Theoctistou v Theoctistou [2013] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: Theoctistou v Theoctistou [2013] NSWSC 1487 Hearing dates: 3 & 4 October 2013 Decision date: 04 October 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Family provision orders made, including designation of notional estate Catchwords: SUCCESSION - Family Provision - Notional estate - Claim on distributed estate - Competition between adult son and widow of deceased - Application by adult son in need - Relief granted Legislation Cited: Limitation Act 1969 NSW Succession Act 2006 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 Luciano v Rosenblum (1985) 2 NSWLR 65 Singer v Berghouse (1994) 181 CLR 201 Wheat v Wisbey [2013] NSWSC 537 at [ Texts Cited: - Category: Principal judgment Parties: Anthony Theoctistou (Plaintiff) Bessy Theoctistou (Defendant) Representation: Counsel: RE Quickenden (Plaintiff) M Bridger (Defendant) Solicitors: Nash Allen Willboys & Wootten (Plaintiff) Jo-Anna FS Moy File Number(s): 2013/0241661

Judgment

INTRODUCTION 1George Theoctistou ("the deceased") died on 3 August 2011, aged about 84 years, leaving a will dated 1 February 2011, probate of which was granted by this Court to his widow (the defendant) on 11 October 2011. 2By his will, the deceased left $50,000 to each of his four adult sons ($200,000 in total) and the residue of his estate to the defendant, now aged about 86 years. 3The deceased was twice married, with two sons by each marriage. The plaintiff is the eldest of the deceased's sons, a child of the first marriage. 4Each of the deceased's other three sons has notice of these proceedings, in which the plaintiff claims family provision relief, under Chapter 3 of the Succession Act 2006 NSW in relation to the distributed estate of the deceased, but none of them has joined the plaintiff in making a claim for relief. 5The estate of the deceased was distributed by the defendant between 4 November 2011 and 8 February 2012 at a time (within 12 months of the deceased's death) when it remained open to the plaintiff, under s 58 of the Succession Act, to make an application for relief under s 59 of the Act without having to apply for an order for an extension of time. 6On 4 November 2011 two home units owned by the deceased in Military Road, Merrylands (respectively Lots 4 and 5 in Strata Plan 52121) were, by registration of a transmission application, transferred to the defendant. 7On 8 February 2012 the defendant paid to each of the deceased's four sons the pecuniary legacy of $50,000 due to him under the will. 8Because the estate of the deceased has been distributed, the plaintiff cannot succeed in these proceedings unless he obtains an order, under Part 3.3 of the Succession Act, for the designation of property as notional estate of the deceased: ss 63(3) and 63(5). 9The plaintiff invites the Court to make an order (by reference to ss 78, 79, 87 and 89 of the Succession Act) for designation of the two former home units of the deceased (Lots 4 and 5 in Strata Plan 52121) as notional estate. 10That property is registered in the name of the defendant, personally, as the holder of an estate in fee simple, unencumbered. 11The plaintiff expressly disclaimed any claim for an order that other property be designated as notional estate. 12The hearing of the plaintiff's claim for relief was conducted on the basis that the only interests in competition, upon consideration of the plaintiff's claim for family provision relief, are those of the plaintiff (as an adult son of the deceased) and those of the defendant (as the widow of the deceased, a dutiful wife throughout a long and happy marriage). 13The interests of other persons eligible to make an application for family provision relief (that is, the deceased's first wife and his three sons other than the plaintiff) may be disregarded by virtue of s 61 of the Succession Act. All four of those persons have had notice of the present proceedings. None of them has made an application for relief. Although rules of court requiring service of formal notice of proceedings have not, in terms, been complied with in relation to the deceased's first wife and the second son of his marriage to her, I am satisfied that it is appropriate to order that compliance with those rules of court be dispensed with.