Supreme Court
New South Wales
Medium Neutral Citation: Leary v NSW Trustee and Guardian [2017] NSWSC 1113 Hearing dates: 18 and 19 May 2017 Decision date: 23 August 2017 Before: Ward CJ in Eq Decision: 1. Dismiss the plaintiff’s summons.
2. Direct the parties to serve brief written submissions as to costs, not exceeding 3 pages in length, within 14 days.
3. Direct the plaintiff (subject to any claim by him for privilege against self-incrimination, to be supported by a confidential affidavit deposed to by him and served on the defendant and by email to Ward CJ in Eq’s associate within 14 days) to notify CentreLink in writing within 14 days of the matters disclosed in his 15 May 2017 affidavit as to his assets/income over the period 2013-2017.Catchwords: SUCCESSION – family provision orders – failure of applicant to make full and frank disclosure of circumstances Legislation Cited: Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW), ss 57, 59, 60(1), 60(2)Cases Cited: Ahmad v Ahmad [2002] NSWSC 579
Alquist v ANZ Executors & Trustees Co [2004] NSWSC 1116
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bondy v Vavros (Supreme Court (NSW), Young J, 29 August 1988, unrep)
Carroll v Cowburn [2003] NSWSC 248
Close v Close [2001] NSWSC 668
Collings v Vakas [2006] NSWSC 393
Foye v Foye [2008] NSWSC 1305
Fulton v Fulton [2014] NSWSC 619
Hampson v Hampson [2010] NSWCA 359
Hogan v Hogan [2013] NSWSC 1405
Howarth v Reed (Supreme Court (NSW), 15 April 1991, unrep)
Life v Hall [2016] NSWSC 316
Lowe v Lowe [2014] NSWSC 371
Mayfield v Public Trustee [2009] NSWSC 330
McLean v Public Trustee [2001] NSWSC 970
Poole v Barrow [2014] VSC 576
Re Estate of the late Anthony Marras [2014] NSWSC 915
Re Will of Gilbert (1946) 46 SR (NSW) 318
Simpson v Hodges [2007] NSWSC 1230
Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40
Singh v Singh [2015] NSWSC 1457
Stares v Public Trustee [2005] NSWSC 37
Stern v Sekers [2010] NSWSC 59
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Wilson v Vine [2003] NSWSC 341
Young v Outtrim [2011] NSWSC 391Category: Principal judgment Parties: John Justin Goyen Leary (Plaintiff)
NSW Trustee and Guardian (Defendant)Representation: Counsel:
Solicitors:
RD Wilson SC (Plaintiff)
GJ Smith (Defendant)
L Rundle & Co (Plaintiff)
Teece Hodgson & Ward (Defendant)
File Number(s): 2015/00205597 Publication restriction: Nil
Judgment
-
HER HONOUR: This matter involves an application by the plaintiff (John Justin Goyen Leary) for provision out of the estate of his deceased mother (Colleen Margaret Pidcock), who died on 21 August 2014 aged 74. The deceased was survived by her second husband, John Pidcock, who died about 6 months later in January 2015. Probate was granted to the NSW Trustee and Guardian on 23 March 2015 of the deceased’s last will and testament made on 11 July 2013.
Background
-
The plaintiff, aged 49, is the youngest of the deceased’s…
Keep reading for free
Create a free CaseChat account to read Leary v NSW Trustee and Guardian and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] NSWSC 1113
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the executor had acted in accordance with the requirements of the Succession Act, specifically whether the applicant had made full and frank disclosure of her circumstances, including her financial situation and the extent of any support received from the deceased. The court had to assess whether the applicant's failure to disclose all relevant information justified the refusal of the family provision order.
In its decision, the court found that Leary had not made a full and frank disclosure of her circumstances. The applicant had failed to disclose certain financial details and ongoing support from the deceased, which were material to the court's assessment of her need for provision from the estate. The court held that this lack of transparency undermined the applicant's credibility and the fairness of the application process. Consequently, the court declined to make a family provision order in Leary's favour.
The court ordered that the application for a family provision order be dismissed. The executor was instructed to proceed with distributing the estate according to the terms of the will, without any adjustment for Leary. The court emphasised the importance of full and frank disclosure in family provision applications, underscoring that such transparency is essential for the integrity of the legal process.
Orders
Orders of the court
Full text does not contain this section.
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.