Stejskal v Hely - [2019] NSWSC 1417

Supreme Court

New South Wales

Medium Neutral Citation: Stejskal v Hely & Ors [2019] NSWSC 1417
Hearing dates: 16 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 2019
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Additional provision ordered

Catchwords: SUCCESSION — family provision and maintenance — failure by testator to make sufficient provision for applicant — father leaves only adult son small pecuniary legacy with most of estate left to charities — Succession Act 2006 (NSW), ss 59, 60
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
Browne v Dunn (1893) 6 R 67 (HL)
Evans v Levy [2011] NSWCA 125
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Sgro v Thompson [2017] NSWCA 326
Steinmetz v Shannon [2019] NSWCA 114; (2019) 368 ALR 161
Taylor v Farrugia [2009] NSWSC 801
Category: Principal judgment
Parties:
Tomas Stejskal (Plaintiff)
Joanne Robyn Hely (First Defendant)
Jeffrey Sean Agius (Second Defendant)
Justin Betar (Third Defendant)
Representation:
Counsel:

J E F Brown (Plaintiff)
N Bilinsky (Defendants)

Solicitors:

Marsdens Lawyers (Plaintiff)
Betar Lawyers (Defendants)

File Number(s): 2018/310576
Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary

The plaintiff, Tomas Stejskal, to whom I shall refer without disrespect as "Tomas", is a 61 year old mechanical fitter. By reason of his current medical circumstances, he is unlikely ever to work again. The defendants are the executors of the estate of Tomas' late father, Jan Stejskal, to whom I shall refer as "Dr Stejskal". Dr Stejskal died by his own hand on or about 20 September 2018 at the age of 86. Tomas is the only child of Dr Stejskal's first marriage.
Dr Stejskal made his last will and testament on 12 December 2017 (the “Will"). He died leaving a property at Wallacia, cash at bank and some shares. The value of his assets at death was approximately $2.5 million.
Under the Will Dr Stejskal left $50,000 to Tomas. The Will also provided for two $20,000 legacies and gifts of chattels to other persons. The residue of the estate was left to be divided equally between St Vincent’s Clinic Foundation and the Royal Flying Doctor Service of Australia (the “Charities").
The estate has been converted into cash and substantially administered, including paying Tomas the specific legacy of $50,000. The parties were in agreement that, after taking into account all costs and expenses, including the parties' costs of these proceedings, the total net estate remaining was $1,759,335.48.
The hearing was conducted with commendable economy. There was no dispute that, for the purposes of making a claim for a family provision order under the Succession Act 2006 (NSW) (the “Act"), Tomas was the only eligible person who had brought a claim, and that his claim had been brought in time.
The only other eligible person in relation to Dr Stejskal's estate (his second wife, Bohuse Stejskal-Jarosova, having predeceased him) is Tomas' mother. She…

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 Stejskal v Hely

Details

AGLC: Stejskal v Hely [2019] NSWSC 1417
Case: [2019] NSWSC 1417
Decision Date: 17 October 2019

CaseChat Overview and Summary

In the case of Stejskal v Hely, the dispute arose from the deceased's will, which left a small pecuniary legacy to the applicant, his only son, with the majority of the estate being bequeathed to charitable organisations. The applicant contended that the testamentary disposition was unjust and inequitable under the Succession Act 2006 (NSW). The court was tasked with determining whether the testator had made adequate provision for his son's maintenance and whether the son had established grounds to challenge the will on the basis of insufficiency of provision.

The central legal issue before the court was whether the bequest made to the son was sufficient to meet his reasonable financial needs, taking into account the testator's overall estate. The court needed to consider the provisions of the Succession Act 2006 (NSW) and assess the relevant factors outlined in sections 59 and 60. The court also had to evaluate the testator's intentions and the financial circumstances of both the testator and the son at the time of the will's creation.

The court found that the pecuniary legacy left to the son was insufficient to meet his reasonable financial needs, given the size of the testator's estate and the bequests to charitable organisations. The court highlighted that the testator's failure to make adequate provision for his son constituted a significant departure from what would be considered fair and reasonable. Consequently, the court exercised its discretion under section 60 of the Succession Act 2006 (NSW) to make an order for family provision in favour of the son. The final orders required the executors to pay a specified sum to the son to address his maintenance needs.

Orders