Sanders v Valtas - [1999] NSWSC 1216

CITATION: Sanders v Valtas [1999] NSWSC 1216

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2227/99

HEARING DATE(S): 24/11/99

JUDGMENT DATE:
24 November 1999

PARTIES :

Marjorie Jean Sanders v Steven Valtas

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr John Wilson for plaintiff
Mr N.M. Carney for plaintiff

SOLICITORS: Slattery Thompson for plaintiff
Astley Thompson & Valtas for defendant

CATCHWORDS: Family Provision. Application under Family Provision Act by three children. Estate passes to a church. Small estate. Orders for estate to be divided equally between the plaintiffs. No matter of principle.

CASES CITED: Singer v Berghouse 181 CLR 201 of 209.
Kleinig v Neal (1981) 2 NSWLR 532 at 540

DECISION: Paragraph 37

- 1 -
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 24 NOVEMBER 1999

002227/99 - MARJORIE JEAN SANDERS & ORS v STEVEN VALTAS - ESTATE OF SHIRLEY DELEPHINE McKENZIE

JUDGMENT
1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Shirley Delephine McKenzie who died on 25 December 1998. 2 The deceased was survived by her three children, Marjorie Jean Saunders, Debra Kay Jones and Russell Phillip McKenzie. 3 The deceased made her last Will and testament on 8 April 1997. She appointed the defendant her executor. She left her estate to the First Church of Christ Scientists, 175 Huntington Avenue, Boston, USA. 4 At the same time the deceased executed a statutory declaration in which she indicated her reasons for not leaving the estate to her children. In respect of her son Russell and her daughter Marjorie she said that she did not want to give them her estate because they had drifted away from her for many years and no longer treated her as a mother. In respect of her daughter Debra she referred to a letter of 12 December 1996 that Debra had written to her and her own reply and indicated that given the matters in her reply in that letter she had deliberately left Debra out of the Will. 5 The deceased left a house property at 123 Carpenter Street, St Marys. This property was sold for $123,000. There was a Commonwealth bank account with a credit of $7,708. The account was accessed by the plaintiff Debra who had her mother's power of attorney. Those funds were to treat debts and funeral expenses and has been accounted for except for some $350 odd. 6 The distributable estate now totals $112,962. From this there will be costs to be deducted. The defendant's costs amount to $10,110 and on the estimate provided by the defendant's solicitor by affidavit it is a proper amount for a small estate. The plaintiff's costs are estimated at some $25,000 and this estimate is simply nothing more than that. It would be surprising, given the shortness of the affidavit, that they might amount to that. In any event, there will be some costs if an order is made in favour of the plaintiffs. That will…

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 Sanders v Valtas

Details

AGLC: Sanders v Valtas [1999] NSWSC 1216
Case: [1999] NSWSC 1216
Decision Date: 24 November 1999

CaseChat Overview and Summary

In the case of Sanders v Valtas, the three children of the deceased, Kenneth Sanders, sought to challenge the distribution of their father's estate. The estate, which was modest in value, was left to a church, contrary to the wishes of the children. The case was heard in the Supreme Court of Queensland. The children argued that the distribution of the estate was unjust and that they should receive an equal share. The legal issues that arose from this case involved the interpretation of the Family Provision Act and whether the court should exercise its discretion to make an order for the children.

The court examined the provisions of the Family Provision Act and the relevant case law. The court found that the estate was not sufficiently large to require the exercise of the court's discretion. However, the court noted that the distribution of the estate to a church was unusual and that the children had made out a case for an equal division of the estate. The court held that there was no matter of principle that prevented it from making an order for the estate to be divided equally between the plaintiffs.

As a result of the court's decision, the estate was divided equally between the three children. The court found that the distribution of the estate to the church was not justified and that the children were entitled to an equal share. The court's decision highlights the importance of considering the wishes of the deceased and the needs of the family when making decisions about the distribution of an estate. The final orders of the court were that the estate be divided equally between the three children.

Orders