Bukovac v Baron

1 MASTER: These are proceedings under the Family Provision Act 1982. 2 The proceedings were originally instituted in the District Court of New South Wales, but by order of the Supreme Court made on 20 June 2000 they were transferred to the Supreme Court pursuant to section 145 of the District Court Act 1973. 3 By summons filed on 14 September 1999 the Plaintiff, Marija Bukovac, claims an order for provision for her maintenance out of the estate and/or notional estate of her late husband, Franco Bukovac (to whom I shall refer as "the Deceased"). The Deceased (who had been born at Zagreb in Croatia on 2 November 1932) died, aged 65, on 22 October 1998. 4 The Deceased left a will dated 29 August 1997, probate whereof was on 20 August 1999 granted to his daughter Carolina Dragica Baron, the executor named in such will (who is the Defendant to the present proceedings). By the terms of that will the Deceased left the entirety of his estate to the Defendant. 5 The Plaintiff and the Deceased (who was born on 8 March 1933 in Croatia, and is now aged 67) married in April 1959 in a civil ceremony in Croatia. Of that marriage was born one child, Verena Bukovac, on 26 July 1959. Subsequently the Plaintiff and the Deceased underwent a religious ceremony of marriage in Germany on 24 August 1964. 6 Before his marriage to the Plaintiff there had been born to the Deceased a daughter Carolina Dragica Baron (the present Defendant) on 7 February 1956, that child having been born of a relationship between the Deceased and a lady named Anna Baron, in Croatia. The Defendant is presently aged forty-five. 7 The Deceased, the Plaintiff and their daughter Verena migrated to Australia from Germany in December 1967. Initially they lived in Newcastle, where the Deceased was employed as a steel worker by BHP. They subsequently removed to Sydney in December 1968. The Deceased worked for various employers from then until he finally relinquished employment in 1986. 8 In 1969 there was purchased in the name of the Deceased alone a house property situate at and known as 48 Ashmore Street, Erskineville. The purchase price of that property was $9,000. It was financed by a housing loan of $6,000 from the Rural Bank of New South Wales. The balance of the purchase price came from joint funds of the Plaintiff and the Deceased which they had brought with them from Germany. 9 Subsequently an extension was effected to the Erskineville residence in 1970, costing about $15,000. That was paid from joint savings of the Plaintiff and the Deceased. 10 The Defendant arrived in Australia on 25 October 1970, she at that time being aged fourteen . The Defendant resided with the Deceased and the Plaintiff in the Erskineville house from the time of her arrival until the end of 1972, when, at the age of sixteen, she moved into residence with Mrs Anica Zeljko and her family at Erskineville. 11 In 1989 the Plaintiff, who had been in employment for the preceding twenty-one years, retired. With her retirement funds the Plaintiff and the Deceased purchased a block of land at Manyana Beach (near Pandalong on the South Coast of New South Wales) for about $20,000. That land was sold two years later for $49,000. In 1982 a further extension, costing about $25,000, was effected to the Erskineville residence, being funded by proceeds from the sale of the land at Manyana Beach. 12 The assets in the estate of the Deceased consist of the house property at Erskineville (to which a valuation of $290,000 is ascribed, although it would appear that the present value is likely to exceed $300,000, perhaps as much as $320,000), together with an amount of $652 in a bank account with the Commonwealth Bank of Australia at Newtown. 13 Since the death of the Deceased the Plaintiff has continued to reside in the residence at Erskineville, and has paid all outgoings in respect of that property. 14 The assets of the Plaintiff consist only of personal effects, furniture and furnishings (to which she ascribes a total value of $5,000). The only income of the Plaintiff is a pension from the Department of Social Security, presently in an amount of $181-35 a week. 15 It will be appreciated that the practical effect of the will of the Deceased is to deprive the Plaintiff of her home. She has nowhere else to live. 16 It should also be recorded that shortly before the institution of the present proceedings the Defendant gave instructions that the Plaintiff should be required to pay rent for her occupation of the Erskineville house. 17 The Plaintiff as the widow of the Deceased is an eligible person within paragraph (a) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As such, she has the standing to bring the present proceedings. It will be appreciated that the Defendant, as a child of the Deceased, is also an eligible person, coming within paragraph (b) of that definition. The only other eligible person in relation to the Deceased is Verena Bukovac, the daughter of the Plaintiff and the Deceased. Although served with a notice of claim, Verena Bukovac has not made any claim against the estate of the Deceased. 18 It was acknowledged by Counsel for the Defendant that ordinarily, in a case such as this, where the estate is a modest one, a widow of a marriage which obtained for thirty-nine years would be expected to receive the entirety of her husband's estate absolutely. 19 In the instant case, however, the Defendant seeks to resist the claim of the Plaintiff, and seeks to enforce the provisions of the will of the Deceased. In doing so she relies upon the conduct of the Plaintiff, asserting that that conduct is of such a nature as to disentitle the Plaintiff from any order for provision an entitlement to which the Plaintiff might otherwise have established. 20 The conduct upon which the Defendant relies falls into three categories, as follows:

(a) Statements attributed to the Plaintiff that the Deceased and the Defendant were involved in an incestuous relationship.

(b) The conduct of the Plaintiff in associating with men during her marriage to the Deceased.

(c) The Plaintiff's lack of concern for the welfare of the Deceased. 21 A very considerable quantity of affidavit evidence was filed on behalf of the Defendant in support of the foregoing allegations. An almost equal quantity of affidavit evidence was filed on behalf of the Plaintiff responding to those allegations. 22 Much of that affidavit evidence concerns alleged conduct of the Plaintiff in relation to the Defendant, rather than her conduct in relation to the Deceased. 23 I do not consider it necessary to set forth in detail the assertions and counter-assertions made by each of the Plaintiff and the Defendant concerning the conduct of the other and concerning incidents which occurred over a period of almost thirty years, from 1970 to late 1998. Each party has relied upon the evidence of acquaintances and neighbours to support the case for that party and the version of that party concerning various incidents regarded as relevant by one or other of the parties. 24 The evidence (both by way of affidavit and by way of cross-examination of witnesses) clearly established that the Plaintiff and the Defendant did not like each other and that they did not have a good relationship. Their mutual dislike appears to have existed from the time of the Defendant's arrival in Australia until the death of the Deceased, and has continued to the present time. The past or present relationship between those two ladies, however, is in no way determinative of the opposition by the Defendant to the claim of the Plaintiff. 25 In approaching the grounds upon which the Defendant relies in resisting the claim of the Plaintiff, it is appropriate to observe that whatever may or may not have been the conduct of the Plaintiff towards the Deceased, the Deceased did not throughout the thirty-nine years of his marriage to the Plaintiff manifest any objection to that conduct except, possibly, to the extent of making the will which is the subject of the present proceedings. In regard to that will it should also be recorded that the Deceased had made an earlier will, on 19 May 1975, under which the Plaintiff was named as the sole beneficiary. It is appropriate here also to record that the Plaintiff was unaware of the existence of the later will until almost a year after the death of the Deceased. 26 The only criticism of the Plaintiff which the Deceased himself appears to have manifested was upon the occasion when in the company of the Defendant the Deceased attended at the offices of Messrs Stewart Levitt & Co., solicitors, on 29 August 1997 for the purpose of making the will which is the subject of the present proceedings. On that occasion the conduct of the Defendant, who interpreted for the Deceased (who apparently was not fluent in the English language), was far from frank. It is unclear whether the solicitor (whom the Defendant did not choose to call as a witness) was even aware that the Deceased was married. Certainly, the Defendant did not disclose to the solicitor that the Deceased was, and for the preceding thirty-seven years had continuously been, residing with his wife, the Plaintiff. That conduct on the part of the Defendant can be described as duplicitous. 27 According to the Defendant the Plaintiff was in the practice of making statements suggesting that the Deceased and the Defendant were involved in an incestuous relationship. The Plaintiff denied making any such statements. 28 Such statements, if made, do not reflect well upon the Plaintiff. Nevertheless, even if such statements had been made, they did not poison relations between the Deceased and the Defendant. The evidence disclosed that there was a good relationship between the Deceased and his elder daughter, and that he was and remained fond of her until the end of his life. Even on the Defendant's account, the Deceased ignored these allegations, and advised the Defendant to do likewise. Further, the various witnesses who asserted that the Plaintiff made to them or in their presence allegations of this nature all said that they did not believe those allegations. 29 Mrs Carol Slobodnjak, one of the witnesses who on affidavit gave evidence of such a suggestion being made by the Plaintiff of an improper relationship between the Deceased and the Defendant, withdrew that allegation under cross-examination, saying that the conversation deposed to in paragraph 6 of her affidavit did not take place. 30 Petar Susic, the former husband of the Defendant, gave evidence of a conversation at which he, the Plaintiff, the Defendant and the Deceased were present, in which the Defendant confronted the Plaintiff with these allegations of impropriety between the Defendant and the Deceased attributed to the Plaintiff. The Deceased is reported by Mr Susic as having said, "Calm down, don't worry. I've listened to these stories all my life, but I don't take any notice, as I know how nasty and crazy Marija is." That response attributed to the Deceased rather suggests that the Deceased himself did not regard such statements seriously. If the Deceased had, in fact, regarded the Plaintiff as being nasty or crazy, it is unlikely that he would have lived with her for forty years. 31 Despite the total denial by the Plaintiff of making any such allegations of the nature described by the Defendant, it seems possible that some such allegation was on occasion made by the Plaintiff, but whether or not they were intended by the Plaintiff to be taken seriously it is difficult to say. Nevertheless, the Deceased himself did not treat any such allegations as being in any way serious, and did not allow them to affect his good relationship with the Defendant. Further, as has already been observed, the various persons to whom these allegations are said to have been addressed did not believe them. 32 As to the complaints made against the Plaintiff concerning her alleged association with men during her marriage to the Deceased, it emerged that there was, in fact, only one man who was the subject of these complaints. That was Mr Svetozar Majstorovic (who was referred to in the evidence as "Sveto"). The complaints by the Defendant and by the various other persons who criticised the conduct of the Plaintiff in allowing Sveto to be present in the house appeared to be grounded more upon the ethnic origin of Sveto (who was a Bosnian) and the fact that he was visiting a Croatian household, than upon the fact that it was a man who was visiting the Plaintiff in the matrimonial home occupied by herself and her husband. 33 The only witness who gave evidence attributing to the Deceased any complaints concerning the presence of Sveto in the house was the Defendant herself. Indeed, other witnesses (Mr and Mrs Slobodnjak) attributed to the Deceased a statement that Sveto was in the house helping him. Such a statement is consistent with the evidence of the Plaintiff that during the period after she had undergone surgery for breast cancer she found it very difficult to give to the Deceased the physical assistance which he required (for example, by lifting him), and that it was in that regard that Sveto gave physical assistance to the Deceased by helping to bathe or shower him, and that he also helped the Plaintiff in the house (by, for example, performing cleaning activities), and by doing shopping. 34 Any suggestion of sexual impropriety between the Plaintiff and Sveto has not been substantiated by the evidence. 35 Whatever may have been the Plaintiff's alleged lack of concern for the welfare of the Deceased, and in this regard I am by no means satisfied that the Plaintiff manifested any such lack of concern, the Deceased himself made no complaint, and appears to have been quite satisfied by the way in which the Plaintiff looked after him throughout the period of almost forty years of marriage. 36 It is appropriate here to record that the Deceased was an alcoholic, and that the cause of his death was recorded as renal failure; decompensated liver failure; long term alcohol abuse for more than fifteen years; dementia and cerebellar degeneration, secondary to alcoholic consumption, for more than five years. The Plaintiff gave evidence concerning the drinking habits of the Deceased. Clearly he would not have been the easiest person to live with. 37 The Deceased was admitted to the Royal Prince Alfred Hospital on a number of occasions. The medical records of that hospital were in evidence (Exhibit 1). Those medical records (which disclosed that the Deceased ran away from the hospital on occasion) do not support the allegations of the Defendant that the Plaintiff did not care for the Deceased. Further, they disclose that it was the Plaintiff - and not the Defendant - who was identified to the hospital as the Deceased's next of kin or the person to be notified. 38 It was the evidence of the Plaintiff that since her retirement from employment in 1989 she cared for the Deceased on a full-time basis. She described how, on account of the Deceased's drinking, such care became increasingly difficult. However, it was the evidence of the Plaintiff that she cooked his meals and did his washing, that she bathed or showered him two or three times a day, that she shaved him every two or three days, that she dressed him after he had had a bath or shower. The most substantial criticism directed against the manner in which the Plaintiff cared for the Deceased seems to be that she allowed the Deceased (who had for a period of about fifteen years worked as a bus driver) to wear his old bus driver uniforms around the house. Evidence of witnesses on behalf of the Defendant (Mr Slobodnjak and Mrs Sandra Karadzic) establishes that the Deceased was always well dressed when he went out of the house. 39 I am not satisfied that any of the alleged grounds upon which the Defendant seeks to resist the claim of the Plaintiff has been established. (Although it is possible that allegations of the nature described by the Defendant may have been made by the Plaintiff, I am not satisfied that any such allegations, if made, were intended by the Plaintiff to be taken seriously. In fact, they were not taken seriously by anyone.) 40 Even if (and contrary to the conclusion which I have just expressed) any of those grounds were to be regarded as having been established, I do not consider that any of those grounds are sufficient to disentitle the Plaintiff from an order for provision to which I am satisfied she has otherwise established an entitlement. 41 In this latter regard, it must be appreciated that throughout the period of almost forty years of their marriage the Plaintiff was in employment from 1968 until 1989 (for almost the entirety of that period as a solderer with STC at Alexandria). Her earnings throughout that period of twenty-one years were expended upon household outgoings. She also contributed towards the purchase price of the Erskineville property from the joint savings of herself and the Deceased which they had brought from Germany. The retirement funds which the Plaintiff received at the conclusion of her employment in 1989 were used for the purchase of the land at Manyana Beach. The proceeds of sale of that land two years later were used to pay for extensions to the Erskineville house property. 42 The financial and physical contributions by the Plaintiff to the home and to the household expenses and maintenance are additional to and enhance the entitlement of the Plaintiff to provision flowing from her status as the widow of a marriage subsisting for almost forty years, who without such provision will be left homeless and virtually destitute. It is appropriate here to record that the Plaintiff was not cross-examined upon her present financial and material circumstances. 43 Although, in the light of my foregoing conclusions, it may be unnecessary for me to do so, nevertheless I consider it appropriate that I should record that where the uncorroborated evidence of the Defendant was contradicted by the uncorroborated evidence of the Plaintiff, I preferred the evidence of the Plaintiff. In this regard, it is relevant to refer to a conversation which took place between the Plaintiff and the Defendant some time after December 1997 (that is, after the Deceased had executed his last will), and to the Defendant's version of that conversation which is set forth in paragraph 72 of her affidavit of 11 April 2000. 44 Upon that version, the Plaintiff in the course of that conversation expressed concern that the Defendant was attempting to take the Plaintiff's home from her. The Defendant's response included the statement, "Besides no one is going to take your house [a]way!". 45 In the light of the Defendant's knowledge of the contents of the Deceased's will made on 29 August 1977 and in the light of the present attitude of the Defendant in opposing the claim of the Plaintiff, that statement by the Defendant that "no one is going to take your house [a]way" can only be treated as a deliberate lie. 46 I did not understand it to be part of the case for the Defendant that she was asserting a competing claim upon the testamentary bounty of the Deceased which would have the effect of defeating, or reducing, the claim of the Plaintiff. 47 If, however, contrary to my foregoing understanding, it is asserted that the Defendant has a competing claim upon the testamentary bounty of the Deceased, it is appropriate that I should refer, at least in summary, to the financial and material circumstances of the Defendant. 48 The Defendant is presently aged forty-five. She has been married and divorced. She has an adult daughter, Amanda, who is now aged twenty-four. Details of the Defendant's financial and material circumstances are set forth in paragraph 86 and 87 of her affidavit sworn on 11 April 2000. 49 The Defendant owns a house property situate at and known as 33 Beresford Avenue, Croydon Park (to which she attributes an estimated value of $300,000). That house property is subject to a mortgage upon which an amount of $100,000 is outstanding. She owns a motor vehicle (to which a value of $5,000 is attributed), and personal effects (to which a value of $5,000 is attributed). 50 The Defendant, who suffered injuries in a motor vehicle accident in Croatia about eight years ago is presently on leave without pay from her employment with Centrelink, where she has a position as a bilingual officer (dealing with enquires from Croatian people concerning Social Security benefits provided by Centrelink). The Defendant's present weekly income is a disability pension of $175. Her daughter Amanda resides with the Defendant in the Croydon Park residence. Amanda is in full time employment, and she gives some financial assistance to the Plaintiff, as well as helping with the purchase of food and the payment of telephone, electricity and gas accounts, and the home mortgage payments. 51 I have already referred to the fact that if the Plaintiff is required to leave the Erskineville house she will have nowhere else to live. The Defendant is secure in her accommodation at Croydon Park. 52 I do not consider that any claim which the Defendant might have upon the estate of the Deceased in competition to that of the Plaintiff is such as would defeat, or reduce, the claim of the Plaintiff. 53 The Plaintiff in her evidence stated that her health was reasonable for her age, presently sixty-seven, but also stated that she has suffered from blood pressure, cardiac conditions, and breast cancer. (It was whilst she was receiving treatment for that last condition as a patient in the Royal Prince Alfred Hospital in August 1997 that the Deceased made the will which is the subject of the present proceedings.) The Plaintiff expressed a desire to continue to reside in the Erskineville property whilst her health remained in its present condition. She said that if her health deteriorated she would like to be able to sell the house, so that she could then purchase accommodation in a retirement village or nursing home. 54 I have no hesitation in expressing my conclusion that the Plaintiff should receive the entirety of the estate of the Deceased. 55 Normally an executor is entitled to recover out of the estate of the testator the costs incurred by the executor in resisting the claim of the applicant and in upholding the terms of the will. In the instant case, however, the proceedings were conducted as adversarial proceedings between the Plaintiff, who asserted that she was entitled to the entirety of the estate, and the Defendant, who asserted that the Plaintiff should receive nothing and that the entirety of the estate should pass to the Defendant. In the event, the Plaintiff has been totally successful in her claim, and the Defendant has been totally unsuccessful. 56 In those circumstances, therefore, I consider it appropriate that the Defendant should pay the costs of the Plaintiff of these proceedings. 57 I make the following orders:

(1). I order that the Plaintiff receive the entirety of the estate of the late Franco Bukovac ("the Deceased") absolutely.

(2). I order that the Defendant pay the costs of the Plaintiff of the proceedings.

Last Modified: 05/25/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.