Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563 – 11 May 2022

Last year, Hallen J dismissed a summons brought by a Plaintiff who made a family provision claim on her father’s estate after only being left a sum of $100, despite her two sibling receiving a significantly larger amount each.

Nikolaos Tsiokanis (the Deceased) passed away on 28 October 2019 and was survived by his three children George Tsiokanis (the First Defendant), Constantina Meli (the Second Defendant) and Barbara Georgopoulos (the Plaintiff).

The Deceased’s will did not receive probate, because the Plaintiff had lodged a caveat. The Plaintiff then lodged a family provision claim on the Deceased’s estate, as being his daughter made her an “eligible person” to do so.

The Deceased’s Will

In his will, the Deceased
left his three properties in Greece and the rest and residual of his estate to First and Second Defendants in equal shares. The residual of The Deceased’s estate comprised of half a share of Sydney property (valued at $340,000) that he co-owned with the First Defendant and a bank account containing $4,402.

However, he left his daughter, the Plaintiff, a share of only $100. The Deceased provided seventeen detailed reasons as to why he only left the Plaintiff $100. The following are some of the main reasons that the Court discussed.

1.     The Plaintiff and her two children moved in with the Deceased for a period of fourteen years. The Deceased had paid $350,000 on renovations to accommodate the Plaintiff and her two children and Plaintiff did not contribute to bills, rent or board during this time.

2.     The Plaintiff went on two overseas trips to Greece, which the Deceased paid for. The Plaintiff did not repay the Deceased for either of these trips.

3.     The Plaintiff was given approximately one million drachmas (₯) (the former currency of Greece, valued at approximately $4,600 AUD) by the Deceased’s brother for her overseas trips. This was rent money from one of the properties in Greece that the Deceased owned that was being held by the Deceased’s brother.

4.     The Deceased alleged in his will that the Plaintiff had thrown fruit and vegetables at him multiple times from 2003 onwards. The Court accepted this allegation.

5.     The Plaintiff had damaged the Defendant’s Sydney property by deliberately flooding the property, breaking the washing machine and the refrigerator to prevent the Deceased from selling this property. The Court accepted this allegation.

6.     The Plaintiff threatened to physically harm the Deceased until her obtained an Apprehended Violence Order against the Plaintiff in 2007.  The Court accepted these allegations.

7.     The Plaintiff displayed a lack of respect and concern for the Deceased and his health, causing him great anxiety and stress throughout his life. After the Plaintiff had challenged this allegation, the Court relied on an affidavit sworn by the Deceased a year prior to signing his will and additional evidence offered by the First Defendant. The Court then accepted these allegations.

 

The Deceased’s Affidavit

The Deceased also provided a series of additional reasons for only leaving the Plaintiff a $100 share of his estate in this earlier affidavit. These reasons related to the time that the Plaintiff, her partner and her two children lived with the Deceased in his Sydney property. the Deceased’s affidavit provided instances of abusive comments that the Plaintiff had made to or about the First Defendant, generally causing stress and anxiety and one specific incident of the Plaintiff leaving the hot water running in the show and switching off the power to the refrigerator. The Court recognised that this affidavit was subject to the Deceased’s feelings, the Court accepted that the Plaintiff did create a sense of stress and anxiety to the Deceased.

The Plaintiff did not call her two children, who lived in this Sydney property at the time, to give evidence. The Court questioned this, as the Plaintiff’s children were living at the Sydney property at the time and were alleged to have been involved in certain aspects of causing the stress and anxiety to the Deceased. The Plaintiff’s counsel provided that they should have had the children as witnesses and provided no explanation as to why they were not.



The Plaintiff


The Plaintiff had alleged that the Deceased was a violent alcoholic. The First and Second Defendants refuted this claim and the Court accepted this.

In no particular order of priority, the Court will generally consider the following factors when determining the answer to the question of inadequacy of provision:

• the size of the estate,
• the totality of the relationship of the Plaintiff and the Deceased,
• the Plaintiff’s conduct, before, and after, the death of the Deceased,
• the age and capacities of other beneficiaries,
• the claim of each on the bounty of the Deceased, and
• the freedom of the Deceased to write his wills. (339)

Hallen J held that the Deceased was of sound mind and that the Deceased’s conduct and reasoning surrounding the drafting the Will were well thought out, articulate and rational. Through the Deceased’s Affidavit, Hallen J held that the Deceased managed his estate in a manner that reflected his relationship with the Plaintiff. Hallen J provided the following:

One asks rhetorically why should a parent leave anything more to an adult daughter who had treated him in the way that the Plaintiff did in this case and who, then, had no further contact with him over a long period?”


Hallen J dismissed the Plaintiff’s Summons and that the administration of the estate and notional estate of the deceased, be granted to the Defendants, only for the purposes of permitting the Plaintiff’s application for a family provision order to be dealt with.