Skarica v Toska [2014] NSWSC 34

Supreme Court New South Wales

Medium Neutral Citation: Skarica v Toska [2014] NSWSC 34 Hearing dates: 23 May and 7, 13 and 14 June 2013 Decision date: 14 February 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: Direct that the plaintiff bring in Short Minutes of Orders, including a grant of provision for the plaintiff, along the lines set out in paragraph 69. Catchwords: SUCCESSION - FAMILY PROVISION - Eligible person - Close personal relationship - Living together but with separate residence maintained - Domestic support and personal care - Quasi-sibling friendship - Long term relationship Legislation Cited: Succession Act 2006 NSW Conveyancing Act 1919 NSW Interpretation Act 1897 NSW Property (Relationships) Act 1984 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 659[8]-660[11]) Churton v Christian (1988) 13 NSWLR 241 at 252A-E Hayes v Marquis [2008] NSWCA 10 at [75]-[83] Popescu v Borun [2011] NSWSC 1532 at [51] Re Fulop Deceased (1987) 8 NSWLR 679 at 681 Texts Cited: - Category: Principal judgment Parties: Nevenko Skarica (Plaintiff) Dragica Toska (Defendant) Representation: Counsel: D Reid (Plaintiff) K Morrissey (Defendant) Solicitors: Duncan & Associates (Plaintiff) Pinto & Associates (Defendant) File Number(s): 2012/00182125

Judgment

INTRODUCTION 1This judgment relates to an application (made within the time limited by s 58 of the Succession Act 2006 NSW) for family provision relief, under Chapter 3 of the Act, by a plaintiff who claims to be eligible to make such a claim as "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" within the meaning of s 57(1)(f) of the Act. 2Neda Duracic, late of Goodlet Street, Surry Hills ("the deceased") died on 18 March 2012, aged 75 years, leaving a will dated 9 November 2007, probate of which was granted to the defendants on 31 July 2012. 3Her estate comprises a two-thirds share in her residence (the land contained in Folio Identifier 6/220306) together with a sum of money, part of which remains to be accounted for by the plaintiff. The substantial asset is the land. 4The residence can be taken, for the purpose of these proceedings, to have a current market value somewhere in the rage of $802,000- $850,000, compared with an estimated value at the date of the deceased's death of $742,500. 5The estimate of current market value is based upon an informal appraisal of an "estimated selling price" by a real estate agent. 6In the absence of more precise valuation evidence I formally find that the residence has a current market value of $826,000, mid - range, and that the deceased's two-thirds share of that is worth about $550,650. 7The defendants are friends of the deceased. They are named in her will as executors and trustees of the will, but not as beneficiaries. 8By clause 4 of her will, the deceased left six legacies, each in the sum of $10,000, to six relatives: two sisters, three nephews and one niece. 9The remainder of her estate was left, by clause 5 of the will, ""to my very poor sister", a third sister not the recipient of a legacy. 10All seven of the named beneficiaries reside in Croatia, apparently in circumstances which, by Australian standards, would be regarded as necessitous. 11Clause 6 of the will is important. It relates expressly to the plaintiff. It attributes to him the status of a "boyfriend". It is predicated on a statement that the deceased had already given him a one third interest in her Surry Hills residence. It explains that, on the foundation of that gift, the deceased had made no provision for him in her will. 12Clause 6 is in the following terms: "6. I hereby declare that I do not wish to make any further provision to [sic] my boyfriend the said NEVENKO SKARICA because I already gave him one third of my property at [xx] Goodlet Street, Surry Hills." 13Use of the expression " the said NEVENKO SKARICA" to describe the plaintiff is a little bit of lawyers' language suggestive of an earlier reference to him in the will. In fact, there is none. Whether there had been in an earlier draft is not a question explored by the parties in these proceedings. 14By clause 6, the deceased may be taken to have spoken from the grave about what appears, on any view of the evidence, to have been an unusual relationship between the plaintiff and herself.