Sellak v Sellak, estate of late Corrado Simon Sellak; Sellak v Sellak

[2016] NSWSC 213

Supreme Court

New South Wales

Medium Neutral Citation:	Sellak v Sellak, estate of late Corrado Simon Sellak; Sellak v Sellak [2016] NSWSC 213
Hearing dates:	18, 19 and 20 November 2015
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	See paragraph [7].
Catchwords:	FAMILY PROVISION – two of three adult children of deceased seek orders for family provision – claimants are eligible persons - whether adequate provision made for plaintiffs in deceased’s will – if so, what provision should be made for the plaintiffs.
Legislation Cited:	Succession Act 2006, Chapter 3
Cases Cited:	Chapple v Wilcox [2014] NSWCA 392 Drury v Smith [2012] NSWSC 1067 Evans v Levy [2011] NSWCA 125 Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category:	Procedural and other rulings
Parties:	Plaintiff (in 2014/214338): Bradley Craig Sellak Plaintiff (in 2014/245521): Scott Sellak Defendant: Tracy Sellak
Representation:	Counsel: Plaintiff (in 2014/214338): D. Roberts Plaintiff (in 2014/245521): P. Bates Defendant: G. Foster   Solicitors: Plaintiff (in 2014/214338): George West, Solicitor & Attorney Plaintiff (in 2014/245521): Vrege Kolokossian, Gerard Malouf & Partners Defendant: Angelo Valenti, Valenti & Valenti
File Number(s):	2014/214338; 2014/245521
Publication restriction:	No

Judgment

1. The two plaintiffs in these proceedings, which are heard together, seek an order for family provision under Succession Act 2006, Chapter 3 from the estate of the late father, Corrado Simon Sellak. The plaintiff, Bradley Sellak, in proceedings 2014/214338 seeks such an order against the estate as does his brother Scott Sellak, the plaintiff in proceedings 2014/245521. The executrix of the estate, their sister Tracy Sellak, resists the relief sought.

2. But one possible result in the proceedings is that the shares of the residuary estate that the three grandchildren of the deceased take under his will dated 16 January 2009 may be reduced, and according to the submissions of some of the parties, substantially reduced.

3. The eldest child, Aleishia, is over the age of 18 and is living independently. The younger two children, Jeremy and Bianca, are still living at home.

4. The Court raised this issue on second day of hearing, 19 November 2015 (transcript page 145, line 25-page 146, line 15). The parties and the Court returned to the issue the following day (transcript page 267, line 41 to page 268, line 26). But the submissions on the next day were partly directed to the conclusion that the children living in the household of Bradley and Donna would benefit anyway through the household, by reason of any increase for provision for Bradley, or for Scott. But at least one of the children, Aleishia, would not get so direct a benefit. Reflecting on the matter the Court has become concerned that she in particular would need independent advice. But if independent advice is to be given it should be given to all three grandchildren.

5. The parties should attend to this as soon as they can and either supply to the Court a short affidavit indicating that independent advice has been taken by all three grandchildren and they do not wish to say anything themselves, or alternatively, that independent advice has been given and a submission of some kind is to be made on their behalf. The Court will receive that affidavit and or that submission if it is transmitted to my Associate in chambers. Once that material is received it can be taken into account and the final judgment delivered.

6. Provided the legal advisers of the parties co-operate in providing the requested material to the independent legal adviser for the grandchildren the advice should be able to be given at minimal additional costs in the proceedings.

7. The Court gives the following directions:

1. The parties should co-operate among themselves to arrange for the deceased’s three grandchildren, Aleishia, Jeremy and Bianca (“the grandchildren”), to be independently advised in these proceedings, as soon as is convenient.

2. Once an independent legal adviser is found for the grandchildren, the parties should co-operate in providing relevant materials in these proceedings to that legal adviser, as informally, economically and efficiently, as possible.

3. Once independent advice has been obtained, the Court should be informed, (by communicating with my Associate) on behalf of the grandchildren whether any or all of them wish to make any submission in the proceedings.

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Decision last updated: 11 March 2016