Stejskal v Hely & Ors  NSWSC 1417
Supreme Court of New South Wales
Kunc J The plaintiff was the son of the deceased. The plaintiff sought further provision from the deceased’s estate believing their was inadequate provision provided. The son had specific accommodation needs. The Court determined whether the deceased had ‘moral duty’ to son with regards to the size of the estate, the sons needs in respect of accommodation, ‘necessary expenses and contingencies’ – whether ‘policy interest’ in making of ‘provision sufficient to free the public purse from supporting’ plaintiff – ss59 & 60 Succession Act 2006 (NSW) – held: Court satisfied to make order for further provision in son’s favour.
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Appeal by the estate of the deceased husband against property settlement orders. The primary judge found that contributions of the husband and the wife to their property and to the welfare of the family were equal. The primary judge made a 10 per cent adjustment in favour of the wife. The appeal questioned if the Judged erred in granting this adjustment and whether the adjustment made by the primary judge was out of all proportion to the wife’s needs. Where the adjustment made was not out of all proportionality to the likely expenses of the wife it was decided the primary judge was within the ambit of a reasonable exercise of discretion. It as decided that the primary judge engaged with and made relevant findings in relation to disputed issues as to contributions. Where the premises on which the estate’s contentions are based cannot be made out and the grounds fail, the primary judge was obliged to take into account the terms of the husband’s will. The testator’s intentions in relation to the disposition of their property on their death should not override the considerations mandated by the Court in s 79(4) and s 75(2) of the Family Law Act 1975 (Cth).