LITOVKINAS v KODERITSCH [2001] NSWSC 290

LITOVKINAS v KODERITSCH [2001] NSWSC 290

The presumption of a resulting trust was rebutted on the evidence; the plaintiff intended the deceased to have a one-half share of the relevant property beneficially. The application for provision under the Family Provision Act was allowed out of time, and, considering the circumstances, the proper order was for the plaintiff to receive the whole of the residue of the estate of the deceased.

Parties
Plaintiff: Eugene Litovkinas; Defendant: John Martin Koderitsch as executor of the estate of Ethel Koderitsch
Jurisdiction
Australia
Judgment Date
27 March 2001
Procedural Posture
Equity / Judgment After Hearing
Outcome
Application for declaration of trust dismissed; application for family provision allowed; time for application extended; plaintiff to take the whole of the residuary estate of the deceased.
Legal Topics
Resulting Trust, Presumption of Advancement, Family Provision Claim, Extension of Time
Trusts and Estates Family Provision Resulting Trust Presumption of Advancement Family Provision Claim Extension of Time

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Parties

Eugene Litovkinas

Plaintiff

John Martin Koderitsch as executor of the estate of Ethel Koderitsch

Defendant

Procedural Posture

Equity / Judgment After Hearing

Legal Issues

  1. 1 Whether a resulting trust arose in favour of the plaintiff over a half share in property
  2. 2 Whether the presumption of resulting trust was rebutted by evidence of intention
  3. 3 Whether an extension of time for making a claim under the Family Provision Act should be granted

Ratio Decidendi

The presumption of a resulting trust was rebutted on the evidence; the plaintiff intended the deceased to have a one-half share of the relevant property beneficially. The application for provision under the Family Provision Act was allowed out of time, and, considering the circumstances, the proper order was for the plaintiff to receive the whole of the residue of the estate of the deceased.

Court Disposition

Application for declaration of trust dismissed; application for family provision allowed; time for application extended; plaintiff to take the whole of the residuary estate of the deceased.

Orders

  • Time extended for making the application up to the date of filing the summons.
  • In lieu of cl 4 and the first cl 5 of the deceased's will, the plaintiff is to receive the whole of the residue of the estate of the deceased.