Strojczyk v Kopycinzki [2006] NSWSC 589

Strojczyk v Kopycinzki [2006] NSWSC 589

Because the will gave the Plaintiff only a $10,000 legacy and household furniture and made no provision for his accommodation, while moving to his own Lachlan Street unit would deprive him of rental income and reduce his weekly income from $358 to $220, the Plaintiff was left without adequate provision for his proper maintenance. His accommodation needs were properly met by a life right of residence in the Norfolk Street unit, with provision for a substitutionary residence, rather than an absolute gift of the property, and the competing claims of the Deceased's children did not reduce or extinguish that entitlement.

Jurisdiction
Australia
Judgment Date
16 June 2006
Procedural Posture
Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Plaintiff's Late Wife. / Judgment After Hearing; Matter Stood Over for Short Minutes to Reflect Proposed Orders.
Outcome
Matter stood over to a date to be fixed for short minutes reflecting proposed orders for provision to the Plaintiff by way of a life right of residence.
Legal Topics
['claim by Widower' 'adequate Provision for Proper Maintenance' 'right of Residence' "competing Claims of Deceased's Children" 'costs From Estate']
['succession' 'family Provision'] ['claim by Widower' 'adequate Provision for Proper Maintenance' 'right of Residence' "competing Claims of Deceased's Children" 'costs From Estate']

Case Brief

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Procedural Posture

Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Plaintiff's Late Wife. / Judgment After Hearing; Matter Stood Over for Short Minutes to Reflect Proposed Orders.

Legal Issues

  1. 1 ['Whether the Plaintiff, as widower of the Deceased, was an eligible person under section 6(1) of the Family Provision Act.' 'Whether the will left the Plaintiff without adequate provision for his proper maintenance.' "What provision, if any, should be made for the Plaintiff having regard to his accommodation needs and the competing claims of the Deceased's children."]

Ratio Decidendi

Because the will gave the Plaintiff only a $10,000 legacy and household furniture and made no provision for his accommodation, while moving to his own Lachlan Street unit would deprive him of rental income and reduce his weekly income from $358 to $220, the Plaintiff was left without adequate provision for his proper maintenance. His accommodation needs were properly met by a life right of residence in the Norfolk Street unit, with provision for a substitutionary residence, rather than an absolute gift of the property, and the competing claims of the Deceased's children did not reduce or extinguish that entitlement.

Court Disposition

Matter stood over to a date to be fixed for short minutes reflecting proposed orders for provision to the Plaintiff by way of a life right of residence.

Orders

  • ['In addition to the benefits given to him by the will, the Plaintiff is to receive a right of residence for life in unit 2/18-20 Norfolk Street, Liverpool.' "The Plaintiff is to have an entitlement, should he so direct, for a substitutionary residence to be acquired by the Defendant and held on like terms as to the...