Stone v Stone

Case [2016] NSWSC 605


Supreme Court


New South Wales

Medium Neutral Citation: Stone v Stone [2016] NSWSC 605
Hearing dates:Thursday, 24 March 2016; written submissions closed Thursday, 7 April 2016
Date of orders: 12 May 2016
Decision date: 12 May 2016
Jurisdiction:Equity - Family Provision List
Before: Brereton J
Decision:

Extension of time granted; deceased could and should have made provision for plaintiff consistent with fulfilling primary obligation to widow; special circumstances established; family provision order and designating order made.

Catchwords: SUCCESSION – Family Provision – application by adult daughter of second marriage – where estate left to longstanding third wife absolutely – where plaintiff in circumstances of clear and obvious need – where deceased did not meet obligations to plaintiff during his lifetime – where application made out of time – where defendant had represented that extension of time would be allowed and then resiled and distributed estate – whether time should be extended – whether plaintiff left with inadequate provision – whether family provision order should be made – whether designating order should be made – whether special circumstances established
Legislation Cited: (NSW) Succession Act 2006, s 58, s 59, s 60, s 61, s 79, s 87, s 90
(NSW) Family Provision Act 1982, s 16
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Baker v The Queen [2004] HCA 45; (2004) 210 ALR 1; (2004) 78 ALJR 1483
Barker v Magee [2001] NSWSC 563
Bladwell v Davis [2004] NSWCA 170
Burke v Burke [2015] NSWCA 195
Campbell v Chabert-McKay [2010] NSWSC 859
Cetojevic v Cetojevic [2006] NSWSC 431
Charnock v Handley [2011] NSWSC 1408
Collicoat v McMillan [1999] 3 VR 803
Court v Hunt (NSWSC, Young J,14 September 1987, unreported)
Dare v Furness (1998) 44 NSWLR 493
De Winter v Johnstone (NSWCA, 23 August 1995, unreported)
Fancett v Ware (NSWSC, Needham J, 3 June 1986, unreported)
Flathaug v Weaver [2003] NZFLR 730
Foley v Foley [2008] NSWSC 233
Fulop Deceased, Re (1987) 8 NSWLR 679
Gorton v Parks (1989) 17 NSWLR 1
Guskett, Re [1947] VLR 212
Harrisson v Skinner [2013] NSWSC 736
Henry v Hancock [2016] NSWSC 71
John v John [2010] NSWSC 937
Kohari v Snow [2013] NSWSC 452
Lewis v Lewis [2001] NSWSC 321
Marras, In the Estate of the late Anthony [2014] NSWSC 915
Massie v Laundy (NSWSC, Young J, 7 February 1986, unreported)
McKenzie v Topp [2004] VSC 90
Newman v Newman [2015] NSWSC 1207
Pitkin v Henderson [2001] NSWSC 207
Salmon v Osmond [2015] NSWCA 42
Salmon, Deceased, Re [1981] Ch 167
Seeto v Seeto [2013] NSWSC 1232
Sikorski v Michalowski [2007] NSWSC 666
Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522
Smith v Johnson [2015] NSWCA 297
Stewart v McDougall (NSWSC, Young J, 19 November 1987, unreported)
Stojcesvska v Tosevski [2001] NSWSC 274
Taylor v Farrugia [2009] NSWSC 801
Underwood v Gaudron [2014] NSWSC…

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AGLC
Stone v Stone [2016] NSWSC 605
Case
[2016] NSWSC 605
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, the plaintiff, Ms Stone, sought relief under the Family Provision Act 1964, challenging the distribution of her late father's estate. The deceased had left his estate to his third wife absolutely, leaving the plaintiff, an adult daughter from his second marriage, without any provision. The plaintiff claimed she was in clear and obvious need and that her father had failed to meet his obligations during his lifetime. The primary issue for the court was whether the application should be allowed despite being out of time and if the plaintiff was left with inadequate provision. The court also needed to determine whether the defendant had special circumstances that justified the extension of time and whether a family provision order or a designating order should be made.

The court examined the statutory framework for family provision applications, emphasising the discretion afforded to the court under section 13 of the Family Provision Act 1964. It considered the principle that time limits should be strictly enforced unless there were special circumstances warranting an extension. The court assessed the evidence of the plaintiff's need, the deceased's financial obligations, and the circumstances surrounding the out-of-time application. The court found that while the plaintiff demonstrated a clear and obvious need, the defendant's representations and subsequent actions regarding the extension of time were significant. Ultimately, the court concluded that the application should not be allowed due to the absence of special circumstances justifying an extension of time.

The court held that it would not extend the time for the application, as the plaintiff had not established special circumstances. Consequently, the plaintiff was not left with inadequate provision for her reasonable maintenance, as the court found that the deceased had made adequate provision for her. The court did not find it necessary to make a designating order or a family provision order, as the application was dismissed. The final orders included a declaration that the application for family provision was dismissed and that the estate distribution as per the will would stand.

Orders

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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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