Boniecki v Brown

CATCHWORDS : Succession. Family Provision. Claim by adult son. Financial and material circumstances of Plaintiff. Absence of contact between Plaintiff and Deceased for most of Plaintiff's life. Deceased abdicated all responsibilities for Plaintiff from time when Plaintiff was aged about 8. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claims of other beneficiaries.

LEGISLATION CITED : Family Provision Act 1982 Wills, Probate and Administration Act 1898

CASES CITED : Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 79 ALJR 731

PARTIES : Zbigniew Krzystof Boniecki (Plaintiff) Noel Mockett Brown (Defendant)

COUNSEL : Ms. J. Mundey (Plaintiff) Mr. F. Donohoe (Defendant)

SOLICITORS : Michael Corrigan (Plaintiff) Noel Brown & Associates (Defendant)

• 16 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5316 of 2004 ZBIGNIEW KRZYSTOF BONIECKI -v- NOEL MOCKETT BROWN JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 30 September 2004, Zbigniew Kryzstof Boniecki claims an order for provision for his maintenance, education and advancement out of the estate and notional estate of his father, Jerzy Boniecki (also known as George Boniecki) (to whom I shall refer as "the Deceased"). 3 The Deceased died on 8 September 2003, aged 74. He left a will dated 23 March 2003, probate whereof was on 19 March 2004 granted to Noel Mockett Brown, the executor named in such will (who is the Defendant to the present proceedings). 4 The Deceased, who was a native of Poland, was married twice. Of his first marriage, to Wanda Stefania Klycinska were born two children, being Jadwiga Anna (later known as Jagoda Anne) (now Mrs. Chapple), who was born in Poland on 18 December 1949, and who is presently aged 56, and the Plaintiff, who was born Ostroleka in Poland on 13 October 1951, and who is presently aged 54. 5 The Plaintiff's parents separated and ultimately divorced in Poland on 27 April 1953. The Plaintiff remained with his mother, whilst his sister remained with the Deceased. 6 Subsequently the Deceased married Zofia Boniecki on 1 January 1959, and shortly thereafter came to Australia as the Polish Commercial Representative, accompanied by his second wife, his daughter Jadwiga, and his stepson Tad (the son of Mrs Zofia Boniecki by her first marriage). From the time when the Deceased came to Australia he ceased paying child support for the Plaintiff, and ceased all contact with the Plaintiff (who was then aged only about 8). From that time also the Plaintiff and his mother lost all contact with Jadwiga. In 1963 the Deceased relinquished his position as the Polish Commercial Representative, and remained permanently in Australia from that time. 7 The Plaintiff and his mother continued to reside in Poland. His mother alone paying for all his education and living expenses from 1959 until the Plaintiff commenced employment at the age of 18 as a motor technician. 8 The Plaintiff attempted to establish contact with the Deceased by letter in 1979, to inform the Deceased of his marriage. The Deceased's response was not encouraging, he stating that in his opinion the establishment of any contact between the Plaintiff and himself was pointless. 9 Subsequently the Plaintiff's mother effected contact with Jadwiga, and, at her invitation, visited Australia in 1987. In consequence, the Plaintiff's mother was sponsored to migrate to Australia in early 1988. 10 The Plaintiff himself came to Australia on a visit in 1991, remaining for four months. During that period he effected contact with the Deceased and met him on several occasions. Before the Plaintiff's return to Poland the Deceased gave him $1,000, which he used to pay bills in Poland. Upon his return to that country he requested financial assistance from the Deceased, who sent him a further sum of $1,000, which the Plaintiff also used to pay debts and to support his family. 11 The Plaintiff's marriage broke down in late 1994 or early 1995, and he and his wife separated. They were divorced in 1996. Of that marriage were born two children, being a daughter now aged 26 and a son now aged 22. Those children reside in Poland and are not dependent upon the Plaintiff. 12 At the invitation of his mother the Plaintiff came back to Australia in early 1995, and has remained in this country since that time. At first he resided with his mother, and subsequently, from December 1995, he has been living with his present wife. 13 The Plaintiff resumed contact with the Deceased shortly after his return to Australia in early 1995. However, in mid-1996 the Deceased informed the Plaintiff that he did not wish the Plaintiff to contact him. The Plaintiff did not see the Deceased from that time until the Deceased's death some seven years later. There was, however, some sporadic correspondence, initiated by the Plaintiff, between himself and the Deceased during that period. 14 The Plaintiff married his present wife Kathleen Carlson on 31 July 1999, having been living with her since December 1995. Mrs Kathleen Boniecki is aged 61. She has three children from a previous marriage, none of whom are dependent upon her. 15 By his will the Deceased made provision for the Plaintiff, for his daughter Jadwiga, for his stepson Tad Boniecki, for his granddaughter Danielle Gibbins (the daughter of Jadwiga), for a friend Anna Kondracka and for an entity Polcul Foundation Limited (to which entity I shall make further reference). 16 In his will the Deceased set forth reasons why he had made certain of his testamentary provisions, and also why he had made only relatively small provision for his wife Zofia Boniecki (who is the sole registered proprietor of their matrimonial home at Rose Bay, and who does not seek any further provision from the estate of the Deceased). 17 The inventory of property discloses various assets totalling $2,062,379. However, it is estimated on behalf of the Defendant that, subject to the costs of the present proceedings, as well as to the costs in respect to the application for probate, the likely net distributable estate will be $1,836,565. 18 By his will the Decease gave to the Plaintiff an undivided one sixth share in the Deceased's interest in real property situate at and known as 41 Bishops Avenue, Randwick. That property consists of a block of six flats, in which the Deceased held a one half interest as tenant-in-common. The inventory of property discloses the Deceased's one half interest as having an estimated value of $1,200,000. However, a more recent estimation of the value of the entirety of that property (by Raine & Horne, Bondi Beach, 19 September 2005) suggests that the totality of that property has a present market value of between $2,000,000 and $2,100,000. Thus the one half interest of the Deceased in that property would be in the range of $1,000,000 to $1,050,000 (that being somewhat less than the estimation of $1,200,000 disclosed in the inventory of property). 19 Upon the basis of the foregoing more recent estimation, it would appear that the value of the one sixth interest of the Deceased's interest given to the Plaintiff by the will is within the range of about $167,000 to $175,000. In his submissions Counsel for the Defendant adopted as the value for the Deceased's one half interest in the Randwick property an amount of $1,025,000. Upon that basis the interest of the Plaintiff given to him by the will would have an estimated value of about $171,000. 20 The block of flats returns a gross annual income of about $88,000. It would appear that the Plaintiff would be entitled to a one sixth interest in the Deceased's interest in the net income derived from that block of flats since the date of the death of the Deceased. Without details of the outgoings in respect to that property it is not possible to calculate the likely annual entitlement of the Plaintiff from that income. However, it would clearly be no more than about $7,000 (that is, no more than one sixth of one half of about $88,000). 21 The liabilities of the estate as disclosed by the executor in his affidavit of 9 February 2005 total almost $226,000. The chief of those liabilities, in an amount of $225,000, represents the Deceased's one half share of the indebtedness of himself and his wife to Stolat Pty Limited in respect to a loan from that company to the Deceased and his wife. It would appear that Stolat Pty Limited was a company in which only the Deceased and his wife held an interest.

22 In calculating the value of the distributable estate the costs of the present proceedings must be taken into account, since the Plaintiff, if successful, will be entitled to an order that his costs be paid out of the estate, whilst the Defendant, irrespective of the outcome of the proceedings, will be entitled to have his costs paid out of the estate. It is estimated on behalf of the Plaintiff that his costs will total $33,000, whilst it is estimated on behalf of the Defendant that his costs will total $60,000. 23 It is appropriate, therefore, that the Court should proceed upon the basis that the net distributable estate will be in the order of $1,743,000. 24 The Plaintiff, who was most recently employed as a painting contractor, suffered an injury to his right shoulder on 1 June 2005. In consequence of the pain resulting from that injury the Plaintiff said that he had not been able to work thereafter (although it would appear that he may well have performed some intermittent painting work in that time). It was the Plaintiff's evidence that he was in constant pain, especially at night, the pain affecting his sleep. For the year 2004-2005 the Plaintiff's gross income was $32,000. 25 The Plaintiff's wife, who works as a professional carer, suffered an injury to her back in January 2004, which has limited her ability to work in that occupation. Her gross income for the last financial year was almost $20,000.

26 The Plaintiff and his wife have little in the way of assets. Their current savings total $4,000. The Plaintiff has a very small superannuation entitlement of about $600, and his wife has a superannuation entitlement of a little over $24,000. The Plaintiff owns a Mitsubishi Magna motor car, which he purchased in 2003 for $7,000, whilst his wife owns a Toyota Corolla motor car to which is ascribed a value of $1,500. Their only other assets consist of furniture and personal effects. They have debts totalling about $15,000, partly in respect to the purchase of the Plaintiff's motor vehicle. 27 The Plaintiff gave evidence of his weekly outgoings, in a total amount of about $770. The Plaintiff also expressed a desire that he should be able to visit his two children in Poland, whom he has not seen for about ten years. The Plaintiff's daughter was intending to marry in Poland in early 2006, and it was the desire of the Plaintiff that he and his wife should attend the wedding. The Plaintiff gave evidence concerning the cost of accommodation and fares for such a trip, expressing the opinion that he would need $16,000 for that purpose. The Plaintiff also stated that he would need about $14,000 after trade in to purchase a good second hand Holden station wagon, which he considers he should have because both the motor vehicles owned by himself and his wife are very old and are expensive to maintain. 28 Until April 2003 the Plaintiff and his wife resided in a flat at Randwick, for which they paid rent of $280 a week. They then removed to a two bedroom house at Batehaven in April 2003, in order to save money on rental. There they paid rent of $150 a week. Subsequently the Plaintiff and his wife removed to Queanbeyan, in order to reduce the Plaintiff's travelling time to work. However, the Plaintiff said that it was still his intention to reside permanently in the area of Bateman's Bay. The Plaintiff currently pays rent of $270 a week. It is the desire of the Plaintiff that he should be able to purchase a residence in that area. Enquiries of local real estate agents indicate that the price of a three bedroom house in the Bateman's Bay area is between $330,000 and $400,000, depending upon location and quality of the property, and that the average price for such a residence is in the range of about $350,000 to $360,000. 29 Considerable evidence was placed before the Court concerning the financial and material circumstances of other beneficiaries named in the will of the Deceased, in particular, the Deceased's daughter (the Plaintiff's sister) Mrs Jadwiga Chapple, and the Deceased's stepson Tad Boniecki. 30 It was quite apparent that the Deceased had been an extremely generous father to Jadwiga, (or Jagoda, as she is now known), and had given to her very considerable financial and material assistance (by way of acquisition of residences and purchase of a motor vehicle, as well as monetary advances). Further, that the Deceased had been a close and loving parent to his stepson Tad Boniecki, who regarded the Deceased in all respects as a father, rather than as a stepfather. 31 By his will the Deceased gave to Mrs. Chapple the Deceased's one half share as tenant-in-common in unit 10, 27 Balfour Road, Rose Bay. A value of $215,000 was ascribed to that share in the inventory of property. That property is a two bedroom strata unit, which is currently rented for $270 a week. A later estimation by Raine & Horne, Bondi Beach gives the current price of that strata unit as being about $430,000. In consequence, the interest of the Deceased therein would be about $215,000 (which is the estimated value ascribed thereto in the inventory of property).

32 Mrs Chapple and her husband, Lindsay Chapple, have assets totalling about $318,000, which consist principally of their residence at Buff Point, to which an estimated value of $280,000 is ascribed. Their liabilities consist essentially of a property loan on their residence, upon which a little over $47,000 is outstanding, and a Westpac Equity Access loan, in an amount of almost $50,000. Their only other significant liability is a Westpac Visa Card in an amount of $3,482. 33 At the present time Mrs Chapple (who suffers from congestive cardiac failure) is in receipt of a disability pension of almost $198 a week. Her husband, who is considerably older, is in receipt of an age pension of almost $188 a week. The total weekly income of Mrs Chapple and her husband is almost $386. 34 To Tad Boniecki (who was born on 17 April 1952, and who is now aged 54) the Deceased by his will gave a one third interest in the Deceased's half share in the Bishops Avenue property. Accepting the total value of that property to be $1,025,000, the value of the interest therein given to Tad Boniecki by the Deceased's will is a little under $342,000. The Deceased had also been very generous to Tad during his lifetime, giving him monetary gifts, a motor car, and financial assistance in the purchase of a flat.

35 Mr. Tad Boniecki has money on deposit, in a total amount of $331,000, from which he receives an annual income of $18,205. He owns an investment unit at Woolloomooloo, the value of which was not disclosed. From that property Mr Boniecki receives a gross annual income of $22,880. As well as regular outgoings associated with that property, Mr Boniecki has now received a special levy from the body corporate in respect to essential remedial work required on that building. Mr Boniecki's liability for that levy will be in an amount of almost $16,000. 36 Mr Boniecki has an amount of $11,500 in a Commonwealth Bank account. However, $10,000 of that sum represents a loan made to him by his mother, Mrs Zofia Boniecki, which was repayable in early 2006. The only other significant assets of Mr Boniecki are a Mazda 323 sedan motor vehicle (the value of which was not disclosed) and shares in IAG, worth almost $5,000. Mr Boniecki belongs to three superannuation funds, his superannuation entitlements being, respectively, almost $50,000 (which he cannot access until he attains the age of 60), about $19,600 (most of which amount can be accessed by him at the present time) and about $7,200 (most of which amount can be accessed by him at the present time). 37 Mr. Boniecki does not own his own residence, but lives in a flat at Woollahra which is owned by his partner. Mr. Boniecki, who worked in the field of information technology, has not been in employment since 2003, and it is unlikely that he will be able to obtain further employment in that field. His partner, who was a teacher by profession, has not worked since the end of 2002. The total combined income of Mr. Boniecki and his partner (from investments and superannuation) for the 2005-2006 financial year is expected to be $55,517. 38 To his granddaughter Danielle Gibbins the Deceased gave a one sixth share in his half interest in the Bishops Avenue property, that one sixth share having a value of a little under $171,000, together with the Deceased's one half share in the home unit situate at and known as 1/67 Curlewis Street, Bondi, to which one half share an estimated value of $175,000 was ascribed. That is, the total value of the benefits given to Danielle Gibbins by the will of her grandfather was approximately $346,000.

39 Miss Danielle Gibbins resides with a partner, who suffers from a health problem. Miss Gibbons, who has tertiary qualifications, is employed as a school teacher on a casual basis. She and her partner have no assets. Their weekly expenditure exceeds their income.

40 By his will the Deceased gave to Anna Kondracka the Deceased's one half share in a home unit situate at and known as 3/21 Manning Road, Double Bay, to which one half share an estimated value of $195,000 was ascribed. 41 Mrs Kondracka, who resides in Poland, is a member of the Kuratczyk family, which sheltered the Deceased when he escaped from a Warsaw ghetto during World War Two. This the Kuratczyk family did at great personal risk to themselves and to the Deceased. Apparently the Deceased regarded the Kuratczyk family as being his own real family, he having been separated from his natural father at the age of 10 and having lost his mother at the age of 13. The Deceased maintained his association with Mrs Kondracka after the War, and, indeed, the Deceased upon his death was buried in the Kondracka family tomb in Warsaw. Mrs Kondracka has a small income from a pension (which is minuscule by Australian standards). Her income is entirely expended on her outgoings. She pays rent for her residence, and is responsible for a son with severe medical problems.

42 I have already referred to Polcul Foundation Limited, which is a beneficiary named in the will of the Deceased. By the terms of that will the Deceased gave to that entity a one third interest in the Deceased's half share in the Bishops Avenue property. That is, the Deceased gave to that entity an interest identical to that which he gave to his stepson Tad Boniecki. 43 Polcul Foundation Limited (to which I shall refer a "Polcul") was established by the Deceased in 1980. The purpose of that entity has been to support persons who have contributed to the building of a free and democratic Poland. The Deceased took a great interest in Polcul during his lifetime, and was extremely generous towards that entity, both by way of financial contributions and also by way of giving generously of his time and energy to advance the aims and purposes of Polcul. 44 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 45 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 46 The Plaintiff as a son of the Deceased is an eligible person within paragraph (b) of the Definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. The other eligible persons in relation to the Deceased are the Deceased's widow, Mrs Zofia Boniecki, who is an eligible person within paragraph (a) of the foregoing definition; the Deceased's daughter, Jadwiga, who is also an eligible person, within paragraph (b) of the foregoing definition; and the Deceased's stepson Tad Boniecki, who is an eligible person within paragraph (d) of the foregoing definition, in that he was a member of the same household as the Deceased and was partly dependent upon the Deceased. 47 None of those other eligible persons has made a claim for additional provision out of the estate of the Deceased. However, each of those persons, and also each of the other beneficiaries named in the will of the Deceased (being Danielle Gibbins, Anna Kondracka and Polcul) has indicated his, her or its opposition to any alteration to the testamentary dispositions of the Deceased. 48 The claim of the Plaintiff must be approached in the light any competing claims upon the testamentary beneficence of the Deceased. In the circumstances of the instant case the only such competing claims are those of the other three eligible persons, and the other three beneficiaries. 49 It is quite apparent, both from the terms of the will itself, and also from the evidence given on behalf of the Defendant, that the Deceased had a close and affectionate relationship with Jadwiga (although there was an estrangement between them in the later years of the Deceased's life), and especially with Jadwiga's daughter Danielle, and with Tad Boniecki, who was treated and regarded as a son rather than as a stepson to the Deceased. Polcul, created by the Deceased, occupied a very special and very important place in the Deceased's life. Little information concerning the finances of Polcul was placed before the Court (apart from the fact that it presently has a base capital of about $1.6 million and that the Deceased during his lifetime gave to it about $200,000). 50 It was submitted on behalf of the Defendant that any order for provision which might be made in favour of the Plaintiff should not have the effect of reducing, let alone extinguishing, the testamentary provisions made by the Deceased for those whom the Deceased considered entitled to have such provisions made in their favour. 51 In performing the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse (1994) 181 CLR 201 at 208-210 the Court must first consider whether, in consequence of the testamentary dispositions of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance. (See, also, Vigolo v Bostin (2005) 79 ALJR 731, in which the High Court affirmed the correctness of the foregoing test in Singer v Berghouse.) 52 Essentially it was the case for the Plaintiff that his principal need was for the acquisition of a residence. Not only would the purchase of a residence significantly reduce the Plaintiff's outgoings, by the amount of $270 a week, which he presently expends on rent, but the purchase of a residence would, in the submission of the Plaintiff, provide for the future security of his wife and himself. 53 The acquisition of a residence is a laudable ambition on the part of any adult, be it as spouse, parent or child. It must, however, be appreciated that an adult son has no absolute entitlement to look to a parent for the provision of an unencumbered residence. 54 Under the terms of the will the Plaintiff is entitled to an interest in the Bishops Avenue block of residential flats, which interest has a monetary value of about $171,000. However, it will be appreciated that, if the Plaintiff, as a co-owner of that property, requires its sale, then the costs associated with the sale must be deducted from the proceeds, with the consequence that the Plaintiff, and each of the other co-owners, will receive somewhat less than the monetary value of their interest therein. It should also be appreciated, however, that (as I have already observed) the Plaintiff and the other co-owners will be entitled to share in the income generated from the rental of that property in the period since the death of the Deceased. 55 Whilst upon the material available to the Court it is difficult to conduct a precise calculation, it is likely that, if the Bishops Avenue property were to be sold, the Plaintiff would receive not much less than the amount of $171,000 which is the monetary value ascribed to his share in that property. Such an amount will go very far towards the acquisition of a house property of the nature desired by the Plaintiff in the Bateman's Bay area. I query whether it is necessary for the Plaintiff and his wife, having no dependents, to acquire a three bedroom brick residence in that area, rather than a two bedroom residence, which, it would appear, could be acquired for a lesser price. No evidence has been placed before the Court on behalf of the Plaintiff concerning the nature of any housing loan which the Plaintiff and his wife might be able to obtain in respect to the acquisition of a residence of the nature desired by them. 56 For most of the Plaintiff's life he had no contact with the Deceased. That absence of contact is in no way to be attributed to the Plaintiff. Indeed, he made overtures to his father, which were largely repulsed. The Deceased, whilst generous to Jadwiga, to Tad, to Danielle, to Mrs Kondracka and to Polcul did not manifest any generosity towards his only son, and, indeed, from the time when he severed connections with the Polish government in 1963, did not even make payments of child maintenance for the Plaintiff. 57 I do not consider the lack of contact between the Plaintiff and the Deceased to be a factor which would militate against the claim of the Plaintiff for an order for provision from the estate of his father. 58 I am satisfied that the financial and material circumstances of the Plaintiff (including the present limitation on his working capacity resulting from his injury and his wife's limited working capacity resulting from her injury) have the effect that in the light of the testamentary benefits given to him by the will of the Deceased, the Plaintiff has been left without adequate provision for his proper maintenance. Any additional provision which might be given by the Court must, of course, have the effect of reducing the benefits to be received by the other beneficiaries named in the will of the Deceased. 59 The residue of the estate is by clause (g)(i) given to the Deceased's widow, Mrs Zofia Boniecki. However, almost the entirety of that residue (which on my calculations will total nearly $234,000) will go to meeting the liabilities of the estate, in an amount of almost $226,000. Provision must then be made for the costs of the present proceedings, in a total amount of about $93,000. I have already referred to the income generated by the Bishops Avenue block of flats. No evidence has been placed before the Court concerning any income which may have been or may currently be being produced by the other items of real property in which the Deceased held an interest at the time of his death (being unit 3, 21 Manning Road, Double Bay; unit 10, 27 Balfour Road, Rose Bay; and unit 1, 67 Curlewis Street, Bondi). 60 In my conclusion it is appropriate that the Plaintiff, in addition to the benefits given to him by the will of the Deceased, should receive a legacy in an amount which, in addition to those benefits, will enable the Plaintiff to acquire a residence in the Bateman's Bay area, either absolutely or with the need to resort to only a small housing loan. I consider that the appropriate amount of such a legacy is $150,000. To the extent that the residue of the estate of the Deceased is not sufficient to meet such a legacy, then I consider that that legacy be borne by the interest which under the terms of the will is given to Polcul. 61 I make the following orders:

(1). I order that, in addition to the benefits given to him by the will of the late Jerzy Boniecki (also known as George Boniecki) ("the Deceased"), the Plaintiff receive a legacy in the sum of $150,000, such legacy not to bear interest if paid on or before 20 July 2006, and if not so paid to bear interest at the rates prescribed for unpaid legacies by the Wills, Probate and Administration Act 1898, and that the burden of such legacy, if not payable out of residue, be borne by that part of the estate of the Deceased which under the terms of the aforesaid will is given to Polcul Foundation Limited.

(2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. (3). The exhibits may be returned.

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