Stollery v Stollery

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”).

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].

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.

The Deceased died on 9 September 2013, aged 76.

He was survived by:

When he died, the Deceased also had six grandchildren. They are the children of Mark and his wife, Dianne Stollery; Amanda who is aged 27, Sarah who is 26 and Grant who is 21; and the children of Mr Stollery and his then de facto wife Ms Lynette Keep, Lincoln who is 20, Curtis who is 18 and Andrew who is 16.

I will refer to these individuals by their first names. I do so for convenience, and without intending disrespect to any of them.

By his will dated 9 September 2013 (that is the day he died) the Deceased appointed Dianne as his executrix and:

Probate of the will was granted to Dianne on 27 February 2014.

The assets of the estate comprise:

The net value of the estate is thus in the order of $3.5 to 3.8 million.

On the day he died, and made his will, the Deceased made a statutory declaration in the following terms:

Enid is now incapable of managing her affairs and is in care. She has not resided at Bexley for some time. It appears highly unlikely that she will be able to avail herself of the right of residence provided for in the will.

Enid’s position only emerged during cross-examination of Dianne. That led to the adjournment of the proceedings from 8 December 2015 to 8 February 2016.

On 14 December 2015 I appointed Mr Jeremy Glass, solicitor, as Enid’s tutor.

In that capacity, Mr Glass has very recently commenced proceedings under the Act seeking an order for provision for Enid.

On 8 February 2016 I made directions for the service of evidence in those proceedings. It seems likely those proceedings will be resolved consensually on the basis of an order for provision for Enid sufficient to accommodate her need for ongoing care (in lieu of the right of residence at Bexley provided for in the will).

Mr Smith, who appeared before me for Mr Stollery, and Mr Bors, who appeared for the estate, agreed that I could nonetheless determine Mr Stollery’s claim but defer pronouncing final orders until such time as Enid’s claim is finalised.

In his evidence-in-chief, Mr Stollery described himself as a professional punter.

In cross-examination he said:

In his affidavit Mr Stollery said:

The “prestigious city apartment” that Mr Stollery referred to was the Connaught building in Liverpool Street, Sydney, overlooking Hyde Park, where he lived for a number of years in or around the early 1990s.

In cross-examination he said:

And later:

Mr Stollery said he did not maintain a bank account, had lodged no income tax returns and paid no income tax since the mid 1990s.

In support of his application, Mr Stollery adduced no evidence of his financial position between 1990 and 2014. Mr Stollery said he kept no records of his gambling activities and said he never gave any thought to doing so.

In his affidavit of 16 October 2014, filed in support of his summons, Mr Stollery said:

Mr Stollery annexed to his affidavit a statement of his income and expenditure as follows:

The implication of this evidence was that Mr Stollery’s annual income was in the order of $45,000 and that he had expenses to match.

In fact, Mr Stollery had no idea whether his average monthly “winnings from dog and horse races” was the figure of $3,795 stated in that summary.

Rather, he took the rent that he is paying on a property in Mandurah, south of Perth, and added his estimate of the nominated expenses and asserted or assumed that his average winnings must equal a total of those amounts.

In an affidavit sworn on 10 November 2015, shortly before the commencement of the hearing, Mr Stollery said:

Annexure “B” to that affidavit was as follows:

The implication of this evidence was that Mr Stollery’s annual income at the time of swearing his 10 November 2015 affidavit was in the order of $26,000 and that his expenses exceeded, to a significant degree, that income.

In cross-examination Mr Stollery agreed that this was wrong.

Cross-examination of Mr Stollery on this topic showed that Mr Stollery’s summaries of income and expenditure bore no relationship to his true financial position.

Indeed, my conclusion is that Mr Stollery has made no effort to place before the Court an accurate statement of his financial position.

Examination of Mr Stollery’s Commonwealth Bank of Australia credit card statements for the period 12 months before the commencement of these proceedings in October 2014 shows that between 16 October 2013 and 7 October 2014 Mr Stollery made deposits to his credit card in the order of $80,000.

During that period he also generated, from his gambling activities, sufficient to pay approximately $25,000 in rent.

The evidence thus reveals that during that 12 month period Mr Stollery spent something in the order of $100,000.

Included in the expenses recorded in the credit card statements are numerous domestic airfare tickets, mainly associated with Mr Stollery’s travel from Western Australia to the east coast to visit Ms Keep, and their three children, three international holidays with Ms Keep and the children, numerous meals at restaurants (on something approaching a weekly basis) and many other items of discretionary expenditure.

In cross-examination Mr Stollery said that his object was “just to survive” and that “I’m too old to be saving money at 54”.

However, insofar as Mr Stollery’s credit card statements are any guide, he is doing very much better than simply “surviving”.

It is true that Mr Stollery’s credit card statements for the period October 2014 to November 2015 show a smaller amount of deposits (something in the order of $40,000).

However, I approach this evidence with some caution because, as Mr Bors submitted:

In these circumstances, as I have said, the conclusion to which I have come is that Mr Stollery has made no effort to place before the Court an accurate statement of his financial position. Insofar as I am able to draw conclusions as to Mr Stollery’s true financial position from his credit card statements, it is nothing like the position as portrayed in his affidavit evidence.

An applicant for provision under the Act must place before the Court an accurate statement of his or her financial position. Otherwise, the Court is in no position to assess whether the provision made for the applicant in the will in question is otherwise than adequate.

As Campbell J (as his Honour then was) said in Collings v Vakas [2006] NSWSC 393 at [67]:

Mr Stollery did not disclose to the Court anything like the “whole picture” of his financial situation; not even in “broad outline”.

Based on Mr Stollery’s evidence, I have no idea what his true financial position is, save that it is nothing like what he swore to be true in the affidavits filed in support of his application.

For that reason alone, I would dismiss his application.

In any event, for the reasons that follow, I am not satisfied that adequate provision was not made for him in the will.

Like Mr Stollery, the Deceased was a professional bookmaker.

Mr Stollery had a difficult relationship with the Deceased. In his affidavit he said:

Mr Stollery moved to the Central Coast and obtained employment with a bookmaker.

Approximately 10 years later, in the mid 1980s he returned to Sydney and for a short time lived at Bexley. During this time he worked with the Deceased.

In his affidavit Mr Stollery said:

In cross-examination, Mr Stollery gave the following evidence:

This passage gives a good insight into the kind of evidence that Mr Stollery gave before me. He had no records of his financial history and very few records of his current financial position.

During the time that Mr Stollery was working with the Deceased, the Deceased said to him:

In his affidavit Mr Stollery said:

Mr Chauncy, who said he was well acquainted with the Deceased, and had known him for more than 30 years, gave evidence that:

Another long standing friend of the Deceased, Mr Garry Carson, worked for many years with the Deceased. Mr Carson said:

So far as concerns the purchase of Berkshire Park, Mr Carson gave this evidence:

In cross-examination Mr Carson gave this evidence:

Settlement of the sale from Mr Chauncy (and his wife) to the Deceased took place in or about April 1999. The transfer is dated 7 April 1999. The consideration shown on the transfer was $255,000. Mr Chauncy said in cross-examination that this was the final agreed sale price and that he decided to give to the Deceased the furniture mentioned in their conversation referred above.

Consistently with Mr Carson’s recollection, the Deceased mortgaged the Berkshire Park property to the CBA. According to the Office of State Revenue’s notation on the mortgage, the amount secured was $120,000.

Mr Stollery was not able to point to any documentary evidence supporting his contention that he contributed $135,000 to the purchase price of Berkshire Park. His case is, however, supported (although only inferentially) by Mr Carson’s evidence of conversations he had with the Deceased.

What can be said is that as the ultimate purchase price of Berkshire Park was $255,000, and as the Deceased borrowed $120,000 from the CBA to fund the purchase, if Mr Stollery did contribute $135,000 to the purchase of the property, that contribution represented the totality of the Deceased’s equity in the property at the time of settlement.

I will return to the question of Mr Stollery’s alleged contribution to the purchase of Berkshire Park when considering the circumstances of its sale in 1994.

A short time after the sale of Berkshire Park to the Deceased settled, the Deceased and Mr Stollery fell out.

Mr Stollery described the circumstances in his affidavit as follows:

So far as concerns his “sleeping habits”, Mr Stollery explained in cross-examination that at this time he was bookmaking in relation to night greyhound racing at Wentworth Park and would often work until the early hours of the morning.

In cross-examination Mr Stollery gave this evidence:

Not only did Mr Stollery not ever return to the Berkshire Park property, he had virtually no contact with the Deceased after this incident.

Mr Stollery said he made no further attempt to contact the Deceased, and that apart from a small number of occasions on which he saw his father “at the track” he did not see the Deceased again.

The term “estrangement” does not appear in s 60 of the Act. As Hallen J observed in Doshen v Pedisich [2013] NSWSC 1507, it does not describe the conduct of either party but is “the condition that results from the attitudes, or conduct, of one, or both, of the parties” (at [168]).

There are no “rules” about how the Court deals with circumstances of estrangement when considering applications for provision under the Act. It is a factor to be taken into account, along with all others.

In this case, it provides an explanation (perhaps not the only explanation) for the Deceased’s decision to leave only a nominal bequest to Mr Stollery.

Each of Dianne, Amanda, Sarah and Grant gave evidence that the Deceased had said to them that the reason that he was estranged from Mr Stollery was because of his belief that Mr Stollery had stolen money from him.

Mr Chauncy gave evidence to the same effect. He said that in around 1988 or 1989 that he and the Deceased had this conversation:

Mr Stollery denied, vehemently, that he had stolen any money from the Deceased.

In this regard, Mr Carson gave this evidence in cross-examination:

I accept Mr Carson’s evidence. He had nothing to gain by giving this evidence. He was, as he said, a good friend of the Deceased. Nonetheless the Deceased had accused him (and many others) of “robbing” him (including not only Mr Stollery, but also Mark).

Mr Carson’s evidence enables me to conclude that it is very likely that, as Dianne, Amanda, Sarah and Grant said (see below), the Deceased had accused Mr Stollery of stealing from him and had stated to them (although he did not say this in the statutory declaration he made on the day he died) that this was one reason why he proposed to make only modest provision for Mr Stollery in his will. However, in light of Mr Carson’s evidence, I cannot reach any conclusion as to whether there was any truth in the Deceased’s accusations.

In or about 1996, the Deceased sold the Berkshire Park property for $400,000.

Mr Stollery heard of the sale, but made no demand on the Deceased for the return of the $135,000 that he said he contributed to the purchase price of the property.

In that regard, Mr Stollery gave this evidence in cross-examination:

Later he gave this evidence:

And later:

Thus Mr Stollery’s explanation for not seeking from the Deceased any payment from the proceeds of sale of the Berkshire Park property was that:

Mr Smith urged me to exercise caution in relation to the answers that Mr Stollery gave to my questions set out at [89] above (where Mr Stollery agreed that he did not see himself as having any entitlement to a return of funds). However, having seen Mr Stollery give the evidence that I have set out above, I have no doubt that he understood my question. He had no hesitation in giving his answer “that’s a no, yes”.

I regard as particularly significant Mr Stollery’s statement that “I wouldn’t change it either” and that “if I had my time again, I wouldn’t do it”. That comment was made spontaneously and not responsively to the question Mr Stollery was asked. It revealed, vividly in my opinion, that Mr Stollery did not then consider he had any claim on the Deceased concerning the Berkshire Park property.

Overall, Mr Stollery’s conduct in the face of the Deceased’s sale of Berkshire Park causes me to have grave reservations about Mr Stollery’s untestable assertion that he contributed $135,000 to the purchase of Berkshire Park (notwithstanding Mr Carson’s evidence).

Even if Mr Stollery did make the contribution that he claims to have made, his conduct in 1994, after he knew the Deceased had sold Berkshire Park makes clear that he did not see any injustice associated with the Deceased retaining the whole of the proceeds of sale of Berkshire Park. Whether that was because Mr Stollery did not in fact make any financial contribution to the purchase of that property, or whether that was because Mr Stollery thought he had been adequately rewarded by sharing equally with the Deceased the bookmaking business they conducted together, Mr Stollery’s evidence makes clear to me that he then abandoned any claim he might otherwise have had against the Deceased arising from the business relationship together.

As I have mentioned, Mr Stollery was in a de facto relationship with Ms Keep. They have three children.

Mr Stollery’s evidence was that his de facto relationship with Ms Keep ceased in 2012.

Mr Stollery gave evidence that he retains a cordial relationship with Ms Keep. The evidence reveals that he regularly flies from Perth to the east coast of Australia to visit Ms Keep in order to keep in touch with his children.

However, I accept Mr Smith’s submission that there is insufficient evidence on which to base a finding that Mr Stollery and Ms Keep are now in a de facto relationship.

I found that to be a ring of truth in this evidence given by Mr Stollery in cross-examination:

Mr Smith devoted a considerable part of his closing submissions to analysis of the financial position of Amanda, Sarah and Grant.

I do not find it necessary to engage in a detailed assessment of their financial position. They are not claimants. They are the selected objects of the Deceased’s testamentary bounty. It is not for Amanda, Sarah and Grant to justify their position as beneficiaries of the estate.

Nonetheless I will consider their financial position, albeit briefly.

Amanda is now 27. She holds a Master’s degree in architecture from the University of Sydney. She has studied in Berlin and completed an internship in Tokyo and at the Guggenheim in New York. She is currently employed by a firm of architects in Sydney earning $55,000 per annum. She lives at home with her parents. She has a HECS debt in the order of $19,000.

Amanda gave evidence that she had this conversation with the Deceased, very shortly before he died:

I was concerned about one aspect of Amanda’s evidence, contained in the following passage of cross-examination:

There was evidence before me that five of the greyhounds registered in Amanda’s name had, at the time of the hearing, won total prize money of $198,862.

Amanda’s evidence suggests that her father, Mark, has arranged for a bank account relevant to his own greyhound racing business to be set up in Amanda’s name and has caused the greyhounds to which Amanda referred to be registered in her name.

I will invite submissions from Mr Bors as to why I should not refer that evidence to the Greyhound Racing Authority for its consideration.

Sarah gave this evidence of a conversation she had with the Deceased a number of weeks before he died:

Sarah is 26 years of age. She has studied dancing in the United States of America, toured internationally and worked for the Sydney Dance Company. She is presently employed as a dance teacher and performer.

Grant gave this evidence of a conversation he had with the Deceased shortly before he died:

Grant is 22 years of age. He has been offered placements to study law at two universities this year and intends to accept one of those offers. He is living at home with his parents.

Grant also gave this evidence:

Grant also said that:

This evidence suggests that Mr Mark Stollery has arranged for a number of bookmaker stands to be registered in Grant’s name because of proceedings involving the National Australia Bank.

Again, I will invite submissions as to why this evidence should not be referred to the Greyhound Racing Authority.

From an estate worth something in the order of $3.5 to $3.8 million, the Deceased left Mr Stollery a nominal legacy; something like 0.25 per cent of his estate.

Nonetheless, for the reasons I have outlined above, my conclusion is that Mr Stollery’s claim fails as I am not satisfied that he has established that the Deceased did not make adequate provision for him.

I am not satisfied that Mr Stollery has placed before the Court evidence of his true financial position. I am therefore not satisfied that I am able to make any assessment of what his true financial needs are (if any).

It is not incumbent upon a respondent to a family provision case to elicit from the applicant for provision the truth in relation to the applicant’s financial position. It is the application’s duty to place before the Court, candidly and fulsomely, the applicant’s financial position.

Further, there has been no contact between Mr Stollery and the Deceased for almost 25 years.

The estrangement between Mr Stollery and the Deceased was deep and long lasting.

Finally, such contribution as Mr Stollery may have made to the Berkshire Park property cannot, in my view, be given any significant weight in assessing the question of adequacy for provision.

If Mr Stollery did make the contribution he claims to have made to the purchase of Berkshire Park he was content to let the cards lie where they fell when he learned of the Deceased’s later sale of the property.

As he said, even now, he “wouldn’t change it”.

The order I propose to make is that Mr Stollery’s application be dismissed.

I will defer further consideration of the matter until Enid’s application for provision has either been heard or resolved.