Dimic v Djekovic [2014] NSWSC 1502

Dimic v Djekovic [2014] NSWSC 1502

The deceased did not make adequate provision for the proper maintenance or advancement in life of the plaintiff. Taking into account all statutory factors, the plaintiff is entitled to provision out of the estate by way of 80% of the net proceeds of sale of the Rose Bay property (in lieu of the specific legacy in the Will), the right to occupy that property rent-free for up to two years from the order, and associated orders as to costs; outright ownership of the entire property was not justified given the plaintiff’s needs and circumstances.

Parties
Plaintiff: Zagorka Dimic; Defendant: Milan Djekovic
Jurisdiction
Australia
Judgment Date
30 October 2014
Procedural Posture
Succession Family Provision / Principal Judgment Orders for Parties to Bring in Short Minutes of Order, Proceedings Stood Over
Outcome
Plaintiff to receive, in lieu of original will provision, 80% of net value of Rose Bay property (upon sale), with a right to occupy the property rent-free for two years from date of orders; parties to bring in Short Minutes of Order within 14 days; costs to be paid out of the residue of estate; proceedings stood...
Legal Topics
Family Provision Orders, De Facto Relationships, Adequate Provision, Discretion in Family Provision, Testamentary Intentions
Succession Law Equity Family Provision Orders De Facto Relationships Adequate Provision Discretion in Family Provision Testamentary Intentions

Case Brief

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Parties

Zagorka Dimic

Plaintiff

Milan Djekovic

Defendant

Procedural Posture

Succession Family Provision / Principal Judgment Orders for Parties to Bring in Short Minutes of Order, Proceedings Stood Over

Legal Issues

  1. 1 Whether adequate provision for the proper maintenance or advancement in life of the plaintiff (de facto partner) had been made by the deceased's will; If not, the amount and nature of family provision order to be made

Ratio Decidendi

The deceased did not make adequate provision for the proper maintenance or advancement in life of the plaintiff. Taking into account all statutory factors, the plaintiff is entitled to provision out of the estate by way of 80% of the net proceeds of sale of the Rose Bay property (in lieu of the specific legacy in the Will), the right to occupy that property rent-free for up to two years from the order, and associated orders as to costs; outright ownership of the entire property was not justified given the plaintiff’s needs and circumstances.

Court Disposition

Plaintiff to receive, in lieu of original will provision, 80% of net value of Rose Bay property (upon sale), with a right to occupy the property rent-free for two years from date of orders; parties to bring in Short Minutes of Order within 14 days; costs to be paid out of the residue of estate; proceedings stood...

Orders

  • Plaintiff to receive 80% of net value of Rose Bay property (subject to sale) in lieu of will provision, plus right to occupy property rent-free for up to two years after orders;
  • Parties to submit Short Minutes of Order within 14 days reflecting judgment;