TSIVINSKY v TSIVINSKY [1991] NSWCA 269

TSIVINSKY v TSIVINSKY [1991] NSWCA 269

The grandchildren, Ms Maria Tsivinsky and Mr John Morgan, were eligible persons under s6(1)(d) of the Act. There were relevant factors warranting the making of their applications, based on their dependency and residence with the deceased. However, the orders of the trial judge, particularly the legacies of $96,000 to Ms Tsivinsky and $48,000 to Mr Morgan, exceeded what ought to have been ordered, given the size of the estate and the competing needs especially of the appellant. The appeal was dismissed with costs as the majority view agreed the orders should stand and procedural rules require the highest common denominator to be reflected in the Court's order.

Parties
Appellant: Alexander Tsivinsky; 1st Respondent: Maria Tsivinsky; 3rd Respondent: John Morgan
Jurisdiction
Australia
Judgment Date
05 December 1991
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Testators Family Maintenance, Eligibility of Grandchildren, Factors Warranting Application, Discretionary Orders, Mediation in Estate Litigation
Family Provision Wills and Estates Testators Family Maintenance Eligibility of Grandchildren Factors Warranting Application Discretionary Orders Mediation in Estate Litigation

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Parties

Alexander Tsivinsky

Appellant

Maria Tsivinsky

1st Respondent

John Morgan

3rd Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Are grandchildren 'eligible persons' under s6(1)(d) Family Provision Act 1982?
  2. 2 Were there 'factors warranting the application' for family provision by the grandchildren?
  3. 3 Should the discretionary orders for legacies to grandchildren be set aside or varied?

Ratio Decidendi

The grandchildren, Ms Maria Tsivinsky and Mr John Morgan, were eligible persons under s6(1)(d) of the Act. There were relevant factors warranting the making of their applications, based on their dependency and residence with the deceased. However, the orders of the trial judge, particularly the legacies of $96,000 to Ms Tsivinsky and $48,000 to Mr Morgan, exceeded what ought to have been ordered, given the size of the estate and the competing needs especially of the appellant. The appeal was dismissed with costs as the majority view agreed the orders should stand and procedural rules require the highest common denominator to be reflected in the Court's order.

Court Disposition

Appeal dismissed with costs.

Orders

  • The orders of the trial judge in favour of Ms Maria Tsivinsky and Mr John Morgan stand.
  • Appellant to pay costs of the appeal.