Piercy v Douras

Case [2019] NSWSC 1013


Supreme Court


New South Wales

Medium Neutral Citation: Piercy v Douras [2019] NSWSC 1013
Hearing dates: 15 - 17 April 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction:Equity - Family Provision List
Before: Henry J
Decision:

(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
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Family Law Act 1975 (Cth), s 90
Succession Act 2006 (NSW), ss 59, 60, 100
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.20
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Carusi-Lees v Carusi [2017] NSWSC 590
Chan v Chan [2006] NSWCA 222
Foley v Ellis [2008] NSWCA 288
Ford v Simes [2009] NSWCA 351
Gorton v Parks (1989) 17 NSWLR 1
Hastings v Hastings [2010] NSWCA 197
Kleinig v Neal (No 2) (1981) 2 NSWLR 532
MacGregor v MacGregor [2003] WASC 169
Marks v Marks [2003] WASCA 297
McCosker v McCosker (1957) 97 CLR 566
McDonald v O’Connor [2019] NSWSC 261
Oldereid v Chan [2013] NSWSC 434
Parke v Parke [2015] FCCA 1692
Philpott v Pantos [2018] NSWSC 852
Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9
Sgro v Thompson [2017] NSWCA 326
Sherborne Estate (No 2): Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor (2005) 65 NSWLR 268; [2005] NSWSC 1003
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Steinmetz v Shannon [2019] NSWCA 114
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2015] NSWCA 269
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Worsley v Solomon [2008] NSWSC 444
Category:Principal judgment
Parties: Joshua Piercy (Plaintiff)
Adrienne Douras (Defendant)
Representation:

Counsel:
E Windsor (Plaintiff)
L Ellison SC (Defendant)

  Solicitors:
Dakin Law (Plaintiff)
Global Legal Solutions (Defendant)
File Number(s): 2016/00351817

Judgment

Introduction

  1. 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 (the deceased), who died on 1 January 2016. The plaintiff is the only child of the deceased.

  2. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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