Sellak v Sellak, estate of the late Corrado Simon Sellak; Sellak v Sellak (No. 2) [2016] NSWSC 396

Sellak v Sellak, estate of the late Corrado Simon Sellak; Sellak v Sellak (No. 2) [2016] NSWSC 396

Bradley and Scott were eligible persons and the will did not make adequate provision for their proper maintenance, education or advancement in life. Although both had conduct and estrangement issues, neither was disentitled; their financial needs were pressing and broadly comparable. Tracy's strong relationship with the deceased and modest financial position meant the Court should not make orders likely to force sale of the Oswald Street property. The appropriate course was to make equal costs inclusive provision of $340,000 for each son, reduce the grandchildren's benefits to $40,000 each, and leave Tracy substantially able to retain the Oswald Street property while bearing estate...

Jurisdiction
Australia
Judgment Date
09 June 2016
Procedural Posture
Family Provision Proceedings Under Chapter 3 of the Succession Act 2006 / Principal Judgment After Hearing; Orders for Provision Made
Outcome
Orders for family provision made in favour of Bradley Sellak and Scott Sellak.
Legal Topics
['family Provision' 'eligible Persons' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'estrangement' 'adult Children' 'costs Inclusive Family Provision Orders' 'adjustment of Residuary Gifts to Grandchildren']
['succession Law' 'equity'] ['family Provision' 'eligible Persons' 'adequate Provision for Proper Maintenance, Education or Advancement in Life' 'estrangement' 'adult Children' 'costs Inclusive Family Provision Orders' 'adjustment of Residuary Gifts to Grandchildren']

Case Brief

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Procedural Posture

Family Provision Proceedings Under Chapter 3 of the Succession Act 2006 / Principal Judgment After Hearing; Orders for Provision Made

Legal Issues

  1. 1 ['Whether Bradley and Scott were eligible persons under Succession Act 2006, s 57.' "Whether adequate provision for the proper maintenance, education or advancement in life of Bradley and Scott had been made by the deceased's will." 'If adequate provision had not been made, what provision should be ordered for Bradley and Scott.' 'Whether estrangement or conduct by Bradley or Scott should disentitle them from, or reduce, further provision.' "Whether further provision should be borne by Tracy's benefit under the will or by reducing the residuary benefits to the deceased's grandchildren." 'Whether costs inclusive family provision orders should be made.']

Ratio Decidendi

Bradley and Scott were eligible persons and the will did not make adequate provision for their proper maintenance, education or advancement in life. Although both had conduct and estrangement issues, neither was disentitled; their financial needs were pressing and broadly comparable. Tracy's strong relationship with the deceased and modest financial position meant the Court should not make orders likely to force sale of the Oswald Street property. The appropriate course was to make equal costs inclusive provision of $340,000 for each son, reduce the grandchildren's benefits to $40,000 each, and leave Tracy substantially able to retain the Oswald Street property while bearing estate...

Court Disposition

Orders for family provision made in favour of Bradley Sellak and Scott Sellak.

Orders

  • ['In variation of clause 4 of the will and in lieu of clause 5, Bradley Sellak is to receive a legacy of $340,000 from the estate of the deceased, subject to Orders 2 and 3.' 'In variation of clause 4 of the will and in lieu of clause 5, Scott Sellak is to receive a legacy of $340,000 from the estate of the...