Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371

Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371

Clause 5.1 conferred on Josie and Pauline vested one half interests in the deceased's assets, subject to clause 6. Clause 6.1 required no more than identification by Josie, as executor, of an identifiable fund of money for each Primary Beneficiary, and did not require the fund to comprise the whole of the beneficiary's share or include real estate. Josie set up a fund for herself from the bank proceeds between September and December 2015 and, in the same administrative process, validly directed payment of the whole of that fund to herself for her own use under clause 6.3.2. She had no obligation to maintain, supplement, replenish or recreate that fund. Accordingly, when Dana attained 21...

Jurisdiction
Australia
Judgment Date
14 April 2023
Procedural Posture
Equity Proceedings Concerning Construction of a Deceased Testator's Will and Competing Family Entitlements to Estate Property / Principal Judgment on Dana Strbik's Cross Claim, Subject to Parties Being Heard as to Form of Orders and Costs
Outcome
Dana's cross claim failed; proposed declaration that Dana and Daniel have no right, title or interest in any property forming part of the deceased's estate, with the amended statement of cross claim otherwise to be dismissed, subject to hearing the parties on form of orders and costs.
Legal Topics
['will Construction' 'testamentary Trusts' 'estate Administration' 'beneficial Interests Under a Will' "primary Beneficiary's Fund"]
['succession' 'equity'] ['will Construction' 'testamentary Trusts' 'estate Administration' 'beneficial Interests Under a Will' "primary Beneficiary's Fund"]

Case Brief

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Procedural Posture

Equity Proceedings Concerning Construction of a Deceased Testator's Will and Competing Family Entitlements to Estate Property / Principal Judgment on Dana Strbik's Cross Claim, Subject to Parties Being Heard as to Form of Orders and Costs

Legal Issues

  1. 1 ["Whether, on the proper construction of the deceased's will, Josie's share of the estate passed to her for her own use and benefit or passed, in whole or part, to her children Dana and Daniel under clause 6.5 when Dana attained 21 years." "Whether clause 6.1 required a Primary Beneficiary's Fund to comprise the whole of a Primary Beneficiary's share of the deceased's estate, including real estate, or merely required an identifiable fund sourced from that share." 'Whether a fund could be set up under clause 6.1 without communication of that fact to Pauline.' 'Whether Josie set up a fund for herself and then validly paid it to herself under clause 6.3.2, leaving no property for division under clause 6.5.' 'Whether later estate receipts, including the class action compensation sum, formed part of any fund for Josie in which Dana or Daniel had an interest.']

Ratio Decidendi

Clause 5.1 conferred on Josie and Pauline vested one half interests in the deceased's assets, subject to clause 6. Clause 6.1 required no more than identification by Josie, as executor, of an identifiable fund of money for each Primary Beneficiary, and did not require the fund to comprise the whole of the beneficiary's share or include real estate. Josie set up a fund for herself from the bank proceeds between September and December 2015 and, in the same administrative process, validly directed payment of the whole of that fund to herself for her own use under clause 6.3.2. She had no obligation to maintain, supplement, replenish or recreate that fund. Accordingly, when Dana attained 21...

Court Disposition

Dana's cross claim failed; proposed declaration that Dana and Daniel have no right, title or interest in any property forming part of the deceased's estate, with the amended statement of cross claim otherwise to be dismissed, subject to hearing the parties on form of orders and costs.

Orders

  • ["DECLARE that, on the proper construction of the will of the deceased and in the events that have happened, Dana and Daniel, jointly and severally, have no right, title or interest in any property that formed part of the deceased's estate." "ORDER that Dana's amended statement of cross claim filed 21 April 2022...