Step Daughter, Survivorship, Family Provision & the Notional Estate

Frank Radinksi died in September 2018 at the age of 85 he married twice. Frank had two daughters Anna and Blzena (“the Plaintiff”) with his first wife Jela who died in 1983. He later married Terezija who had a son and a daughter (Frank’s stepdaughter) Tereza Osrecak from a previous marriage. Terezija also predeceased him, dying in 2015.

Frank’s main asset was his home which was owned by Frank and Tereza as joint tenants. Therefore, Frank’s share passed to Tereza by survivorship; the value of a half share in the property is approximately $410,000.

Frank’s last will made in 2011 left his estate to Terezija, if she predeceased him, (which was the case) the estate went to Tereza (the second defendant). Jasna Vukic (the first defendant) Tereza’s daughter, was appointed executor of the deceased’s estate. On Frank’s death all his assets passed to Tereza; as the estate was small (around $5000) there was no formal grant of probate.

Blzena received nothing from her father’s estate. She seeks an order for provision out of his estate under the Succession Act 2006 (NSW) in the form of a lump sum payment of between $200,000 and $250,000. To fund this payment, she seeks an order designating a half share of the property as Frank’s notional estate.

As I have discussed in previous posts in a Family Provision Claim the court must balance the testator’s moral obligation for the maintenance and education of a defined class of beneficiaries with the testamentary freedom to leave their estate as they wish. However, as Blzena is an adult beneficiary who has reached retirement age the Court held that any entitlement to family provision is best seen as a provision for “advancement” rather than “maintenance” 

The Court accepted that Frank failed to make adequate provision for Blzena’s advancement; finding the provision which “ought” to be made is a legacy for $220,000 to be taken from Frank’s half share of the property as notional estate. 

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