Habricko v Palijan [2017] NSWSC 1695

Supreme Court New South Wales

Medium Neutral Citation: Habricko v Palijan [2017] NSWSC 1695 Hearing dates: 19, 20 June 2017 Decision date: 06 December 2017 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Summons dismissed Catchwords: SUCCESSION — family provision and maintenance — circumstances precluding relief — adult children — defendant sister preferred in surviving parent's will to exclusion of plaintiff brother — brother fails to identify any particular need other than possibly for vicissitudes — failure to provide for brother not inadequate where he was treated generously during parents' lives and sister had not been Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Sellak v Sellak (No 2) [2016] NSWSC 396 Verzar v Verzar [2014] NSWCA 45 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Tom Habricko (Plaintiff) Mary Palijan (Defendant) Representation: Counsel: F Austin (Plaintiff) G A Elliott (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) Walter T Lyubicic & Associates (Defendant) File Number(s): 2016/192687 Publication restriction: No

Judgment

Summary 1. The plaintiff is Tom Habricko ("Tom"), the only son of Jela Habricko ("Mrs Habricko") and her husband Ivan Habricko ("Ivan"). Mrs Habricko died on 16 July 2015 at the age of 82. Without disrespect, I shall refer to the plaintiff and several others who feature in this judgment by their given names. 2. On 16 February 2013, Mrs Habricko made her final will (the "Will"). 3. In addition to Tom (who is 61 years old), the defendant Mary Palijan ("Mary") is Mrs Habricko's only other eligible beneficiary. Mary (who is 57 years old) is Tom's only sister and the only daughter of Mrs Habricko and Ivan. Mary is the appointed executrix and trustee of the Will. 4. Under the Will, Mrs Habricko's estate (the "Estate") was left entirely to Mary. At the time of trial, it comprised an immaterial amount of cash and 50% of a property at Cecil Hills (the "Cecil Hills Property") which was jointly owned as tenants in common as to 50% by Mrs Habricko, and as to 50% by Mary and her husband, John Palijan ("John"). The value of Mrs Habricko's 50% share at the time of hearing was approximately $775,000. 5. By summons filed on 24 June 2016, Tom applies for provision out of the Estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). Mr R Austin of Counsel appeared for Tom and Mr G A Elliott of Counsel appeared for Mary. 6. Mr Austin ultimately accepted that any provision for Tom could not be more than between $50,000 and $100,000 as a buffer for contingencies or vicissitudes. Tom had received considerable financial assistance from Mrs Habricko and Ivan during their lifetimes. Mary had not. In the last three years of her life, Mrs Habricko had purchased the Cecil Hills Property with Mary pursuant to an arrangement that Mary would care for her (Mrs Habricko) and then receive the Estate. Mary had cared for Mrs Habricko until the latter's death. 7. Having regard to the assistance received by Tom from his parents; the composition of the Estate; Tom and Mary's respective claims on Mrs Habricko's testamentary bounty; and Mrs Habricko's clear view that Tom had been benefited during her and Ivan's lives and that Mary should receive the Estate including in return for caring for her (Mrs Habricko), the Court is not satisfied that the Will makes inadequate provision for Tom. Alternatively, even if that were not so, for the same reasons the Court would not, in the exercise of its discretion, order additional provision for Tom.