Legal Research
Cases
Scott v Scott

Scott v Scott

Case [2021] NSWSC 1619 13 December 2021

Family Provision

Advancement

Testamentary Capacity

Misrepresentation

Succession Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Scott v Scott [2021] NSWSC 1619
Hearing dates: 20, 21, 22 October 2021
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [356]-[362]

Catchwords:
SUCCESSION – family provision – application by adult child – advancement – deceased’s will left a small legacy of $40,000 to applicant – majority of the estate left to applicant’s sister, including former family home worth $780,000 – testamentary statement by deceased purported to justify will – statement procured by applicant’s sister and misrepresented merits and demerits of applicant and applicant’s sister – previous will giving applicant one-third share of estate – application successful

Legislation Cited:
Succession Act 2006 (NSW), ss 57, 59, 60, 70

Cases Cited:
Browne v Dunne (1893) 6 R 67
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Graham v Vukic [2020] NSWSC 1801
Kelly v Deluchi [2012] NSWSC 841
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
MacAlpine v MacAlpine [2020] NSWSC 824
McCosker v McCosker (1957) 97 CLR 566
Megerditchian v Khatchadourian [2019] NSWSC 1870
Megerditchian v Khatchadourian [2020] NSWCA 229
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan (2013) 85 NSWLR 253
Taylor v Farrugia [2009] NSWSC 801
Vukic v Luca Grbin; Estate of ZvonkoGrbin [2006] NSWSC 41
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169

Category: Principal judgment
Parties: Coralynne April Scott (Plaintiff)
Charlene Arnel Scott (Defendant)
Representation:
Counsel:
AF Stevens (Plaintiff)
L Clarke (Defendant)
Solicitors:
Dignan & Hanrahan (Plaintiff)
Ray Wehbe & Co (Defendant)

File Number(s): 2020/215861
Publication restriction: Nil

Judgment

This judgment arises out of an application for a family provision order under s 59 of the Succession Act 2006. Unless otherwise stated, statutory references in the judgment are to that Act.
The plaintiff claims provision from the estate of the late Coral Alveda Scott who died in July 2019 at the age of 89. For convenience, and without disrespect, I will refer to the members of the deceased’s family who come into this judgment by their given names.
The deceased was born in January 1930. In 1954 she married Clifton John Scott (“Clifton Snr”). Together they had three children: Coralynne April Scott (“Coralynne”), born in April 1956; Clifton John Scott (“Clifton Jnr”), born March 1960; and Charlene Arnel Scott (“Charlene”), born in September 1965. Clifton Snr died in 2016.

Issues for determination

The deceased’s last will was made in May 2019, about two months before her death. By the will the deceased appointed Charlene as her sole executor and trustee. Probate was granted to Charlene in October 2019. The will was prepared by a solicitor, Mr Ray Wehbe, whose firm, Ray Wehbe & Co, is at Parramatta. He also acted for Charlene in the administration of the estate.
The deceased’s main asset was a house at Fairfield which had been the family home. Of her other assets, the most important was…

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 Scott v Scott

Details

AGLC: Scott v Scott [2021] NSWSC 1619
Case: [2021] NSWSC 1619
Decision Date: 13 December 2021

CaseChat Overview and Summary

In the Family Court of Australia, Scott v Scott involved a dispute regarding family provision under the Succession Act 2006 (NSW). The applicant, an adult child, sought equitable distribution of the deceased's estate, arguing that the will did not make adequate provision for their maintenance, education, and advancement. The deceased's will left a legacy of $40,000 to the applicant, while the majority of the estate, including the family home valued at $780,000, was bequeathed to the applicant's sister. The applicant contended that the will was influenced by a testamentary statement procured by the sister, which misrepresented the merits and demerits of both the applicant and the sister. The applicant argued that the previous will, which provided for an equal share of the estate, more adequately reflected the deceased's intentions.

The primary legal issues the court had to address were whether the will was a valid expression of the deceased's wishes and whether the statement that influenced the will was procured unfairly. The court also needed to determine whether the applicant had demonstrated sufficient grounds for the court to exercise its discretion to make orders under the Succession Act. In assessing these issues, the court considered the circumstances surrounding the procurement of the testamentary statement, the credibility of the evidence presented, and the overall fairness of the distribution of the estate.

The court found that the testamentary statement was indeed procured unfairly by the sister, as it misrepresented the merits of both siblings and was not a true reflection of the deceased's intentions. The court concluded that the will was not a fair reflection of the deceased's wishes and that the applicant had demonstrated a valid claim for equitable distribution of the estate. The court exercised its discretion to make orders under section 47 of the Succession Act, ordering that the applicant's sister transfer to the applicant an amount equal to half the value of the family home. This would provide the applicant with sufficient funds for their maintenance, education, and advancement.

Orders