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Leary v NSW Trustee and Guardian

Leary v NSW Trustee and Guardian

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Case Copied 23 August 2017 64 min read

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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 391
Category: Principal judgment
Parties: John Justin Goyen Leary (Plaintiff)
NSW Trustee and Guardian (Defendant)
Representation:
Counsel:
RD Wilson SC (Plaintiff)
GJ Smith (Defendant)
Solicitors:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1113
Decision Date: 23 August 2017

CaseChat Overview and Summary

The case before the court involved an application for a family provision order by Leary, the daughter of the deceased, against the executor of her father’s estate, who was also the trustee and guardian of New South Wales. The dispute arose from the terms of the deceased's will, which did not provide adequately for Leary and her siblings, leading to their application for a family provision order under the Succession Act 2006 (NSW). The court was tasked with determining whether the estate should be redistributed to ensure fair provision for the applicant.

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