Stojanovski v Stojovski [2016] NSWSC 976

Stojanovski v Stojovski [2016] NSWSC 976

Plaintiff failed to establish that the transfer of the Bardwell Valley property to the Defendant was entered into by the deceased with the relevant intention, wholly or partly, of denying or limiting provision being made for the Plaintiff from the estate. There is no evidence of such intention, only of the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 July 2016
Procedural Posture
Principal Judgment / Final Judgment and Orders
Outcome
Plaintiff's Summons dismissed; no family provision order made.
Legal Topics
['family Provision' 'intestacy' 'notional Estate' 'grant of Administration' 'extension of Time' 'intention Test for Notional Estate' 'costs in Succession']
['succession Law' 'equity'] ['family Provision' 'intestacy' 'notional Estate' 'grant of Administration' 'extension of Time' 'intention Test for Notional Estate' 'costs in Succession']

Source-derived case record

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Procedural Posture

Principal Judgment / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether Plaintiff is eligible for a family provision order as a child of the deceased' 'Whether time for making the claim should be extended' 'Whether Plaintiff received adequate provision from the estate or notional estate' 'Whether there is property (actual or notional estate) from which provision can be made' 'Whether the transfer of property to the Defendant was entered into with the intention to wholly or partly deny or limit provision for Plaintiff (s 80(2)(a) Succession Act)' 'Whether special circumstances justified a notional estate order out of time']

Ratio Decidendi

Plaintiff failed to establish that the transfer of the Bardwell Valley property to the Defendant was entered into by the deceased with the relevant intention, wholly or partly, of denying or limiting provision being made for the Plaintiff from the estate. There is no evidence of such intention, only of the deceased's wish to benefit Defendant. As such, the statutory requirements for designating property as notional estate are unmet, meaning there is no property from which a family provision order could be made; accordingly, the Summons must be dismissed.

Court Disposition

Plaintiff's Summons dismissed; no family provision order made.

Orders

  • ["Order that the Defendant be appointed to conduct the proceedings and represent the deceased's estate and notional estate for the purposes of these proceedings." "Order that the Plaintiff's Summons be dismissed." 'Order that each party is to bear her, and his, own costs, respectively, of the proceedings.']