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 1. This is a claim for family provision under s 59 of the Succession Act 2006 (NSW) ("the Act") by Mr Garry Stollery ("Mr Stollery") in respect of the estate of his late father, Mr John Stollery (the "Deceased"). 2. 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]. 3. 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.