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Will Contested By Daughter of Deceased: Kocini v Kambanros

In the 2022 decision of Kocini v Kambanros the Supreme Court of South Australia considered whether a claimant who was the adult daughter of the deceased should receive further provision from her mother’s estate, despite having been left a substantial share of the estate. This article summarises that decision and the principles it considered.

Kocini v Kambanros [2022] SASC 25

The deceased in Kocini v Kambanros died on 19 April 2017. She was survived by her four adult children. The deceased left two wills, one of which dealt with her assets in Greece while the other dealt with her assets in South Australia.

In Greece, the deceased owned parcels of land. Her will tried to treat her four surviving children equally by making individual gifts of land and joint gifts of land to her children.

The applicant received an equal share with her three siblings of the following:

  • A stone house in Pyrgos
  • A block of land in Niaria, Pyrgos
  • A block of land at Siafia- Coulometry Elaicohri

At the time of trial, the applicant’s quarter share of the Greek assets was $193,000. In addition, the deceased gave two parcels of land to the applicant outright. The value of this land was in dispute during the trial.

The deceased’s Australian will left nothing to the applicant. The Australian estate was comprised of a property valued at $630,000, all of which was left to one son of the deceased.

There was a dispute about the valuations of the assets in Greece. The court formed the view that the total value of land gifted to the applicant in Greece and the value of the land gifted in the will was approximately $350,000.

Legal principles considered in Kocini v Kambanros

In the matter of Kocini v Kambanros, the court set out the two-step test to be adopted when determining a family provision claim. The first step is considering whether the applicant has been left without adequate provision. If the answer to the first question is yes, the second step is considering what would be the appropriate provision.

The court considered the meaning of the words “adequate” and “proper” and confirmed they are relative. The word “proper” connotes something different from the word “adequate”. It connotes an ethical position as to what allowances should be made. Adequate provision for proper maintenance is not limited to providing what is sufficient for basic subsistence. “Proper” maintenance is maintenance the applicant ought to have in the circumstances, not what he/she needs.

The court must determine whether the person has been left without adequate provision at the date of death. The provision that a court may properly make is that which a just and wise testator would have thought it his or her moral duty to make had he or she been fully aware of all of the relevant circumstances.

Family provision legislation is not intended to deal with notions of fairness or equality.

The Applicant’s Claim

The applicant in Kocini v Kambanros claimed the Australian estate should be distributed equally.

The court considered that before discretion can arise to vary the terms of a deceased’s will, the applicant must satisfy whether she has been left without adequate provision for her proper maintenance, education and advancement in life.

To determine that question, the court considered the applicant’s financial position, which was in summary was as follows:

  • A property jointly with her husband valued at $465,000 (no mortgage)
  • An investment property valued at $300,000
  • A property jointly owned with her son valued at $400,000 (mortgage of $7,000)
  • A property valued at $380,000 (no mortgage)
  • Savings of $135,000 (husband’s name)
  • Taxi licence of $50,000

There was a dispute about the ownership of two of the properties. The applicant claimed she held these in trust for her son. The court did not find these properties were held in trust.

The applicant’s total financial position (jointly or solely) was $1,850,000 according to the Valuer-General. In addition, the applicant was to receive $350,000 in land in Greece.

The decision Kocini v Kambanros

The court considered a comment by Ormiston J in the 1999 decision of Collicoat v McMillan (1999) 2 VR 803 at 47 which stated:

“Those who are capable of supporting themselves comfortably, and are likely to be able to do so for the rest of their lives, will find it difficult to show any breach of moral obligation to make adequate provision for proper maintenance and support”.

This comment was applied to the applicant’s case. The court found the applicant was able to support herself comfortably in light of her financial position and there was no reason that could not continue into the future. The court also noted the applicant had received a one-quarter share of her father’s estate.

The court was not satisfied that the deceased had failed to make adequate provision for the applicant and dismissed the claim. This meant that no provision was ordered for her proper maintenance and support.

The case highlights that it is essential for an applicant to establish that they have a financial need when claiming adequate provision for their proper maintenance and support out of a deceased estate.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Luisa Di Bernardo

This article was written by Luisa Di Bernardo

Luisa is the Accredited Specialist in contested estates and the Melbourne team leader in the contested estates division at Armstrong Legal. Luisa is an experienced wills and estates lawyer specialising in estate litigation. She has represented clients in family provision claims, contested probates, estate administration, probate applications and superannuation death benefit challenges. Her work has taken her to Victoria, New...

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