Horst Marszalek died intestate in February 2018 aged 79 years. Horst had never married and had no children. His parents were dead and his closest surviving relatives were his brother, Reiner, who died in August 2018, and his nieces Ingeborg and Petra.
Horst’s intestate estate would be distributed, 25% each to Ingeborg and Petra, and 50% to the estate of Reiner. However, at the time of his death, Horst was living with, his close friend for over 30 years George Rakovich who sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW) (the Act).
As Horst died intestate George is not entitled to receive any share of his estate.
A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Proper provision means not only provision from the estate that alleviates poverty, but also takes into account the vicissitudes of life.
George worked full time and provided Horst with $100 per week for shared living expenses; performed odd jobs and shared some of the cooking and assisted Horst with some other jobs around the house. At specific moments of personal crisis in each other’s lives, George and Horst provided support to one another.
George had never been married, although he was in a long time de facto relationship with Carole Millar which ended in about 1993. There were two children of this relationship: a son Ben, who was born in November 1987, and daughter Jamie, who was born in May 1986.
George lived with Horst from the beginning of 2012 until his death in February 2018. He continued to live in the property until November 2019. Although he did not pay any rent, or occupation fee, to the estate, he had maintained the home and carried out any maintenance and repairs that had been required. He also paid the water rates.
The Court agreed that George was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member within s 57(1)(e) of the Act.
Reiners widow Helga the sole beneficiary of Reiner’s estate died in August 2019, after the commencement Court proceedings. The beneficiaries of Helga’s estate were her two sons, Ralf and Frank.
Helga’s estate comprised, in part, the estate of Reiner, which includes a half share of Horst’s estate.
Helga and Reiner visited Horst in Australia in 1990, in 1993, and for the last time, in 1996 corresponding by telephone, and by letter, about once a month and on special occasions.
Frank Ralf Petra and Ingeborg never met Horst although they spoke on the telephone or kept in contact with him via their parents.
In applying s60(2) of the Act the Court was satisfied that George was a good friend of Horst, and displayed close, paternal feelings for and felt a deep sense of grief following Hort’s death. Whilst there was no intimate or sexual relationship between them they had known each other for many years and had shared a house since 2012.
At the time of the hearing, George was living with his daughter, her husband and their three children, and due to his poor health was not able to continue with his work as a Site Supervisor.
George’s financial circumstances are unlikely to improve at his age, with his medical condition; significantly, he had placed the cash sum of $165,000 into a bank account in his son Ben’s name. Ben without his father’s knowledge, or consent, had spent all of the money on drugs and gambling. Ben has promised to repay the amount taken, but the Court raised concerns whether that promise will be realised.
The Court found that George is an eligible person, that the claim for family proceedings was commenced within time, and that the provision made for him pursuant to the operation of the rules of intestacy is inadequate for his proper maintenance or advancement in life, awarding him a lump sum equating to 45 per cent of the net estate that which will enable him to purchase accommodation in which to live, a modest amount for requirements of life.
55 per cent of the net value of the estate to be divided between the nephews and nieces of the deceased, with each receiving 13.75 per cent, providing each with a reasonable capital sum for their life’s requirements.