Life interest in properties inadequate provision for widow

In the matter of Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396 the Supreme Court of New South Wales allowed a claim by the deceased’s widow but disallowed a claim by one of his adult daughters.

The deceased died on 26 November 2014, aged 73. He was survived by his widow, Mrs Sitki, who was his third wife.  They were married for 30 years.  He was also survived by two adult daughters born to his first wife.

The deceased made a Will on 6 November 2014 granting a life interest in the 3 properties he owned, including the principal place of residence of Mrs Sitki and himself, to Mrs Sitki and upon her death to his youngest daughter, Ilay. The deceased granted a life interest in properties he owned in Cyprus to Mrs Sitki and upon her death to his eldest daughter, Hatice.  The deceased left his interest in his later father’s estate to Ilay on trust for his grandchildren.  The residue of the estate was divided equally between Mrs Sitki and his two daughters.

Mrs Sitki and Hatice claimed the provisions made for them were inadequate. Ilay did not make a claim.

Effect could not be given to the deceased’s bequests of the Cyprus properties nor his interest in his late father’s Will due to Cypriot law. That property was to be divided as to 1/6 to Mrs Sitki and the balance equally between his 2 daughters.

It was common ground that the provision made for Mrs Sitki was not adequate.

Justice Stevenson ordered that the property in which Mrs Sitki resided for her entire marriage be transferred to her absolutely and that she receive further provision, to cover her current expenses and further expenditure, to be paid from the sale of one of the remaining properties. Justice Stevenson stated that Mrs Sitki should receive a further $100,000 for contingencies.  Submissions were to be made as to the appropriate amount to be received by Mrs Sitki.

Justice Stevenson did not make provision for Hatice. He was not persuaded that the provision she received from the estate was inadequate.  His honour was “comfortably satisfied that the deceased gave careful consideration to his decision to prefer Ilay to Hatice. .. . it is not the Court’s role on an application like this to achieve some kind of “fair” disposition of the deceased’s estate.”

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