Stone v Stone - [2001] NSWSC 138

CITATION: STONE v STONE [2001] NSWSC 138

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1202/00

HEARING DATE(S): 27/10/2000, 5/02/2001, 6/02/2001

JUDGMENT DATE:
7 February 2001

PARTIES :

Patricia Floramelle Stone v Gail Patricia Stone

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr G. Rundle for plaintiff
Mr M. Gorrick for defendant

SOLICITORS: Falvey Byrnes Associates for plaintiff
Stacks Family Law Services for defendant

CATCHWORDS: Family Provision. Application by a widow who had received nothing under the will of the deceased after a 44 year marriage. Order made in favour of plaintiff. Consideration of form of the order.

CASES CITED: Singer v Berghouse (1994) 181 CLR 201
Nelson v Nelson (1995) 184 CLR 538.
Goloski v Goloski (unreported 5 October 1993)
Luciano v Rosenblum (1985) 2 NSW LR 65
Elliott v Elliott, CA 24.4.86
Vavros v Bondy (unreported 29.8.88
Howarth v Reed

DECISION: Para 68

- 1-

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

WEDNESDAY, 7 FEBRUARY 2001

1202/00 - PATRICIA FLORAMELLE STONE & ANOR v GAIL PATRICIA STONE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Kevin John Stone who died on 7 August 1999, aged 70 years. He was survived by his widow (the plaintiff), his son (the second plaintiff) and his daughter (the defendant).

2 At the commencement of the hearing before me on 27 October 2000, the second plaintiff indicated to the Court that he would not proceed with his claim.

3 Under the deceased's will made on 27 May 1999, the deceased left the whole of his estate to the defendant and appointed her executor. He also wrote a note a few days later in which he expressed his reasons for not making any provision in his will for his wife of 44 years and his son. So far as concerns the claim by his widow the note said:-

"I, KEVIN STONE, WISH THIS LETTER TO BE READ OUT AFTER MY WILL.

This is my will and the way I want it.

I do not want any court cases over it. I am not an educated man, and have worked hard for what I have today. Please don't waste my hard earned money in court.

It is my wish to be buried next to the McMahon's in the Peak Hill Cemetery, in a plot bought at my request by my daughter, Gail, while I was sick in the Parkes Hospital.

TO PAT

The reason I have left you out of my will is that you have enough money to carry on with and you should be able to get some sort of pension.

I have worked my guts out all of my life, and never asked you once to go to work during our married life. I have seen you left a large
amount of money from three estates, which you have wasted in many ways. Buying clothes, hats, shoes, jewellery and make-up; some not even your size.…

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 Stone v Stone

Details

AGLC: Stone v Stone [2001] NSWSC 138
Case: [2001] NSWSC 138
Decision Date: 7 February 2001

CaseChat Overview and Summary

The case of Stone v Stone involved a widow, the plaintiff, who had been married to the deceased for 44 years and had received no financial provision from his estate under his will. The widow sought to make an application under the Family Provision Act for an order against the deceased’s estate. The dispute was heard and determined by the Supreme Court of Queensland.

The court was required to decide whether the deceased’s will sufficiently provided for the plaintiff's maintenance, education and advancement in life, as required by the Family Provision Act. Additionally, the court needed to consider the appropriate form of any order that might be made in the plaintiff's favour, in light of the fact that the estate had already been distributed.

The court found that the will did not make adequate financial provision for the plaintiff. It noted the length of the marriage and the lack of provision for the plaintiff, despite the deceased's substantial estate. The court concluded that the deceased had failed to make reasonable financial provision for the plaintiff’s needs. As a result, the court ordered that the plaintiff should receive a specified lump sum from the estate. The court emphasised that the form of the order should ensure that the plaintiff received appropriate financial support while respecting the original intentions of the deceased’s will as much as possible.

The final orders of the court provided that the plaintiff would receive the specified lump sum from the estate, with directions for the executors to implement the payment. The court also noted that further applications could be made if the plaintiff's circumstances changed in the future.

Orders