1982

CATEGORY : Principal judgment

Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Re Fulop (dec'd) (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse (No 2) (1994) 181 CLR 201 Stewart v McDougall (NSWSC, 19 November 1987, unreported, Young J) Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

Bela Barna (plaintiff) PARTIES : Zoltan Barna (first defendant) Katalin Hamori (second defendant)

FILE NUMBER(S) : SC 4805/07

Mr D Liebhold (plaintiff) COUNSEL : Mr Z Barna (in person) Mrs K Hamori (in person)

SOLICITORS : Nicholas George Lawyers (plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Thursday, 4 December 2008

4805/07 Bela Barna v Zoltan Barna & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: The deceased Mrs Berta Barna died on 31 January 2007, leaving a Will which she had made on 16 December 2003, by which she appointed her son, the first defendant Mr Zoltan Barna, to be her executor and trustee, and gave the whole of her estate to her trustee upon trust: as to her interest in 15 Sage Street, Mt Druitt and the sum of $300,000 for her daughter, the second defendant Mrs Katalin Hamori; as to her interest in 38 Edmonston Street, Tregear for her son, the plaintiff Mr Bela Barna; and as to the residue for, Zoltan. Zoltan, the executor named in the Will, not having applied for probate, letters of administration pursuant to (NSW) Probate and Administration Act 1898, s 41A, for the purposes only of making an application under (NSW) Family Provision Act 1982, were granted to Bela on 13 May 2008. 2 Prior to her death, in circumstances to which I shall come, the gifts of the deceased; interests in 15 Sage Street, Mt Druitt and 38 Edmonston Street, Tregear were adeemed, the deceased having otherwise alienated her interest in those properties. So far as the evidence goes, the only assets of significance in the estate are the deceased's former home at 12 Darley Street, Marrickville – of which there is in evidence an appraisal of value at between $700,000 and $800,000, and for the purpose of these proceedings I shall assume its value is about $750,000 – and some amounts standing to the credit of bank accounts in the name of the deceased, of which after payment of funeral expenses the net balance is only a couple of thousand dollars. The estate apparently has no debts. The plaintiff's affidavit of costs indicates total estimated legal costs of these proceedings up to and including the hearing today at just under $60,000. The defendants, who are unrepresented, have no such costs. On the basis of Darley Street being worth about $750,000, cash in the bank accounts of about $2,700, and costs of just under $60,000, the net distributable estate is in the order of $695,000. The effect of the Will