Legal Research
Cases
Plaska v Coffey

Plaska v Coffey

Case [2014] NSWSC 1930 10 December 2014

Family Provision

Succession Act 2006 (NSW)

Adequate Provision

Eligible Person

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Plaska v Coffey [2014] NSWSC 1930
Hearing dates: 23 September 2014
Date of orders: 10 December 2014
Decision date: 10 December 2014
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1)   The plaintiff’s summons is dismissed.
(2) The plaintiff is to bear his own costs of the proceedings.
(3)   The defendant’s costs of the proceedings are to be paid out of the estate of the deceased on the indemnity basis
(4)    The parties are invited to make submissions as to what, if any, order should be made against the plaintiff in respect of the defendant’s costs
(5)   Exhibits may be returned in accordance with the Rules

Catchwords: SUCCESSION – family provision – application under s 59 Succession Act 2006 (NSW) – whether adequate provision made for applicant – adult applicant – applicant grandchild of deceased – applicant an eligible person in this case – estate inadequate to justify family provision order in favour of applicant – claim dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Succession Act 2006 (NSW) ss 3, 57(1)(e) 59
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allen v Allen [2012] NSWSC 140
Alexander v Jansson [2010] NSWCA 176
Aubrey v Kain [2014] NSWSC 15
Butler v Morris [2012] NSWSC 748
Grundel v Registrar-General (1990) 5 BPR 11,217
Harrisson v Skinner [2013] NSWSC 736
McCosker v McCosker (1957) 97 CLR 566
Underwood v Gaudron [2014] NSWSC 1055
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
West v Mann [2013] NSWSC 1852
Category: Principal judgment
Parties: Elvis Tom Plaska (plaintiff)
Maria Coffey (defendant)
Representation:
Counsel: Plaintiff (self-represented)
L Ellison SC/ A Hawkins (defendant)
Solicitors: Plaintiff (self-represented)
Marsdens Law Group (defendant)

File Number(s): 2013/284572
Publication restriction: None

Judgment

Introduction

By summons filed on 20 September 2013 the plaintiff, Elvis Tom Plaska, who uses the name Tom Plaska, seeks an order that provision be made for his maintenance, education and advancement in life, pursuant to s 59 of the Succession Act 2006(NSW) (the “Act”) from the estate of the late Telka Plaska.
The deceased, Mrs Plaska, was born on 1 October 1923 and died at the age of 88 on 26 September 2012. Mrs Plaska was Mr Plaska’s grandmother.
The defendant, Maria Coffey, is Mrs Plaska’s daughter, and the executor of her estate.
Mrs Coffey accepts that Mr Plaska is an eligible person for the purposes of s 57(1)(e) of the Act, as he is a grandchild of Mrs Plaska, and was for most of his life up to the time of Mrs Plaska’s death a member of her household and partly dependent upon her.

Mrs Plaska’s will

Probate was granted to Mrs Coffey on 26 August 2013 of the will made by Mrs Plaska on 25 March 1997.
By her will Mrs Plaska left her estate in equal shares to Mr Plaska, Mrs Coffey, and Mrs Coffey’s two sons, Andrew Coffey and David Coffey.

Mrs Plaska’s estate

The only asset in Mrs Plaska’s estate…

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.

Continue reading Plaska v Coffey

Details

AGLC: Plaska v Coffey [2014] NSWSC 1930
Case: [2014] NSWSC 1930
Decision Date: 10 December 2014

CaseChat Overview and Summary

The case of Plaska v Coffey involved a dispute over family provision under section 59 of the Succession Act 2006 (NSW). The applicant, who was a grandchild of the deceased, sought adequate provision from the estate. The court was required to determine whether the estate was inadequate to provide for the applicant, given that the applicant was an eligible person under the Act. The central legal issues revolved around the definition of "adequate provision" and the criteria that must be met to grant a family provision order.

The court examined the specific provisions of the Succession Act and the relevant case law to assess the sufficiency of the estate. It considered the financial status of the deceased, the nature and extent of the applicant’s relationship with the deceased, and the applicant's needs and resources. The court found that, while the applicant was indeed an eligible person under the Act, the estate was not inadequate to the extent that it warranted a family provision order in favour of the applicant. The court concluded that the deceased had made adequate provision for the applicant, taking into account all relevant factors.

As a result of its findings, the court dismissed the applicant's claim for a family provision order. The reasoning was based on the comprehensive evaluation of the deceased's estate and the applicant's circumstances. The court held that the estate was sufficient to meet the needs of the applicant, and thus, no further provision was necessary. This decision underscored the importance of detailed consideration of each case's unique facts and the application of statutory provisions and precedent.

Orders