Scott v Scott

Case [2022] NSWCA 182


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Scott v Scott [2022] NSWCA 182
Hearing dates: 23 August 2022
Date of orders: 20 September 2022
Decision date: 20 September 2022
Before: Ward P at [1];
Meagher JA at [2];
Kirk JA at [91]
Decision:

Appeal dismissed with costs.

Catchwords:

SUCCESSION – family provision – claim by adult daughter for provision pursuant to Succession Act 2006 (NSW), s 59 – where deceased’s 2019 will left family home to appellant daughter and small legacy to respondent daughter – where testamentary statement purported to justify 2019 will – where primary judge found will and statement obtained by process of manipulation and sourced to appellant – where earlier will of deceased leaving one-third of estate to each child found to reflect deceased’s fair and considered testamentary judgment – whether primary judge erred in being satisfied that 2019 will did not make adequate provision for respondent’s proper advancement

Legislation Cited:

Family Provision Act 1982 (NSW), s 9(2)

Succession Act 2006 (NSW), ss 59(1)(c), 59(2), 60(2)

Cases Cited:

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Bassett v Bassett [2021] NSWCA 320

Browne v Dunn (1893) 6 R 67

DJ Singh v DH Singh [2018] NSWCA 30

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kuhl v Zurich Financial Services (2011) 243 CLR 361; [2011] HCA 11

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Sgro v Thompson [2017] NSWCA 326

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Taylor v Farrugia [2009] NSWSC 801

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Vukic v Luca Grbin; Estate of ZvonkoGrbin [2006] NSWSC 41

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Category:Principal judgment
Parties: Charlene Arnel Scott (Appellant)
Coralynne April Scott (Respondent)
Representation:

Counsel:
R Wilson SC with L Clarke (Appellant)
Dr C Birch SC with AF Stevens (Respondent)

Solicitors:

Ray Wehbe & Co (Appellant)
Dignan & Hanrahan (Respondent)
File Number(s): 2021/369585
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:

[2021] NSWSC 1619

Date of Decision:
13 December 2021
Before:
Parker J
File Number(s):
2020/215861

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant (Charlene) and respondent (Coralynne) are adult sisters, with one brother (Clifton Jnr). Their mother died in July 2019. By her will dated 16 May 2019, the deceased left the family home in Fairfield to Charlene and gifts of $40,000 to each of Coralynne and Clifton Jnr, with the residue to be divided equally between the three children. The deceased had taken her interest in the Fairfield property upon the death of her husband in 2016,…

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AGLC
Scott v Scott [2022] NSWCA 182
Case
[2022] NSWCA 182
Decision Date

CaseChat Overview and Summary

The dispute in *Scott v Scott* concerned a claim for provision from the deceased's estate by the respondent daughter, pursuant to section 59 of the *Succession Act 2006* (NSW). The appellant daughter was the beneficiary of the deceased's 2019 will, which left her the family home and a small legacy, while the respondent daughter received nothing under that will. An earlier will had provided for an equal division of the estate between the two daughters. The primary judge had found that the 2019 will and a related testamentary statement were the product of manipulation and influenced by the appellant. The appeal was heard by Ward P, Meagher and Kirk JJA.

The central legal issue before the Court of Appeal was whether the primary judge erred in being satisfied that the 2019 will did not make adequate provision for the respondent's proper advancement in life. This required the court to consider whether the primary judge's findings regarding the undue influence and manipulation surrounding the 2019 will were correct, and if so, whether the earlier will, which reflected a more equitable distribution, represented the deceased's true and considered testamentary intentions.

The Court of Appeal upheld the primary judge's findings. Their Honours reasoned that the evidence strongly supported the conclusion that the 2019 will and the accompanying statement were not the result of the deceased's free will but were procured through the appellant's manipulation. The earlier will, which provided for an equal distribution, was considered to be a more reliable reflection of the deceased's considered testamentary judgment. Consequently, the court found that the 2019 will did not make adequate provision for the respondent's proper advancement.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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