Stollery v Stollery - [2016] NSWSC 54

Supreme Court

New South Wales

Medium Neutral Citation: Stollery v Stollery [2016] NSWSC 54
Hearing dates: 7-8 December 2015 and 8 February 2016
Decision date: 11 February 2016
Jurisdiction: Equity - Family Provision List
Before: Stevenson J
Decision:
Summons dismissed

Catchwords: SUCCESSION – family provision – claim by adult son - where adult son was left nominal legacy from father’s estate – where substantial proportion of estate left to the deceased’s grandchildren – estrangement - son estranged from the deceased for over 20 years – inadequate disclosure by son of his financial position – obligation on applicant for provision to make full disclosure of his or her financial position - not shown that adequate provision not made
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Collings v Vakas [2006] NSWSC 393
Doshen v Pedisich [2013] NSWSC 1507
Lajcarova v Todorov [2011] NSWSC 522
Nowak v Beska [2013] NSWSC 166
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Category: Principal judgment
Parties: Garry John Stollery (Plaintiff)
Dianne Stollery (Defendant)
Representation:
Counsel:
G J Smith (Plaintiff)
T T Bors (Defendant)
Solicitors:
Maurice Buckley C T Poole & Son (Plaintiff)
Paul Bard Lawyers (Defendant)

File Number(s): SC 2014/259204

Judgment

Introduction

This is a claim for family provision under s 59 of the Succession Act2006 (NSW) (“the Act”) by Mr Garry Stollery (“Mr Stollery”) in respect of the estate of his late father, Mr John Stollery (the “Deceased”).
In my opinion the application should be dismissed. I am not satisfied, for the purposes of s 59(1)(c) of the Act, that the Deceased did not make adequate provision for the maintenance and advancement of his son. Mr Stollery’s case thus fails to pass the “first stage” identified in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 208-209 (as applied to cases under the Act: for example see Nowak v Beska [2013] NSWSC 166 per Hallen J at [113]). It follows that I have no jurisdiction to make an order for provision: for example Lajcarova v Todorov [2011] NSWSC 522 per Hallen AsJ (as his Honour then was) at [79].
A significant factor leading to this result is my conclusion that Mr Stollery has made no attempt to place before the Court an accurate statement of his financial position. In any event, Mr Stollery and the Deceased were estranged for almost a quarter of a century before the deceased died. In the circumstances, Mr Stollery has not satisfied me that the modest provision the Deceased made in his will for Mr Stollery is not adequate.

Background

The Deceased died on 9 September 2013, aged 76.
He was survived by:

his widow, Enid Stollery, who is aged 87;

Mr Stollery, who is aged 55; and

his other son Mark Stollery, who is aged 52.

When he died, the Deceased also had six grandchildren. They are the children of Mark and his wife, Dianne Stollery; Amanda who is aged 27, Sarah who is 26 and Grant who is 21; and the children…

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 Stollery v Stollery

Details

AGLC: Stollery v Stollery [2016] NSWSC 54
Case: [2016] NSWSC 54
Decision Date: 11 February 2016

CaseChat Overview and Summary

The case of Stollery v Stollery involved a claim by an adult son for family provision from his father's estate. The father had left the son a nominal legacy and a significant proportion of the estate to his grandchildren. The son had been estranged from his father for over twenty years. The son made a claim for family provision, but he did not disclose his full financial position. The court needed to decide whether the father had made adequate provision for the son and whether the son had discharged the onus of proving that he had not been adequately provided for.

The legal issues in this case were whether the father had made adequate provision for the son and whether the son had discharged his onus of proving that he had not been adequately provided for. The court noted that the son had been estranged from his father for over twenty years and that he had not made a full disclosure of his financial position. The court held that the son had not discharged his onus of proving that he had not been adequately provided for. The court found that the father had made adequate provision for the son and dismissed the son's claim.

The court held that the father had made adequate provision for the son, despite the son's estrangement from his father for over twenty years. The court found that the son had not discharged his onus of proving that he had not been adequately provided for. The court held that the son's failure to make a full disclosure of his financial position was a significant factor in its decision. The court also noted that the son's claim was further weakened by the fact that he had received a nominal legacy from his father's estate.

The court dismissed the son's claim for family provision and made no orders for costs. The court held that the father had made adequate provision for the son and that the son had not discharged his onus of proving that he had not been adequately provided for. The court also held that the son's failure to make a full disclosure of his financial position was a significant factor in its decision.

Orders