Paradisis v Kekatos as executor of the estate of the Late John Paradisis

[2016] NSWSC 220

Supreme Court

New South Wales

Medium Neutral Citation:	Paradisis v Kekatos as executor of the estate of the Late John Paradisis [2016] NSWSC 220
Hearing dates:	08/03/2016
Date of orders:	08 March 2016
Decision date:	08 March 2016
Jurisdiction:	Equity - Family Provision List
Before:	McDougall J
Decision:	Plaintiff to have legacy of $150,000.00 and “Crisp” life estate to the extent of $700,000.00.
Catchwords:	SUCCESSION – Family Provision order sought – Plaintiff was spouse of the deceased for 28 years – Plaintiff was left only life estate in the matrimonial home – remainder of estate to be given to three children of deceased from former marriages – whether Plaintiff has been left without adequate provision for proper maintenance and advancement in life – provision to be made for Plaintiff by way of Crisp order and small capital sum
Cases Cited:	Milillo v Konnecke [2009] NSWCA 109
Category:	Principal judgment
Parties:	Kaliopi Paradisis (Plaintiff) Despina Kekatos as executor of the estate of the late John Paradisis (Defendant)
Representation:	Counsel: M R Lawson (Plaintiff) MF Galvin (Defendant)     Solicitors: C M Lawyers (Plaintiff) P J Ellis & Co (Defendant)
File Number(s):	2015/115113

Judgment   (EX TEMPORE – REVISED 8 MARCH 2016) (brief reasons)

1. HIS HONOUR: I start with the observation that the provision made by the will of the deceased for the plaintiff, his wife of long standing, was inadequate simply because that provision, as is common ground, ceases to have effect should she leave the matrimonial home for any reason.

2. The next point is that, bearing in mind the age of the plaintiff, it is likely that at some stage, for reasons of health, she will have to leave the home and at that point the provision will cease to have any impact for her benefit.

3. It therefore seems to me that the jurisdictional factor (if that is the correct description) has been satisfied.

4. When one turns to assess what should be done, there is the immediate necessity for the property to be sold so that, despite the plaintiff's wishes to remain there for as long as possible, she cannot do so.

5. I am deeply dissatisfied as to the plaintiff's disclosure of her assets, and I am not at all satisfied that even now the full picture is before the Court. But on the figures, even if she had squirrelled away everything that had been withdrawn, she could have no more than about $143,000 available to her. The reality I think, when one traces the flow of funds through the various accounts, is that she has significantly less than that. On the evidence I am unable to conclude that she has more than about $73,000 available to her.

6. There is a need to provide accommodation for her and to provide a fund which will act as some sort of buffer to assist her in her later years. I will defer the question of accommodation for the moment, but in terms of the fund, it does not seem to me to be appropriate to provide for some sort of annuity or some sort of income stream, because in either case there will be the difficulty of administration and the cost of administration.

7. In those circumstances, it seems to me, that in addition to whatever provision is to be made for accommodation the plaintiff should receive a legacy. When one turns to the question of accommodation, the plaintiff has expressed a desire, if she must move, to live in the area as close as possible to her community including her neighbours and her church.

8. Bearing in mind her background, and the absence of any challenge to that expressed desire, I accept that this is appropriate. I accept also that it is appropriate that, for as long as possible, the plaintiff should remain independent, or at least dependent only to the circumstances of community support facilities that I cannot but help know are available in most parts of this great city for elderly people. There are social as well personal values in that. It is likely that at some stage the plaintiff will need to move from independent living to hostel living, that is to say supported living, and it is possible that she may need to move from that to nursing care.

9. In those circumstances, as it seems to me, a form of interest that can accommodate those likely changes in her life is what the Court must consider. I take into mind also that there is no evidence of counterbalancing need on the part of the beneficiaries under the will.

10. Having said that, I do think that so far as is possible, whilst obeying the commands of the statute, recognition should be given to the wishes clearly expressed by the testator. Those wishes, paring things down to their essence, were that his widow should be looked after in her lifetime and that his children should have the property or the estate after her death.

11. I take into account also the evidence as to the cost of alternative accommodation, both of small home units, on the ground floor, in the area where the plaintiff presently lives that can suit her limited mobility, and in due course for hostel accommodation which appears also seems to be available in the general area.

12. I do not think that it is appropriate to attempt to pare back on the amount of the provision to be made and to take the risk that the benefit sought to be achieved by the order for such provision is effectively undone because it has been pared back too much.

13. On the other hand, I do take into account, in attempting to assess the amount of the pecuniary legacy to which I referred earlier, which is intended to operate as some sort of buffer that, as I have said, I am deeply dissatisfied with the plaintiff's disclosure of her financial situation.

14. It seems to me that a “Crisp” order will provide adequately for the plaintiff's needs in life whilst preserving the essential testamentary scheme that the testator clearly desired to take effect. When I refer to a Crisp order I refer to an order of the kind explained by the Court of Appeal in Milillo v Konnecke [2009] NSWCA 109 at [47], [48].

15. Considering the evidence of the likely cost of accommodation, I conclude that there should be a Crisp order and that it should have a monetary cap, in other words be for a monetary amount, of $700,000, and that in addition the plaintiff should have a legacy in the sum of $150,000 for her own use absolutely.

16. In that way, I hope, the plaintiff's changing circumstances in life can be met with a degree of support for exigencies which we all know may occur but which at present are no more than possibilities.

17. It would follow, after allowance for costs, that there would be of the order of $250,000 available for immediate distribution to the beneficiaries and of course the value then of the estate caught by Crisp order when the life estate falls in.

18. Despite my reservations as to costs for the reasons indicated in the course of argument earlier today, I do appreciate the role that the defendant has played in acting as an effective contradictor. It seems to me, subject to hearing from counsel, that the usual order as to costs should be made.

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