Supreme Court New South Wales

• Medium Neutral Citation: Skarica v Toska [2014] NSWSC 34
• Hearing dates: 23 May and 7, 13 and 14 June 2013
• Decision date: 14 February 2014
• Jurisdiction: Equity Division
• Before: Lindsay J

Decision

Direct that the plaintiff bring in Short Minutes of Orders, including a grant of provision for the plaintiff, along the lines set out in paragraph 69.

• Catchwords: SUCCESSION - FAMILY PROVISION - Eligible person - Close personal relationship - Living together but with separate residence maintained - Domestic support and personal care - Quasi-sibling friendship - Long term relationship
• Legislation Cited: Succession Act 2006 NSW; Conveyancing Act 1919 NSW; Interpretation Act 1897 NSW; Property (Relationships) Act 1984 NSW
• Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 at 659[8]-660[11]); Churton v Christian (1988) 13 NSWLR 241 at 252A-E; Hayes v Marquis [2008] NSWCA 10 at [75]-[83]; Popescu v Borun [2011] NSWSC 1532 at [51]; Re Fulop Deceased (1987) 8 NSWLR 679 at 681
• Texts Cited: -
• Category: Principal judgment
• Parties: Nevenko Skarica (Plaintiff); Dragica Toska (Defendant)
• Representation: Counsel: D Reid (Plaintiff); K Morrissey (Defendant); Solicitors: Duncan & Associates (Plaintiff); Pinto & Associates (Defendant)
• File Number(s): 2012/00182125

Judgment

INTRODUCTION

1 This judgment relates to an application (made within the time limited by s 58 of the Succession Act 2006 NSW) for family provision relief, under Chapter 3 of the Act, by a plaintiff who claims to be eligible to make such a claim as "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" within the meaning of s 57(1)(f) of the Act.

2 Neda Duracic, late of Goodlet Street, Surry Hills ("the deceased") died on 18 March 2012, aged 75 years, leaving a will dated 9 November 2007, probate of which was granted to the defendants on 31 July 2012.

3 Her estate comprises a two-thirds share in her residence (the land contained in Folio Identifier 6/220306) together with a sum of money, part of which remains to be accounted for by the plaintiff. The substantial asset is the land.

4 The residence can be taken, for the purpose of these proceedings, to have a current market value somewhere in the rage of $802,000- $850,000, compared with an estimated value at the date of the deceased's death of $742,500.

5 The estimate of current market value is based upon an informal appraisal of an "estimated selling price" by a real estate agent.

6 In the absence of more precise valuation evidence I formally find that the residence has a current market value of $826,000, mid - range, and that the deceased's two-thirds share of that is worth about $550,650.

7 The defendants are friends of the deceased. They are named in her will as executors and trustees of the will, but not as beneficiaries.

8 By clause 4 of her will, the deceased left six legacies, each in the sum of $10,000, to six relatives: two sisters, three nephews and one niece.

9 The remainder of her estate was left, by clause 5 of the will, ""to my very poor sister", a third sister not the recipient of a legacy.

10 All seven of the named beneficiaries reside in Croatia, apparently in circumstances which, by Australian standards, would be regarded as necessitous.

11 Clause 6 of the will is important. It relates expressly to the plaintiff. It attributes to him the status of a "boyfriend". It is predicated on a statement that the deceased had already given him a one third interest in her Surry Hills residence. It explains that, on the foundation of that gift, the deceased had made no provision for him in her will.

12 Clause 6 is in the following terms:

"6. I hereby declare that I do not wish to make any further provision to [sic] my boyfriend the said NEVENKO SKARICA because I already gave him one third of my property at [xx] Goodlet Street, Surry Hills."

13 Use of the expression " the said NEVENKO SKARICA" to describe the plaintiff is a little bit of lawyers' language suggestive of an earlier reference to him in the will. In fact, there is none. Whether there had been in an earlier draft is not a question explored by the parties in these proceedings.

14 By clause 6, the deceased may be taken to have spoken from the grave about what appears, on any view of the evidence, to have been an unusual relationship between the plaintiff and herself.

THE PLAINTIFF AS AN "ELIGIBLE PERSON" : SUCCESSION ACT, ss 57 and 59(1)(a)

15 The plaintiff, himself is an unusual man, given to unusual behaviour. In her final submissions his counsel conceded, properly, that he "came across in the witness box as gruff &, at times, even somewhat arrogant."

16 Counsel for the defendants suggested, in his final submissions, that some allowance should be made to the plaintiff because of his mental health problems. I stop short of finding that the plaintiff has "a mental health problem" in the sense of mental incapacity but, I agree, he appears to be mentally unstable and allowance should be made for his cultural background, at least. He was born in 1946, in what used to be Yugoslavia. Although he came to Australia in 1964, he has remained true to his origins. One of the options he presently has under active consideration is a return to Croatia.

17 His manner of giving evidence; his inconsistent statements about the nature of his relationship with the deceased and his interest in the Surry Hills property; his pre emptive action in occupying the Surry Hills property shortly before the deceased's death; and his misuse of moneys standing to the credit of accounts of the deceased, or her estate, for his own advantage, mark him out (on one view) as a greedy, grasping man not lightly to be accepted as a witness of truth.

18 That said, two objective facts tell in his favour as well as against him. First, in 1989 (eleven years after she purchased the property in her own name, alone) the deceased deliberately transferred to him a one-third share of her Surry Hills residence as a tenant in common, retaining a two-thirds share for herself. Secondly, in 2007 her relationship with him was of such a kind that she felt motivated to explain, in her will, why it was that she had made no testamentary provision for him.

19 A substantial part of that explanation is, by inference, a desire on the part of the deceased to benefit her Croatian relatives, particularly her "very poor sister". However, attention returns to clause 6.

20 Clause 6 marks the plaintiff out as someone important in the life of the deceased and as someone who, in her contemplation, may have had a reasonable expectation of inheritance from her estate.

21 The two of them appear never to have lived together in a conventional, single household. On any view of the evidence (and in the perspective of the defendants) the deceased generally lived alone. Until the plaintiff unilaterally surrendered his Housing Commission tenancy and moved into the Surry Hills property shortly before the death of the deceased - intent upon acting out the old adage that "possession is nine tenths of the law"- he maintained a separate residence nearby.

22 Whether (as he, now, maintains occurred at the commencement of his relationship with the deceased in or about 1975) they ever experienced sexual intimacy is a question dependent for its determination on an acceptance or otherwise of the plaintiff's credibility, and reliability, as a witness. Objectively, one cannot know the truth. He told the Guardianship Tribunal that he had "never been in a sexual relationship or a marital relationship" with the deceased. (Exhibit P1, exhibit NS4, p 1 of 6). A degree of scepticism vies with an inability to exclude a sexual relationship as a fact, and an ultimate conviction that nothing turns on it one way or another.

23 The plaintiff's initial contention that he and the deceased were "living in a de facto relationship" at the time of her death (so as to qualify him as an "eligible person" within the meaning of s 57(1)(b) of the Succession Act 2006 NSW) fell away during the course of the final hearing.

24 It could not survive his cross examination, in the course of which he conceded that his relationship with the deceased was like that of "brother and sister"; and that he was "a friend" of the deceased who "for a while, for a few years...helped with her care" and "sometimes" stayed in the same house she was in (transcript, page 46). In re-examination, he confirmed the sibling analogy and embraced the labels "boyfriend" and "girlfriend" (transcript, page 94).

25 The plaintiff's cross examination was grounded upon an affidavit sworn by him on 17 February 2012 in proceedings arising out of the deceased's deteriorating health and hospitalisation in 2011.

26 In August 2011 a senior social worker at St Vincent's Hospital in Sydney, applied to the Guardianship Tribunal of NSW for the appointment of a guardian and a financial manager for the deceased. On 5 October 2011, after a hearing on that date, the Tribunal appointed the Public Guardian as her guardian and the NSW Trustee as her financial manager.

27 The plaintiff resisted that development, and continued his resistance until the deceased's death, appropriating her funds in pursuit of an unseemly fight (allegedly at the urging of the deceased) to take control of her property.

28 In his affidavit of 17 February 2012 the plaintiff expressly disavowed the proposition that he and the deceased were "a couple". He claimed the status of the deceased's "full time carer" for the five years proceeding the date of the affidavit.

29 The affidavit was apparently sworn in support of an application to this court (said to have been successful) for review of an order issued by the Public Guardian that he not be allowed any contact with the deceased, consequent upon which he had been banned from visiting her at the nursing home to which she had been transferred on 16 February 2012 (from hospital) and where, about a month later, she died.

30 There is conflicting evidence before the Court as to whether the deceased did, or did not, want to see the plaintiff during her last days, and whether she was urging him on in his battles with the protective care thrown around her, or complaining that he had taken her money. There may well be an element of truth in each snapshot of descent into death. Ambivalence is not unknown on that road.

31 Whether there is more than coincidence in the date of the deceased's will (9 December 2007) and the plaintiff's claim in February 2012 to have been her full-time carer for the preceding five years was not explored in the evidence.

32 Objectively, what emerges from the evidence, with all its contradictions, is a personal relationship between the plaintiff and the deceased which was geographically proximate, familial and characterised by a special friendship, sometimes volatile, attended by the provision of support, care and attention by one to the other.

33 In its deliberations, the Guardianship Tribunal appears to have accepted that the plaintiff could accurately be described as the deceased's "friend and carer". On the evidence before me, I concur in that description.

34 Section 57(1)(f) of the Succession Act picks up the definition of "close personal relationship" in s 3(1) which, in turn, picks up the definition in s 3(3), which is subject to s 3(4).

35 Sections 3(3) and 3(4) of the Succession Act are in the following terms:

"(3) For the purposes of this Act, a 'close personal relationship' is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee and reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). "

36 These provisions are in substantially the same terms as ss 5(1)(b) and 5(2) of the Property (Relationships) Act 1984 NSW. Section 5 defines a "domestic relationship" (s 5(1)(a)) or a close personal relationship as elaborated in s 5(1)(b) and s 5(2). The term "de facto relationship" is defined in the Interpretation Act 1897 NSW, s 21C.

37 Although s 3(4)(a) of the Succession Act uses the expression "fee and reward" and s 5(2)(a) of the Property (Relationships) Act uses the expression "fee or reward", nothing appears to turn on the distinction. I do not exclude the possibility of a clerical error in the office of the Parliamentary draftsman. Section 3(4)(a) can be read, more naturally and without harm to the legislation, as if it said "fee or reward".

38 The fact that, as I find, the plaintiff and the deceased each had a deliberate, subjective intention not to live "as a couple" would not necessarily preclude a finding that, viewed objectively, they were in fact living "as a couple" within the meaning of the legislation. However, the decision of the plaintiff to abandon a claim based on the existence of a de facto relationship was, on the facts of this case, correct. An informal, familial relationship similar to that of siblings is not " a relationship as a couple" living together.

39 In the context of a de facto relationship, the concept of "living together" does not necessitate the existence of a single residence because people can live together in a place which can be said to be their home and, at the same time, jointly or severally have more than one home which, from time to time they separately occupy: Popescu v Borun [2011] NSWSC 1532 at [51].

40 The concept of "living together" in the definition of "close personal relationship" is no less adaptable to the reality of domestic life, unconstrained by a need to live "as a couple", but constrained by a need to point to the provision of "domestic support and personal care".

41 Unless the plaintiff falls within s 3(4)(a) of the Succession Act, he must be found to have established the existence of a "close personal relationship" between himself and the deceased at the time of her death.

42 They were, relevantly, "living together" at the Surry hills property at the time of her death despite her hospitalisation and subsequent, transitional transfer to a nursing home as death approached. It was undoubtedly her home. She shared ownership of it with the plaintiff. He "stayed there", although not continuously. Whether or not his pre-emptive move there (and the associated surrender of his Housing Commission tenancy) was motivated, in part, by a perception that the move would strengthen his subsequent claim to be an "eligible person" within the meaning of s 57(1)(b) or s 57(1)(f) of the Succession Act, the fact remains that at the time of her death, he was living at the same residence as the deceased called "home".

43 The expression "living together" has a dimension that focuses on the quality of a relationship rather than mere physical proximity: Hayes v Marquis [2008] NSWCA 10 at [75]-[83]. That dimension can be found to have existed here because of the special, familial (albeit sometimes stormy) friendship between the plaintiff and the deceased. Before she died he was anxious to see her, and she relented. When she died, the defendants naturally turned to him in making arrangements for her funeral, and he was there.

44 The plaintiff and the deceased, each, provided the other with "domestic support and care". Attention naturally focuses on whether the plaintiff provided it to the deceased, but it could equally be said that she provided it to him. He did, in fact, provide support and care for her - perhaps not well, or wisely, but consistently within their long-term relationship. She, for her part, provided him with a place to stay, to call his own (in part), and she gave him access to her funds. Again, perhaps, at least, not wisely, but consistently within their long-term relationship.

45 And what they did, one for the other, was in pursuit of "domestic" arrangements, not "for fee [and/or] reward" within the meaning of s 3(4)(a) of the Succession Act. Theirs was not a commercial relationship, however mercenary the plaintiff may be said to have been in his self-serving manoeuvres.

46 The fact that, for a short time before the deceased's death (between 24 October 2011 and 17 January 2012 or thereabouts), he received a "carer's allowance" from the Australian Government (Centrelink) does not require a finding that he provided "support and personal care for fee [and/or] reward". It is common ground that he received six fortnightly payments of a carer's pension. His receipt of them does not require that an essentially private relationship be characterised as a business relationship.

47 Viewed objectively, and in all the circumstances, the provision of domestic support and personal care by the plaintiff to the deceased cannot fairly, or reasonably, be characterised as having been provided "for" fee and/or reward.

48 In summary, then, I find that the plaintiff has, on the evidence, established that he is an eligible person by reason of the Succession Act, s 57(1)(f).

FACTORS WARRANTING AN APPLICATION FOR FAMILY PROVISION RELIEF: Succession Act, s 59(1)(b)

49 Having found that the plaintiff is an "eligible person" by reason only of s 57(1)(f), s 59(1)(b) of the Act mandates that the Court consider whether, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the plaintiff's application for family provision relief.

50 Such factors are those which, when added to facts which render the plaintiff an "eligible person", would give him the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 252A-E.

51 In terms of the requirement for which s 59(1)(b) provides, the only factors which incline me to find that the making of his application for family provision relief is warranted are: (a) first , the plaintiff provided the deceased with domestic support and care after the date upon which the deceased made her will incorporating the declaration contained in clause 6; (b) secondly, there is an element of doubt about the plaintiff's mental stability , as has been illustrated by the respective final submissions of counsel; and (c) thirdly, misguided though he undoubtedly has been, the plaintiff has expended money of the deceased, for which he may be held accountable , in pursuit of objectives which he has persuaded himself were laid down for him, or condoned, by the deceased in resistance of the Guardianship Tribunal proceedings affecting her and their sequelae.

52 The plaintiff's conduct has been far from exemplary, especially having regard to the comparatively small size of the deceased's estate, her desire to benefit her Croatian relatives, and their necessitous circumstances. Nevertheless, allowing for factors I have identified, I am satisfied that the making of the plaintiff's application for relief was warranted.

ADEQUACY OF PROVISION FOR THE PLAINTIFF : Succession Act, s 59(1)(c)

53 Whether the court should make a finding in terms of s59(1)(c) of the Succession Act favourable to that application is the next question. Viewed from today's perspective, has adequate provision for the proper maintenance, education or advancement in life of the plaintiff been made from the estate of the deceased?

54 Were it not for the factors identified in response to s 59(1)(b), I would have answered that question in the affirmative. That is because I do not accept the plaintiff's evidence that he contributed to the acquisition, or maintenance, of the Surry Hills residence by the deceased. On my assessment of the evidence, her transfer of a one third share of the property to him was a gift; and, by that gift, she discharged any "moral duty" (past or prospective) she might otherwise have had to make testamentary provision for him.

55 In referring, here to "moral duty" I do not intend to import a forbidden concept into the language of the Succession Act (Andrew v Andrew (2012) 81 NSWLR 656 at 659[8]-660[11]) but merely to use a descriptor that, I apprehend, the parties to these proceedings would understand as a consideration relevant to an evaluation of whether the plaintiff could, or should, be said to have been left without adequate provision.

56 Expressed in terms of current community standards, unless additional factors are brought into account, the terms of the declaration in clause 6 of the deceased's will are a sufficient justification for an absence of testamentary provision for the plaintiff. Absent something beyond it terms, the declaration would strike most people as "fair enough".

57 Nevertheless, the absence of any testamentary provision for the plaintiff, in combination with the three factors found to have warranted an application for family provision relief, require a finding (for the purpose of s 59(1)(c) of the Succession Act) that adequate provision has not been made for the proper maintenance, education or advancement in life of the plaintiff.

AN ORDER FOR PROVISION FOR THE PLAINTIFF : Succession Act, s 59(2)

58 Having regard to the factors enumerated in s 60(2) of the Succession Act, and the terms of s 59(2), what provision "ought" now to be made for the maintenance, education or advancement in life of the plaintiff?

59 Full allowance must be made for the close nature, and lengthy duration, of the relationship between him and the deceased (unusual though it was), as well as for the smallness of the deceased's estate; her strong, justified concern for her Croatian relatives; and her earlier gift to the plaintiff of a share in her property, yet to be realised beyond an entitlement as a tenant in common to occupy the residence. He is no longer a young man: he lives on an aged pension, plus accumulated savings of about $63,000. Self-confident though he appears to be in demeanor, his personal circumstances, including his reliance on social security pensions for daily living, do not allow his future prospects to be viewed as anything more than they have been in the past. He lived for several years on an invalid pension before qualifying for an aged pension. For a short time, as has been indicated, he received a carer's pension.

60 Were the Surry Hills property to be sold now then, subject to any adjustments that might be made in the disposition of these proceedings (by way of a grant of provision, an accounting by the plaintiff for estate funds or for costs) he would have a modest nest egg of the order of $275,350 attributable to his share of the Surry Hills property.

61 Were the property to be sold he would need to find alternative accommodation. That need is not one that can, reasonably or fairly, simply be laid to the account of the deceased, her estate or her beneficiaries. It arises from a calculated decision by the plaintiff to surrender his Housing Commission lease.

62 He has about $63,000 in savings, not including approximately $9,000 he says he owes his brother, or $15,000 presently held in his solicitor's trust account as the balance of about $65,450 he withdrew from the deceased's bank account or received from the NSW Trustee on her account.

63 Of that $65,450 or so, $16,850 was spent by the plaintiff for purposes which the defendants concede should be on the account of the deceased. That leaves approximately $48,600 (of which about $15,000 remains in the plaintiff's solicitor's trust account) which the defendants' contend, and I accept, needs to be accounted for by the plaintiff in favour of the deceased's estate (Exhibits "D2" and "D3").

64 In my assessment, provision ought to be made for the plaintiff, out of the estate of the deceased, in the gross sum of $125,000, from which should be deducted (by way of set off) the sum of $48,600 for which the plaintiff is liable to account to the estate of the deceased, leaving a legacy in the net sum of $76,400.

65 This legacy, in combination with the plaintiff's share of the Surry Hills property (valued at about $275,350), leaves the plaintiff with provision from the estate of the deceased that allows for each of the factors that warranted his making an application for family provision relief. It allows for his provision of domestic support and care after the date of the deceased's will. It provides comfort (a buffer, a contingency fund) for the possibility that the plaintiff's personal circumstances involve an element of mental instability that will, in time, require special care. It takes into account both the need for him to account for estate moneys and his subjective belief that he was entitled to use such moneys to advance an agenda he attributes, at least in part, to the deceased herself.

66 Having regard to the facts presently known to the Court, community values (including an allowance for the wisdom and justice demonstrated by the deceased in the terms in which she made her will) point towards a modest legacy for the plaintiff, preserving a substantial part of the deceased's estate for the declared objects of her testamentary beneficence.

PROPOSED ORDERS

67 I will allow the parties an opportunity to make submissions as to the form of the final orders to be made, bearing in mind the likelihood that an order will need to be made for the sale of the Surry Hills property so as to unlock the respective shares of the plaintiff and the estate in it.

68 Both sides of the record, in their final submissions, have contemplated a necessity for a sale of the property.

69 Subject to allowing the parties an opportunity to be heard on the form of the orders to be made, I propose that orders be made to the following effect:

(1) Order (pursuant to ss 59(2) and 65 of the Succession Act) that the plaintiff be granted a legacy of $76,400 out of the estate of the deceased.

(2) Order (pursuant to ss 66(3) of the Succession Act) that no interest be payable on that legacy if paid within three months of the date upon which final orders are made but that, until the legacy is paid, it shall thereafter bear interest at the rate prescribed by s 84A of the Probate and Administration Act 1898 NSW.

(3) Order (pursuant to s 65 of the Succession Act) that the legacy and any interest accrued thereon be paid out of the residue of the deceased's estate (for which clause 5 of her will provides).

(4) Order (pursuant to s 66 of the Succession Act and s 66G of the Conveyancing Act 1919 NSW) that the respective solicitors for the plaintiff and the defendants be appointed trustees for the sale of the Surry Hills property and that the property be vested in them upon the statutory trust for sale under Division 5 of Part IV of the Conveyancing Act.

(5) Order that the plaintiff's costs of these proceedings be paid out of the estate of the deceased on the ordinary basis.

(6) Order that the defendants' costs of the proceedings be paid out of the estate on the indemnity basis.

70 I am not presently minded to make any costs orders other than these, the usual form of costs orders, notwithstanding preliminary submissions made in support of a different form of orders.

71 The plaintiff has succeeded in obtaining a grant of relief. However, along the way, he has abandoned a claim (referable to s 57(1)(b) of the Succession Act about the existence of a de facto relationship which absorbed more time, and estate money, than was reasonable in light of his earlier denials of any such relationship. For their part, the defendants were granted an indulgence, by way of an adjournment of the final hearing part-heard, to accommodate their legal representation.

72 The only order I presently make is a direction that the plaintiff, on notice to the defendants, bring in short minutes to give effect to this judgment. In giving that direction, I reserve to the parties an opportunity to make submissions as to the form of the orders to be made.

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Decision last updated: 14 February 2014