Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Chisak v Presot [2022] NSWCA 100 Hearing dates: 25 March 2022 Date of orders: 21 June 2022 Decision date: 21 June 2022 Before: Macfarlan JA at [1];
Gleeson JA at [2];
White JA at [3]Decision: Appeal dismissed with costs
Catchwords: SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval
SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly or partly dependent upon deceased at any particular time – Whether adequate provision had been made for appellant’s education, maintenance and advancement in life
Legislation Cited: Administration and Probate Act 1958 (Vic), s 91
Family Provision Act 1982 (NSW), s 6
Succession Act 2006 (NSW), ss 57, 59
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Clinch v Swift (Supreme Court, Young J, 13 October 1986, unreported)
Golosky v Golosky [1993] NSWCA 111
House v The King (1936) 55 CLR 499
Leahey v Trescowthick [1999] VSC 409
McKenzie v Baddeley [1991] NSWCA 197
Petrohilos v Hunter (1991) 25 NSWLR 343
Shaw v Lambert (Supreme Court, Young J, 9 October 1987, unreported)
Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223
Category: Principal judgment Parties: Ivy Hope Chisak (Appellant)
Emanuela Presot (First Respondent)
Adelina Presot (Second Respondent)Representation: Counsel:
Solicitors:
R D Wilson with V Chan (Appellant)
J Lucy (Respondents)
Fox & Staniland Lawyers (Appellant)
Berala Law Group (Respondents)
File Number(s): 2021/181818 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 27 May 2021
- Before:
- Hallen J
- File Number(s):
- 2018/27413
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, Ivy Chisak, challenged the validity of a will signed on 26 April 2017 by the late Lily Savransky who died on 8 September 2017 aged 87. The deceased was the appellant’s grandmother.
By the deceased’s earlier will of 2009, the deceased gave each of her executors a legacy of $7,500 and gave a legacy of $5,000 each to two other friends. She left the residue of her estate to the appellant upon attaining the age of 25.
The deceased’s will of 26 April 2017 revoked the 2009 will. The deceased left the whole of her estate to Emanuela Presot, Adelina Presot, Linda Presot, Anna Savateev and the appellant in equal shares as tenants in common.
The appellant sought a grant of probate in solemn form of the will made on 3 June 2009. She sought revocation of a grant of probate in common form of the 2017 will made on 15 November 2017.
The primary judge, Hallen J, held that the deceased did not lack testamentary capacity in relation…
Continue reading Chisak v Presot
Sign in free to access the full text
- AGLC
- Chisak v Presot [2022] NSWCA 100
- Case
- [2022] NSWCA 100
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the deceased possessed the requisite testamentary capacity and knowledge and approval of the will, and alternatively, whether Ms Chisak was an eligible person to make a family provision claim under the *Succession Act 2006* (NSW). This eligibility hinged on whether she was wholly or partly dependent on the deceased and whether adequate provision had been made for her education, maintenance, and advancement in life.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court found that the evidence did not establish a lack of testamentary capacity or knowledge and approval of the will. Furthermore, the Court determined that Ms Chisak was not an eligible person for a family provision order, as she had not demonstrated sufficient dependence on the deceased or that inadequate provision had been made for her needs. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.