Nowak v Beska [2013] NSWSC 166

Supreme Court New South Wales

Medium Neutral Citation: Nowak v Beska [2013] NSWSC 166 Hearing dates: 20 February 2013 Decision date: 06 March 2013 Jurisdiction: Equity Division Before: Hallen J Decision: (i) Having found that the Plaintiff is an eligible person; being satisfied that there are factors which warrant the making of her application; and that the provision made for her in the Will of the deceased is inadequate for her proper maintenance or advancement in life, order that she receive out of the estate of the deceased, a lump sum of $60,000. (ii) Order that the provision made for the Plaintiff should be borne by the residuary estate. (iii) Order that no interest be paid on the lump sum of money if it is paid within 14 days of the making of these orders, or within such other time as the parties agree or the court otherwise orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (iv) Subject to any further submissions, order that the Plaintiff's costs, calculated on the ordinary basis, and the Defendants' costs, calculated on the indemnity basis, be paid out of the estate of the deceased. (v) Order that the Defendants be restrained from disbursing any of the funds held in the estate without first having paid the lump sum ordered by way of provision for the Plaintiff and also her costs of the proceedings. (vi) For the purposes of (v), it will be satisfactory compliance with orders (i) and (iv)(so far as it relates to the Plaintiff's costs) if the Defendants pay to the Plaintiff, or as she may direct, the lump sum ordered by way of provision for her in (i) above, and any interest accrued thereon, and also pay to her solicitors, to be held by them in trust pending agreement of the parties, or the completion of assessment of the Plaintiff's costs calculated on the ordinary basis, the amount of $37,500. (vii) The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the matters referred to in order (iv) above. Catchwords: SUCCESSION - FAMILY PROVISION - The Plaintiff, the sister of the deceased, seeks a family provision order out of the estate of the deceased under the Succession Act 2006 - The Defendants, were friends and carers of the deceased, the executors to whom Probate granted and sole beneficiaries named in Will - No dispute as to Plaintiff's eligibility - Dispute as to factors warranting the making of the application - Whether to make a family provision order - If order for provision made, how the burden of that provision should be borne - Part of the deceased's estate distributed by Defendants - Breach of inter partes undertaking by Defendants Legislation Cited: Family Provision Act 1982 Practice Note SC Eq 7 Property (Relationships) Act 1984 Probate and Administration Act 1898Succession Act 2006Succession Amendment (Family Provision) Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Jansson [2010] NSWCA 176Allardice, In re; Allardice v Allardice (1909) 29 NZLR 959 Andrew v Andrew [2012] NSWCA 308 Barlevy v Nadolski [2011] NSWSC 129 Bartlett v Coomber [2008] NSWCA 100 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Curran v Harvey [2012] NSWSC 276 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dijkhuijs (formerly Coney) v Barclay (1988) 13 NSWLR 639 Diver v Neal [2009] NSWCA 54; (2009) 2 ASTLR 89 ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Evans v Levy [2011] NSWCA 125 Faulkner v McLeod [2011] NSWSC 92 Fede v Dell'Arte [2010] NSWSC 1113 Fiorentini v O'Neil [1998] NSWCA 79 Foley v Ellis [2008] NSWCA 288 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Fulop Deceased, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Graziani v Graziani (NSWSC, 20 February 1987, unreported) Hampson v Hampson [2010] NSWCA 359 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Jenkins v Livesey (1985) AC 424 Lumsden v Sumner [2012] NSWSC 1440 McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566 Mcgrath v Troy [2010] NSWSC 1470 Maio v Sacco [2009] NSWSC 413 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Sammut v Kleemann [2012] NSWSC 1030 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thom v The Public Trustee (NSWSC, 2 April 1992, unreported) Tsivinsky v Tsivinsky [1991] NSWCA 269 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Wheatley v Wheatley [2006] NSWCA 262 Wilcox v Wilcox [2012] NSWSC 1138 Category: Principal judgment Parties: Anna Nowak (Plaintiff) Krzystof Beska (first Defendant) Katarzyna Beska (second Defendant) Representation: Counsel: Mr D M Jay (Plaintiff) Mr R Hanrahan (Defendants) Solicitors: Adams & Partners (Plaintiff) Drexler & Partners (Defendants) File Number(s): 2011/316918