Pawlowska v Zajglic [2010] NSWSC 864

New South Wales Supreme Court

CITATION : Pawlowska v Zajglic [2010] NSWSC 864

HEARING DATE(S) : 2 August 2010

JUDGMENT DATE : 6 August 2010

JUDGMENT OF : Ball J

DECISION : Application dismissed with costs.

CATCHWORDS : FAMILY PROVISION - whether adequate provision made by deceased - plaintiff, deceased and defendant emigrated from Poland to Australia - defendant primary carer for deceased - defendant had little assets and employment prospects - plaintiff had poor relationship with deceased - plaintiff had adequate assets

LEGISLATION CITED : Family Provision Act 1982

CATEGORY : Principal judgment

Re Fulop Deceased (1987) 8 NSWLR 679 CASES CITED : Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES : Helena Pawlowska (Plaintiff) Andrzej Mieczyslaw Zajglic (Defendant)

FILE NUMBER(S) : SC 2008/280532

COUNSEL : G Foster (Plaintiff) R Hanrahan (Defendant)

SOLICITORS : Jay Oslanicki Solicitor (Plaintiff) Drexler & Partners (Defendant)

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

BALL J

6 AUGUST 2010

08/280532 HELENA PAWLOWSKA v ANDRZEJ MIECZYSLAW ZAJGLIC

JUDGMENT 1 This is an application pursuant to s 7 of the Family Provision Act 1982 (FPA) by an adult daughter that provision be made for her out of her mother's estate. By her will, Cecylia Zajglic (the deceased) left the plaintiff a legacy of $10,000 and left the balance of her estate to her son, the defendant. There are no other beneficiaries under the will and no other claims against the estate. The estate consists principally of a house in Penrith, which the parties agree is worth $330,000. 2 The deceased was born in Poland in 1929. She died in 2008 at the age of 79 from lung cancer. She married at the age of 20, but separated from her husband in 1971. In 1980, at the age of 51, she moved to Australia. Two of her sisters already lived here. 3 The plaintiff was born in 1952 and the defendant in 1956. The plaintiff married in 1971 in Poland. Her husband is 61 years old. For a time after their marriage, they lived with the deceased and the defendant. However, following the birth of their only child, Arkadiusz, in 1975 they moved into their own accommodation. Sometime after that, the deceased and defendant moved into a two bedroom flat in Elblag, which it appears was rented from the state. 4 The defendant says that in 1978 he contributed 300,000 zlotys and his mother 100,000 zlotys to a restaurant business that was established by the plaintiff and her husband in Poland. He says that those amounts were never repaid in full. The plaintiff denies that. According to her, the amount was 200,000 zlotys, it was contributed entirely by the deceased and, at the deceased's request, it was repaid in full to the defendant, who at about this time had spent over a year in goal (something which the defendant denied). On the evidence before me, I am not prepared to find that the defendant spent time in prison. There is no record from the Polish authorities that he did so; and I accept that it would have been difficult for him to immigrate to Australia if he had done so. In any event, I do not think that it is of any real significance in considering the current application. It is clear that the deceased lent the plaintiff some money in connection with the restaurant business. It seems to be accepted between the parties that a substantial part, if not all, of that money was repaid; and, again, I do not think anything turns on the resolution of the dispute in relation to the balance. 5 The plaintiff and her husband first came to Australia in 1989. They and their son lived with the deceased for approximately two years. However, the plaintiff and her family did not get on with the deceased and, after about two years, they bought a property at Cambridge Park. After two years there, they could no longer afford the mortgage and, as a result, reluctantly moved back with the deceased. They stayed with her for another year before returning to Poland in 1993. They did not come back to Australia again until 1999. 6 The defendant was 25 when the deceased moved to Australia in 1980. The deceased allowed him to remain in the flat in Elblag when she left for Australia. Two years later, the defendant was permitted to buy the flat for 35,000 zlotys from the state. The defendant married in 1990. He separated from his wife in 1995 and they were divorced in 1998. Following the divorce, the defendant also moved to Sydney. Since then, until recently, he has been paying his former wife $230 per month and she has continued to live in the flat in Elblag as part of their divorce agreement. 7 When the defendant moved to Australia he, also, lived with his mother and continued to do so until her death. While living with his mother, he obtained two degrees from the University of Western Sydney in information technology. However, apart from a short period, he has not worked since moving to Australia. 8 As I have said, the plaintiff and her family returned to Sydney in 1999. When they arrived, they rented an apartment in Wentworthville. 9 In 2005, the deceased was diagnosed with lung cancer. The defendant says that the deceased asked the plaintiff to look after her, but the plaintiff refused. As a result, the defendant says that he gave up the prospect of a well paying job with a telecommunications company and instead stayed at home to look after his mother. He received a carer's benefit from Centrelink for doing so. There is a dispute concerning the level of care the deceased required, particularly in the earlier period of her illness. 10 In April 2008, there was an argument between the plaintiff and her mother. Precisely what triggered the argument is not clear. However, it was clearly serious; and the plaintiff had no contact with the deceased from that time on. Indeed, she only learned of the deceased's death the day before the funeral. Not long after the argument, the deceased made her last will leaving all but $10,000 to her son. The defendant says that, at the same time, the deceased dictated a statement to him in Polish which he typed up and which purports to explain the terms of her will. That statement essentially makes four points. First, it asserts that the deceased made a number of gifts to her daughter which had not been repaid. Those gifts included living expenses when her daughter and family first moved to Australia together with a total of $32,000 or $37,000 (it is not clear whether the gifts are said to include two separate sums of $5,000 or only one). Second, it says that the plaintiff and her husband and son treated her poorly when they stayed with her in 1993. Third, the statement says that the deceased asked her daughter to be her carer and her daughter refused. Fourth, the deceased refers to the fact that her son had given up the opportunity of a lucrative job to look after her. 11 In my opinion, little weight can be placed on this statement. It was obviously prepared at a time when the deceased was angry with her daughter. The evidence, in my opinion, does not suggest that the plaintiff engaged in any conduct that could be regarded as disentitling her to be considered as an object of her mother's bounty. The evidence suggests that the deceased did what she could to help both her children and I think that it is likely that she provided them with financial assistance. Whether she provided her daughter with as much as she says she did in the statement is unclear. Although there was friction between the plaintiff and the deceased, I do not think that that friction was anything more than the friction that is sometimes exists between adult children and their parents, particularly when they live together. It is unclear what ultimately caused the breakdown of their relationship. However, there is no evidence that would justify a conclusion that it was entirely the plaintiff's fault. Certainly, if one of its causes was that the plaintiff refused to give up her job and look after the deceased, I do not think that the plaintiff can be blamed for that. The plaintiff had responsibilities to her family, and I do not think that it was reasonable of the deceased to expect her to abandon those. 12 The defendant has continued to live in the deceased's house following the deceased's death. Apart from what he stands to inherit under the will and the flat in Elblag (which is agreed between the parties to be worth approximately $30,000), the defendant has no significant assets. He is currently in receipt of unemployment benefits. He has a number of health issues and suffered a mild stroke in 2006. He has applied for a disability pension. He remarried several months ago. It was put to him in cross-examination that he was in a position to find employment. However, given his age, the state of health and the fact that he struggles to make himself understood in English, I think that that is unlikely. 13 The plaintiff currently works as a kitchen assistant and earns approximately $48,000 gross per annum. She speaks little or no English. She works a significant amount of overtime and has a long trip to and from work. She clearly works very hard. She has a back problem and experiences strong pain in her right arm which is associated with her back problem. Her husband works as a machine operator and currently earns approximately $900 per week after tax. 14 There was some dispute about the value of the plaintiff's and her husband's assets. They own a property at Wentworthville. It appears that their son has built a second house on the property and the land is in the process of being subdivided. The current title search indicates that the plaintiff, her husband and her son each have a third interest in the property. There is no evidence of the total value of the property as it stands. However, each of the two duplex houses is estimated to be worth $450,000 and I accept the defendant's submission that it is reasonable to assume that the total value of the property is approximately $900,000. The plaintiff and her husband currently have a mortgage of $287,000. She and her husband recently sold an investment property from which together they realised an amount of $84,000. In addition, the plaintiff has superannuation to the value of $25,000 and her husband has superannuation to the value $32,000. 15 Whether an order should be made under s 7 of the FPA raises two questions. The first is whether the plaintiff has been left without adequate provision for her proper maintenance, education and advancement in life. The second is, assuming she has, what provision, if any, should be made for her: Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201, Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191. The assessment is to be made having regard to the circumstances as they exist at the time the order is made: FPA s 7. 16 Section 9(2) of the FPA relevantly provides that the court should not make an order under s 7 unless the court is satisfied that the provision made by the deceased is inadequate for the proper maintenance, education and advancement in liked of the claimant. As McClelland CJ in Eq pointed out in Re Fulop Deceased (1987) 8 NSWLR 679 at 679, the word "proper" in FPA s 9(2) connotes a standard that is appropriate to all the circumstances of the case. Section 9(3) sets out the circumstances that the court may consider. Those circumstances were summarised by McClelland CJ in Eq in these terms: "(a) the nature and quality of the relationship between the plaintiff and the deceased, (b) the character and conduct of the plaintiff; (c) the nature and extent of the plaintiff's present and reasonably anticipated future needs, (d) the size and nature of the estate of the deceased, (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased, and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased." (ibid)