Scott v Scott

Case [2021] NSWSC 1619


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

  1. 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.

  2. 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.

  3. 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

  1. 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.

  2. The deceased’s main asset was a house at Fairfield which had been the family home. Of her other assets, the most important was…

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AGLC
Scott v Scott [2021] NSWSC 1619
Case
[2021] NSWSC 1619
Decision Date

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

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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