Shcherbakova v Stapleton And Stapleton v Stapleton - [2001] NSWSC 213

CITATION: SHCHERBAKOVA v STAPLETON AND STAPLETON v STAPLETON [2001] NSWSC 213

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1487/98; 2526/98

HEARING DATE(S): 12 - 15 March 2001

JUDGMENT DATE:
15 March 2001

PARTIES :

Natalia Shcherbakova & Anor v Nealings Edwin Stapleton
Linda Eileen Stapleton & Anor v Nealings Edwin Stapleton (Estate of Grahame Edwin Stapleton)

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr. G.W. McGrath for plaintiffs Natalia & Dima Shcherbakova
Mr R.D. Wilson for plaintiffs Linda and Jean Stapleton
Mr M. Southwick for defendant

SOLICITORS: John C. Burton for Shcherbakova
Peninsula Law for Linda & Jean Stapleton
Grinberg Young & Krass for defendant

CATCHWORDS: Family Provision. Application by the plaintiff who migrated to Australia to marry the deceased. Deceased has a hear attack 3 days after her arrival and dies a week later. Whether the plaintiff was part of the household and partly dependent. Large estate. In circumstances order for a legacy. - Application by daughters. Appropriate vesting date for legacy. Change of vesting date from 25 to 23 years for one daughter and legacy ordered for daughter omitted from will.

CASES CITED: Kingsland v Macindoe (1989) VR 273
Petroholis v Hunter (1991) 25 NSWLR 343
McKenzie v Baddeley (Court of Appeal 3.12.91)
Re Fulop deceased (1989) 8 NSWLR 679
Churton v Christian (1988) 13 NSWLR 241
Brown v Faggoter (Court of Appeal 13.11.98)
Singer v Berghouse
Luciano v Rosenblum (1985) 2 NSWLR 65
Anasson v Phillips Young J 4.3.88
Shearer v PT Young J 23.3.98

DECISION: Paragraph 131

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

THURSDAY 15 MARCH 2001

001487/98 - NATALIA SHCHERBAKOVA & 1 OR v NEALINGS EDWIN STAPLETON

002526/98 - LINDA EILEEN STAPLETON & 1 OR v NEALINGS EDWIN STAPLETON - ESTATE OF GRAHAME EDWIN STAPLETON

_______

JUDGMENT.

1 MASTER: These are applications under The Family Provision Act in respect of the estate of late Grahame Edwin Stapleton, who died on 25 December 1996 aged 59 years. The deceased was survived by his son and two daughters who are parties to these actions. He is also survived by his fiancee and her son, who are plaintiffs in 14871/98. His daughters are plaintiffs in matter 2526/98. I have ordered that both matters be heard together and the evidence in one BE evidence in the other.

2 The deceased made his last will on 4 April 1995 under which he appointed his son the executor. He gave two thirds of his estate to his son and one third to his younger daughter, Jean. He made no provision for his daughter, Linda, or for Mrs Shcherbakova and her son. He did leave, however, a draft will making provision to which I will refer later.

3 The assets of the asset appear to be as follows:

1. House at RMB 1720 Wisemans Ferry Road, Mangrove Mountain $390,000.00

Folio Identifier 811/529990
- 5 acres with house and 6
self contained units $350,000.00

Folio Identifier 812/52990
- 25 acres vacant land

Folio Identifier…

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 Shcherbakova v Stapleton And Stapleton v Stapleton

Details

AGLC: Shcherbakova v Stapleton and Stapleton v Stapleton [2001] NSWSC 213
Case: [2001] NSWSC 213
Decision Date: 15 March 2001

CaseChat Overview and Summary

The plaintiffs, Shcherbakova and her daughters, sought provision from the estate of the deceased, Shcherbakova’s former husband, following his death. The deceased suffered a heart attack shortly after the plaintiff's arrival in Australia to marry him and passed away a week later. The dispute involved whether the plaintiff was part of the household and partly dependent on the deceased, and if so, whether she was entitled to an order for a legacy from the estate. The estate was substantial, leading to the plaintiffs’ application for appropriate financial provision. The daughters separately sought a change in the vesting date for their legacies and the inclusion of a legacy for one daughter who was omitted from the deceased's will.

The central legal issues before the court were the eligibility of the plaintiff for a provision order under the Family Provision Act and the appropriate vesting date for the daughters’ legacies. The court needed to determine if the plaintiff had a sufficient connection to the deceased's household to warrant a provision order and whether the deceased's will adequately provided for the daughters. The court also had to decide if there were valid reasons to alter the vesting date for the daughters' legacies and to consider whether the omission of one daughter from the will should result in an additional legacy.

In delivering the judgment, the court found that the plaintiff was indeed part of the household and partly dependent on the deceased, satisfying the criteria for a provision order under the Family Provision Act. The court granted an order for a legacy to the plaintiff, considering her circumstances and the size of the estate. Regarding the daughters' applications, the court adjusted the vesting date for one daughter's legacy from 25 to 23 years and ordered a legacy for the daughter who was omitted from the will. These decisions were based on the court's assessment of the deceased's intentions and the fairness of the distribution of the estate.

The final orders of the court included the granting of a legacy to the plaintiff, the adjustment of the vesting date for one daughter’s legacy, and the addition of a legacy for the daughter omitted from the will. The court's decisions reflected a careful consideration of the statutory requirements and the specific circumstances of the case.

Orders