Estate Zukowski; Domaradzka v Wawazyniuk [2014] NSWSC 1614

Supreme Court New South Wales

Medium Neutral Citation: Estate Zukowski; Domaradzka v Wawazyniuk [2014] NSWSC 1614 Hearing dates: 11, 12 and 13 November 2014 Decision date: 14 November 2014 Jurisdiction: Equity Division Before: Lindsay J Decision: The plaintiff (de facto widow of the deceased) should receive a legacy of $850,000 in addition to the provision made for her by the deceased. Parties to make submissions on form of orders and costs. Catchwords: SUCCESSION - Family provision - De facto relationship - Widow's claim - Other family relationships in competition - Relief granted Legislation Cited: Property (Relationships) Act 1984 NSW Succession Act 2006 NSW Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at [12]-[16] Luciano v Rosenblum (1985) 2 NSWLR 65 at 69G-70A Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20 Texts Cited: - Category: Principal judgment Parties: Marzena Joanna Domaradzka (Plaintiff) Waldemar Wawrzyniuk - Executor (Defendant) Representation: Counsel: P Blackburn-Hart SC (Plaintiff) A Hill (Defendant) Solicitors: AWM Dickinson & Son (Plaintiff) Armstrong Legal (Defendant) File Number(s): 2013/00247335

Judgment

INTRODUCTION 1This is an application made by the plaintiff, as the de facto spouse (widow) of a deceased person (Jerzy Jaroslaw Zukowski, "the deceased"), for family provision relief under chapter 3 of the Succession Act 2006 NSW. 2The plaintiff's status as an eligible person is not in issue. It is agreed that, at the time of the deceased's death, she was living with him in a de facto relationship: Succession Act, s 57(1)(b). 3The plaintiff's application for relief was brought within the 12 month time period prescribed by the Succession Act, s 58(2). The deceased died in early June 2013. The plaintiff's summons was filed in mid-August 2013. 4In formal terms, the central questions for determination are: (a)whether, viewed at the present time, adequate provision for the proper maintenance, education or advancement in life of the plaintiff has or has not been made: Succession Act, s 59(1)(c); (b)if that question is answered by a finding that adequate provision has not been made for the plaintiff: What, if any, order for provision out of the estate of the deceased ought to be made for the maintenance, education or advancement in life of the plaintiff, having regard to the facts known to the Court at the time an order is made: Succession Act, s 59(2). 5There is a dispute, more apparent than real, about the length of the de facto relationship between the plaintiff and the deceased (known, affectionately, as "Jurek"). 6The plaintiff says, and I accept, that she and the deceased lived together as a couple from a date in late 1998. 7The defendant points to a Cohabitation Agreement made, by deed dated 1 February 2002, pursuant to the Property (Relationships) Act 1984 NSW. Recital "A" of the preamble to the deed records that the plaintiff and the deceased "commenced living in a de facto marriage relationship" in February 2001. 8This 2001 date approximates the date upon which the deceased purchased, and he and the plaintiff commenced living in, a home unit in Kirribilli ("the Kirribilli unit"). 9Whatever may have been the parties' reasons for execution of the Cohabitation Agreement in terms that included recital "A", I am satisfied that they, in fact, commenced living together, as a couple, in and from late 1998. The defendant does not seriously advance a contrary case. Photographic evidence adduced by the plaintiff is consistent with the 1998 date, as is evidence of the plaintiff's sons, her former husband and a family friend. 10I accept that the plaintiff and the deceased developed in or about 1998, and thereafter maintained throughout the balance of the deceased's life, a close and loving relationship. 11That said, I am quite satisfied that, despite the generosity he displayed towards the plaintiff and her sons (particularly her youngest son), the deceased retained a consistent intention to maintain during his lifetime ownership and control of wealth he amassed through business dealings, and an equally strong intention to ensure that his only child (a daughter, Jessica) should be a substantial beneficiary. 12The Cohabitation Agreement can be explained as an incident of a felt need in the deceased, scarred by a marriage breakup, to protect the property interests of himself, and Jessica, against the plaintiff (and, indirectly, her sons) should his relationship with the plaintiff end in separation, not death. 13The relationship between the plaintiff and the deceased was not, for either of them, a first relationship. Between 1982-1992 the plaintiff was party to a marriage which produced two sons: Dominik, born in 1982; and Kamil, born in 1985. Between 1985-1995 the deceased was party to a marriage which produced Jessica, born in 1987. 14Both the plaintiff and the deceased were born in Poland: the plaintiff in 1960, the deceased in 1957. 15No party or participant in these proceedings attributed significance to the timing of the plaintiff's and the deceased's respective moves to Australia. 16On both sides of their relationship, there are continuing family ties with Poland. 17Those ties do not loom large in these proceedings. 18However, one family connection, beyond the deceased's nuclear family, is important. The deceased's sister (Irena), also born in Poland, was brought to Australia by him in 1987. She was about six years his junior, born in 1963.