Estate Zukowski; Domaradzka v Wawazyniuk [2014] NSWSC 1614

Estate Zukowski; Domaradzka v Wawazyniuk [2014] NSWSC 1614

Although the deceased deliberately made substantial provision for the plaintiff, including the North Sydney unit, superannuation benefit, furnishings and a temporary right of residence, that provision did not adequately recognise the lifestyle to which she had become accustomed during a long de facto relationship, her domestic support of the deceased, her withdrawal from the workforce to travel with him, her care of him during terminal illness, her age and employment difficulties, and the size of the estate. Further provision was required, but transferring either the Kirribilli unit or the Cammeray unit would interfere too heavily with the deceased's testamentary intentions. A cash legacy...

Jurisdiction
Australia
Judgment Date
14 November 2014
Procedural Posture
Application for Family Provision Relief Under Chapter 3 of the Succession Act 2006 NSW / Principal Judgment After Hearing
Outcome
The plaintiff should receive a legacy of $850,000 in addition to the provision made for her by the deceased. Parties were to make submissions on the form of orders and costs.
Legal Topics
['family Provision' 'de Facto Relationship' "widow's Claim" 'competing Claims of Daughter and Sister' 'adequate Provision for Proper Maintenance, Education or Advancement in Life']
['succession' 'equity'] ['family Provision' 'de Facto Relationship' "widow's Claim" 'competing Claims of Daughter and Sister' 'adequate Provision for Proper Maintenance, Education or Advancement in Life']

Case Brief

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Procedural Posture

Application for Family Provision Relief Under Chapter 3 of the Succession Act 2006 NSW / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff had been made within the meaning of Succession Act 2006 NSW, s 59(1)(c).' "If adequate provision had not been made, what order for provision out of the deceased's estate ought to be made under Succession Act 2006 NSW, s 59(2)." 'Whether further provision should be made by transfer of the Kirribilli unit, transfer of the Cammeray unit, or by a cash legacy.' 'Whether the burden of any further provision should fall on Jessica, Irena, or both.']

Ratio Decidendi

Although the deceased deliberately made substantial provision for the plaintiff, including the North Sydney unit, superannuation benefit, furnishings and a temporary right of residence, that provision did not adequately recognise the lifestyle to which she had become accustomed during a long de facto relationship, her domestic support of the deceased, her withdrawal from the workforce to travel with him, her care of him during terminal illness, her age and employment difficulties, and the size of the estate. Further provision was required, but transferring either the Kirribilli unit or the Cammeray unit would interfere too heavily with the deceased's testamentary intentions. A cash legacy...

Court Disposition

The plaintiff should receive a legacy of $850,000 in addition to the provision made for her by the deceased. Parties were to make submissions on the form of orders and costs.

Orders

  • ['Order that, in addition to the provision made for her in the Will of the deceased and by his nomination of her as the recipient of his superannuation entitlements, the plaintiff receive out of the estate of the deceased a legacy in the sum of $850,000.' 'Order that interest on that legacy accrue at the rate...