Rakovich v Marszalek [2020] NSWSC 589

Supreme Court New South Wales

Medium Neutral Citation: Rakovich v Marszalek [2020] NSWSC 589 Hearing dates: 27 February 2020 and 2 March 2020 Date of orders: 20 May 2020 Decision date: 20 May 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders that Michael Kobras be joined as the fourth Defendant to the proceedings. (2) Orders that the requirement to file an amended Summons be dispensed with. (3) Having found that the Plaintiff is an eligible person, that the proceedings were commenced within time, and that the provision made for him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, orders that he receive, by way of provision, out of the estate of the deceased, a lump sum equating to 45 per cent of the net estate of the deceased. (4) Orders that no interest is to be paid on the lump sum, if it is paid within 7 days of the completion of the sale of the Petersham property; otherwise, interest calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum. (5) Orders that the provision made for the Plaintiff should be borne by the residuary estate to the intent that each of the nieces and nephews of the deceased shall bear an equal share thereof. (6) Orders that the Plaintiff's costs, calculated, on the ordinary basis, of the proceedings, be paid out of the estate of the deceased. (7) Orders that the Defendants' costs, calculated on the indemnity basis, of the proceedings, be paid, or retained, as the case may be, out of the estate of the deceased. (8) Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (r 31.16A and r 33.10) and Practice Note No SC Gen 18. Catchwords: SUCCESSION – Claim for family provision order by a close friend for over 30 years of the deceased – No dispute as to eligibility of Plaintiff as a person who was, at any particular time, partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member – Alternative basis of eligibility, he was a person with whom the deceased was living in a close personal relationship at the time of the deceased person's death not necessary to determine – Also no dispute that there are factors warranting the making of the Plaintiff's application – Deceased died intestate – In the events that happened, beneficiaries on intestacy are two nieces and two nephews of the deceased in equal shares – None of the beneficiaries had met the deceased, but were said to have spoken to him on the telephone – Telephone contact between them limited – Significant competing claim of the Plaintiff on the deceased's estate – Whether Plaintiff has been left without adequate provision for his proper maintenance and advancement in life under rules of intestacy – Whether an order for provision should be made for the Plaintiff's proper maintenance and advancement in life and, if so, in what amount and how calculated