Rakovich v Marszalek [2020] NSWSC 589

Rakovich v Marszalek [2020] NSWSC 589

The Court held that the plaintiff, as a partly dependent household member of the deceased for over 30 years, was an eligible person under the Succession Act and, because he had been left with inadequate provision under intestacy, was entitled to a lump sum provision of 45% of the net estate. The provision was justified having regard to the nature and quality of his relationship with the deceased, the deceased’s expressed intentions, relative need and circumstances, and the size of the estate. Costs followed the usual rule; Calderbank offers, although more favourable to defendants than the ultimate judgment, were reasonably rejected at the time and so did not justify indemnity costs...

Parties
Plaintiff: George Rakovich; First Defendant: Helga Marszalek; Second Defendant: Ingeborg Kreitz; Third Defendant: Petra Krogemann; Fourth Defendant (administrator): Michael Kobras
Jurisdiction
Australia
Judgment Date
20 May 2020
Procedural Posture
Family Provision/ Succession Act Dispute (equity) / Final Judgment and Orders After Hearing
Outcome
Application allowed; family provision order made.
Legal Topics
Family Provision Claim, Intestacy, Eligible Person Under Succession Act, Adequate Provision, Costs – Calderbank Offers
Succession Law Equity Civil Procedure Family Provision Claim Intestacy Eligible Person Under Succession Act Adequate Provision Costs – Calderbank Offers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 56 Party arguments 2 Amounts and remedies 16
Sign in to unlock

Parties

George Rakovich

Plaintiff

Helga Marszalek

First Defendant

Ingeborg Kreitz

Second Defendant

Petra Krogemann

Third Defendant

Michael Kobras

Fourth Defendant (administrator)

Procedural Posture

Family Provision/ Succession Act Dispute (equity) / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 Whether plaintiff is an eligible person under s 57(1)(e) Succession Act 2006 (NSW)
  2. 2 Whether factors warranting the making of the application have been established
  3. 3 Whether adequate provision for the plaintiff's proper maintenance or advancement in life has been made by the rules of intestacy

Ratio Decidendi

The Court held that the plaintiff, as a partly dependent household member of the deceased for over 30 years, was an eligible person under the Succession Act and, because he had been left with inadequate provision under intestacy, was entitled to a lump sum provision of 45% of the net estate. The provision was justified having regard to the nature and quality of his relationship with the deceased, the deceased’s expressed intentions, relative need and circumstances, and the size of the estate. Costs followed the usual rule; Calderbank offers, although more favourable to defendants than the ultimate judgment, were reasonably rejected at the time and so did not justify indemnity costs...

Court Disposition

Application allowed; family provision order made.

Orders

  • Michael Kobras joined as fourth Defendant (administrator) to proceedings.
  • Requirement to file amended Summons dispensed with.