Sylvester v Sylvester - [2010] QSC 331

SUPREME COURT OF QUEENSLAND

CITATION:

Sylvester v Sylvester & Anor [2010] QSC 331

PARTIES:

ROBERT JOHN SYLVESTER (under Part IV, Sections 40-44, Succession Act 1981)
v
WILLIAM EWART SYLVESTER and GORDON MARTIN (as executors of the will of EWART GLADSTONE SYLVESTER deceased)

FILE NO:

BS1668 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment

DELIVERED ON:

8 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2010

JUDGE:

Mullins J

ORDER:

The application filed on 18 May 2010 is dismissed

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – PROCEDURE, ORDERS AND OTHER MATTERS – IN RELATION TO APPLICATION – claim for family provision by adult son in respect of father’s estate – where application made by executors to dismiss claim summarily – where deceased expressly made no provision under his will for the applicant – where applicant worked for family business which operated several properties – where applicant ceased working for family business after relationship with his father deteriorated and he was required to vacate the family property – where applicant claims his exclusion from his father’s will fails to recognise his contribution to building up family business – where applicant was able to acquire one of the family properties from his mother on favourable terms and settled a dispute with his father over a water licence for payment to the applicant of $550,000 and that the applicant sell his property – where applicant after his father’s death was able to purchase a smaller property than the one he had acquired from his mother that was not sufficient to run all his stock – where the farming partnership of the applicant and his wife was making losses – whether applicant’s affidavits establish a prima facie case – whether application should be dismissed summarily

Succession Act 1981, s 41
Atthow v McElhone [2010] QSC 177, considered
Banks v Seemann [2008] QSC 202, considered
Bosch v Perpetual Trustee Co Ltd [1938] AC 463, considered
Higgins v Higgins [2005] 2 Qd R 502, followed
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, considered
O’Donnell v Gillespie [2010] QSC 22, considered

Singer v Berghouse (1994) 181 CLR 201, followed
Vigolo v Bostin (2005) 221 CLR 191, considered

COUNSEL:

R M Treston for the applicant
D G Mullins SC for the respondents

SOLICITORS:

Thynne & Macartney for the applicant
McCullough Robertson for the respondents

The applicant is one of the children of the late Ewart Gladstone Sylvester (the deceased) who died in May 2009. Probate of the deceased’s last will made on 8 July 2008 and codicil made on 13 February 2009 was granted to the respondents as the executors of the will. The applicant commenced this proceeding in order to obtain further provision from the deceased’s estate in reliance on s 41 of the Succession Act 1981 (the Act). The respondents apply for summary dismissal of the application on the basis that it does not disclose a

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 Sylvester v Sylvester

Details

AGLC: Sylvester v Sylvester [2010] QSC 331
Case: [2010] QSC 331
Decision Date: 8 September 2010

CaseChat Overview and Summary

In Sylvester v Sylvester, the parties were the executors of the estate of a deceased man and his son, the applicant. The dispute centred on the son's claim for family provision from his father's estate, following the father's express omission of the son in his will. The case was heard in the Supreme Court of Queensland.

The legal issues for the court to decide were whether the applicant's affidavits established a prima facie case for family provision and whether the application should be dismissed summarily. The court had to consider the applicant's contributions to the family business, the terms under which he acquired a family property from his mother, and the settlement of a water licence dispute with his father. The court also had to assess the financial circumstances of the applicant post the father's death and the viability of the farming partnership between the applicant and his wife.

The court found that the applicant had not established a prima facie case for family provision. The applicant's exclusion from the will was due to the deterioration of his relationship with his father, which was a valid reason for the deceased's decision. The court considered that the applicant had acquired a property from his mother on favourable terms and had received a significant payment from his father, which mitigated any financial hardship. Additionally, the court noted the applicant's financial difficulties and the losses incurred by his farming partnership, but these were not sufficient to establish a need for family provision. The court concluded that the application should be dismissed summarily.

Orders

Orders of the court

The application filed on 18 May 2010 is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sylvester v Sylvester & Anor [2010] QSC 331
PARTIES:	ROBERT JOHN SYLVESTER (under Part IV, Sections 40-44, Succession Act 1981) v WILLIAM EWART SYLVESTER and GORDON MARTIN (as executors of the will of EWART GLADSTONE SYLVESTER deceased)
FILE NO:	BS1668 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application for summary judgment
DELIVERED ON:	8 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 June 2010
JUDGE:	Mullins J
ORDER:	The application filed on 18 May 2010 is dismissed
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – PROCEDURE, ORDERS AND OTHER MATTERS – IN RELATION TO APPLICATION – claim for family provision by adult son in respect of father’s estate – where application made by executors to dismiss claim summarily – where deceased expressly made no provision under his will for the applicant – where applicant worked for family business which operated several properties – where applicant ceased working for family business after relationship with his father deteriorated and he was required to vacate the family property – where applicant claims his exclusion from his father’s will fails to recognise his contribution to building up family business – where applicant was able to acquire one of the family properties from his mother on favourable terms and settled a dispute with his father over a water licence for payment to the applicant of $550,000 and that the applicant sell his property – where applicant after his father’s death was able to purchase a smaller property than the one he had acquired from his mother that was not sufficient to run all his stock – where the farming partnership of the applicant and his wife was making losses – whether applicant’s affidavits establish a prima facie case – whether application should be dismissed summarily Succession Act 1981, s 41 Atthow v McElhone [2010] QSC 177, considered Banks v Seemann [2008] QSC 202, considered Bosch v Perpetual Trustee Co Ltd [1938] AC 463, considered Higgins v Higgins [2005] 2 Qd R 502, followed Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, considered O’Donnell v Gillespie [2010] QSC 22, considered Singer v Berghouse (1994) 181 CLR 201, followed Vigolo v Bostin (2005) 221 CLR 191, considered
COUNSEL:	R M Treston for the applicant D G Mullins SC for the respondents
SOLICITORS:	Thynne & Macartney for the applicant McCullough Robertson for the respondents