Sylvester v Sylvester & Anor [2010] QSC 331
The applicant was one of five children of the deceased who commenced proceedings under the Succession Act 1981 ("the Act") for further provision from the deceased's estate. The respondents applied for summary dismissal of the application on the basis that the applicant failed to show any reasonable prospect of success.
The Will of the deceased expressly stated "Having given the matter a lot of thought, I have deliberately made no provision for Robert". The deceased's estate was valued as a large estate which was to be distributed to the applicant's siblings under the Will. There was evidence that to show the deceased had made large payments to the applicant's brothers prior to his death.
The deceased and his family were involved in a family business of cattle, sheep and cropping over a number of years. The applicant and his siblings grew up on the family property and were involved with the family business. After school the applicant was employed by the family business majority of the years up until 2005 in various roles. Ewart Junior worked in the family business until 1992, Alan until 1993 and Ian managed one of the family properties from 1988.
In 1996 loans of the family business were refinanced and the applicant was required to give a personal guarantee for debts to the bank along with the deceased.
By 2004 both the deceased and the deceased's wife had moved into an aged care home, during which time until 2005, the applicant played a crucial role in the management of the family business.
Various transactions occurred over the years between the applicant and the deceased and the deceased's wife to the effect that the deceased owed the applicant for shares in the family business and the applicant gained ownership of a property and supposed water licence. These assets held by the applicant were later disposed of due to an arrangement made between the parties.
The applicant discovered in 2005 that the deceased intended on withdrawing his personal guarantee which would have left the applicant the sole personal guarantee for debts of the business.
The relationship between the applicant and the deceased had deteriorated by this stage and the applicant left the family business. In 2005 the applicant agreed with his brothers to receive certain assets. This agreement was not upheld by the deceased who gave him 800 ewes and 750 lambs which were delivered after they had been sheared.
In 2010 the applicant's partnership assets with his wife were estimated at $2,500,000.00 net value. These included a house, a grazing property and livestock. The partnership had run at a considerable loss from 2007 to 2009. It was expected that 2010 would create additional loss. The applicant hoped to purchase a closer larger grazing property to reduce costs of agistment.
The applicant experienced a number of health issues resulting from working in the family business and the relationship between the deceased and the applicant. Additional future needs of the applicant were identified as being able to provide ongoing education of his sons and a source of income for the retirement of the applicant and his wife.
S 41 of the Act requires the Court to take a two stage process. The first stage is to determine whether the applicant has been left without adequate provision for their own maintenance, education and advancement in life. The second stage only applies if the Court decides that the applicant has not received adequate provision, in which case they would then decide what provision ought to be made for the applicant out of the deceased's estate.
It was said if the estate of the deceased is large, the Court may recognise the deceased's ability to make provision which would not have been possible had the estate been small.
The respondents conceded that their application for summary judgement to dismiss the applicant's application depended on them showing determination of the first stage was not in the favour of the applicant.
It was recognised that a family provision application could be dismissed summarily where the applicant has failed to prove a prima facie case based on the material filed by the applicant, therefore the applicant must prove there is a case on the face of it. The Court noted that the purpose of the legislation was not to intrude on the freedom of a deceased to dispose of their estate as they wish.
The Court found the applicant was aggrieved by the treatment of the deceased and the deceased did not give appropriate financial recognition to the applicant in the strengthening of the family business.
The Court stated that summary judgement was not for the purpose of redressing disappointed family members or re-writing a Will.
The respondents emphasised that the future needs shown by the applicant were for the purpose of purchasing a larger property. The respondents asserted that at the time of the deceased's death the applicant was financially secure. They also submitted losses of the partnership were decreasing significantly and even though the deceased's estate was large that did not assist the applicant in proving a case.
The Court said difficulty with the respondents' criticism concerning purchasing a larger property was that the applicant wished to pursue the type of business and lifestyle that was known through his upbringing. The applicant had been involved in the farming family business with the deceased for most of his life and they were his qualifications. It was the family business that enabled the deceased to give gifts to the applicant's siblings prior to his death and under the Will. The farming partnership of the applicant had commenced prior to the death of the deceased, however it was assumed to be in contemplation that the applicant would continue the only business he knew and had been encouraged to do by the deceased. Although improving, the partnership was still making a loss.
The Court considered the relevant factors being that the applicant had assisted the deceased considerably to build up the family business, the applicant was hindered in conducting his own farming business due to the distance required to travel to other properties to agist sheep, the applicant had financial needs arising from the establishment of his own farming business and had possible health issues.
The Court said whether the benefits provided to the applicant throughout the years hindered the applicant's chances of ultimately being successful was not for the Court to consider in the summary application. It was also said that the size of the estate was irrelevant for the purpose of the summary judgement.
The Court held there was enough evidence to support an argument for a case that the applicant had been left without adequate provision under the Will, even though the strength of the case may be debatable.
The Court ordered the respondents' application be dismissed.