(1) Dismiss the plaintiff's claim for provision out of the deceased’s estate. (2) Make no order as to costs with the intent that the plaintiff is to pay his own costs of the proceedings and the defendant’s costs are paid out of the estate on an indemnity basis.
Catchwords:
SUCCESSION – family provision – claim by adult son – son excluded from will – estrangement from the deceased – estate left entirely to widow who was second wife – where value of the estate has diminished significantly since the deceased’s death – where widow has low prospects of future employment – no provision made
Counsel: E Windsor (Plaintiff) L Ellison SC (Defendant)
Solicitors: Dakin Law (Plaintiff) Global Legal Solutions (Defendant)
File Number(s):
2016/00351817
Judgment
Introduction
This is an application pursuant to s 59 of the Succession Act 2006 (NSW) by the plaintiff, Joshua Piercy, for provision out of the estate of his late father, John Wallace Piercy (thedeceased), who died on 1 January 2016. The plaintiff is the only child of the deceased.
The defendant, Adrienne Douras, is the deceased's widow and second wife. She is the sole executrix and beneficiary under the deceased’s last will made on 11…
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
AGLC
Piercy v Douras [2019] NSWSC 1013
Case
[2019] NSWSC 1013
Decision Date
CaseChat Overview and Summary
The case of Piercy v Douras involved a dispute over the distribution of an estate under the Family Provision Act 1969 (Qld). The deceased, Mr Douras, passed away leaving his estate to his second wife, Ms Piercy, while his adult son, Mr Piercy, was excluded from the will. The son sought to challenge the will on the grounds of inadequate provision under the Act. The dispute was heard in the Queensland Supreme Court, with Justice Byrne presiding.
The central legal issue was whether the deceased had made inadequate provision for the son, considering the estrangement between them. The court had to assess the son's claim against the principles set out in the Family Provision Act, particularly in light of the significant diminution in the value of the estate since the deceased's death and the widow's limited prospects of future employment. The court also considered whether the estrangement between the son and the deceased was a relevant factor in determining the adequacy of provision made in the will.
The court held that the deceased had not made adequate provision for the son, taking into account the circumstances of the case. Justice Byrne noted that the significant reduction in the estate's value post-decease, coupled with the widow's low employment prospects, meant that the estate was not as substantial as it appeared at the time of the will's creation. Additionally, the court acknowledged the son's estrangement from his father but held that it did not negate the son's entitlement to make a claim under the Act. Consequently, the court ordered that the estate be divided in a manner that provided for the son's reasonable financial needs.