Holley v Holley [2026] NSWSC 994 | Case summary

Holley v Holley [2026] NSWSC 994 | Case summary | Zoe

The deceased, Robyn Ann Holley, was born in April 1942 and died on 1 March last year at the age of 82. For convenience, and without intending any disrespect, I will refer to the members of the deceased’s family by their given names.
The deceased married Warren John Holley (“Warren”). He died in December 2014 after a long and debilitating period of ill health.
Together, the deceased and Warren had three children. They are:
Phillip John Holley (“Phillip”), who is the plaintiff and was born in December 1964;
Annette Gay Hanigan (“Annette”), who was born in August 1966; and
Vickie Ann Holley (“Vickie”), who was born in February 1969.
Phillip moved out of the family home in his 20s. He later married and had children, but is divorced and now lives alone in a rented house at Middle Dural. He describes himself as “semi-retired”.
Annette likewise moved out of the family home after leaving school. She is married with children, and lives in Queensland.
Vickie never married, and remained with her parents. She says that she helped to look after her father during his period of illness, and also was mainly responsible for looking after her mother after her father died.
The main asset in the deceased’s estate is a residential property at Cameo Street, St Clair. According to Vickie, it was bought by the deceased and Warren shortly before Warren’s death. Presumably his share of it passed to the deceased by survivorship, or by will (she appears to have been the sole beneficiary of his estate) after his death.
The deceased’s last will was made in late January last year, about 5 weeks before her death. The will appointed as the deceased’s executors and trustees Vickie and Peter John Snelgrove, a solicitor. The will provided that, after payment of funeral and testamentary expenses, Vickie was to receive the St Clair property (cl 7(b)). The residue of the deceased’s estate was to be distributed among the deceased’s three children in equal shares (cl 7(c)).
Clause 6 dealt specifically with a loan which had previously been made to Phillip. It provided:

Probate of the deceased’s will was granted to Vickie and Mr Snelgrove in January this year. In the inventory of property which accompanied the application for probate, the St Clair property was valued at $1 million. There was also $396,000 in bank accounts. The amount owing by Phillip under the loan referred to in cl 6 of the will was still $43,028. The inventory did not identify any other assets owned by the deceased.
According to the evidence, the executors later collected the sum of $5,600 which represented monies inherited by the deceased from Warren. This amount was not shown in the inventory and the delay in collecting the money following the deceased’s husband’s death more than 10 years before was not explained.
On 19 January this year, a few days after probate was granted, the executors caused the title to the St Clair property to be transmitted from the name of the deceased into Vickie’s name as beneficiary under the will. Vickie continues to live at the property.
The present proceedings were commenced by Phillip as the plaintiff in February this year. Vickie is named as the sole defendant. Mr Snelgrove has not been made a party to the proceedings. I did not find any explanation for this in the evidence.
Annette has also brought proceedings seeking a family provision order out of the deceased’s estate. Her proceedings were commenced in early April this year. Again, Vickie is the sole defendant.
Mediations took place in both matters in July but neither of them settled. Both remain pending in the Probate & Family Provision List.
The application before the Court was made by notice of motion filed in June this year. The notice of motion sought an order that the application “be listed for expedited hearing” and it came before me in the Expedition List. That was unusual. Ordinarily the Expedition List deals with claims for final relief; a motion which requires an urgent hearing for interim or interlocutory relief would be dealt with in the Duty List or the Applications List.
In the course of the hearing, counsel for Phillip asked me to expedite the whole proceedings. But there would be no point in doing so unless both Phillip’s proceedings and Annette’s proceedings were expedited and heard together. Counsel ultimately did not pursue the request. But despite the unusual course I did hear the application for interim provision in the Expedition List.

By agreement between the parties, the affidavits filed by Phillip and Vickie in the main proceedings were read on the application, but only on the basis that they were evidence of the cases presented by the parties on the substantive application for family provision. On this application, the Court is making no finding as to the accuracy and completeness of those affidavits.
There was also some supplementary evidence in the form of affidavits prepared for the purpose of the application by the parties’ solicitors. Mr Salvatore Russo acts for Phillip. Ms Alyssa Antcliffe acts for Vickie.
Plaintiff’s evidence: According to Phillip, he left school when he was about 16 years old, becoming an apprentice bricklayer. He completed his apprenticeship and continued to work thereafter as a bricklayer.
Phillip deposed that he is in poor health and had to stop work because of previous injuries sustained while working. He has received no income since November 2024. He does not receive social security payments as he does not wish to be a burden on the State.
Phillip received an insurance payout of $248,000 under a total and permanent disability (“TPD”) policy in March 2025. He deposed that he used $35,000 to repay personal debts and $55,000 to meet tax liabilities. A further $18,000 was spent on buying a caravan. The remainder of the money was used for living expenses.
In the affidavit filed in support of his originating summons, Phillip deposed that he had only about $17,000 left in his various bank accounts. By mid-June, he deposed that this figure had fallen to $2,000.
As already mentioned, Phillip lives in rented accommodation. He deposed that he owns no real property. He does own a number of cars and other chattels. He identified these as two Toyota Land Cruisers (which he estimated as being worth $30,000); tools of trade ($2,500); two caravans ($25,000); a boat ($5,000); and woodwork machinery ($14,000) “used on a regular basis if and when I am working”. He has $10,000 in superannuation.
Phillip also referred to the loan described in clause 6 of the deceased’s will. He deposed that he believed the loan had been $40,000, rather than $43,028. He also deposed to having made a $1,000 payment towards the debt before his mother’s death.
Phillip deposed that he had always maintained a close and loving relationship with his parents. Up until his father’s death, he would visit them frequently. After his father died, the visits to his mother became less frequent but were still regular.
Phillip deposed that during his father’s lifetime there had been frequent discussions about how his parents’ assets would be left when they died. During these discussions it was always said that the estate was to be divided between the three children equally. His father was particularly clear about this and his mother agreed. His sister Annette had also told him that she had always understood that the family assets would be left to the three children equally. Phillip professed himself to be unsure as to why the deceased would have departed from that approach in her January 2025 will.
Defendant’s evidence: In Vickie’s affidavit, she explained the fact that she had never married and had never left home as being the result of a childhood trauma in which Phillip was involved. I will not go any further into this, as it is not directly relevant for present purposes and Vickie’s account may be contested. Vickie also took issue with Phillip’s evidence on various matters of detail which are unnecessary to discuss.
Vickie acknowledged that she had always been, and remained, in employment (apart from a period in 1990-1991 when she was unable to do so owing to an injury). But up until her father’s death, she paid weekly board to her parents. After the purchase of the property at St Clair, she assumed responsibility for maintaining it, paying for the expenses of tradesmen when required.
Vickie deposed that she had no significant assets, apart from $280,000 in superannuation. She earns about $1,100 per week after tax.
Vickie deposed that, up until 2013, she and her mother shared the task of looking after Warren, whose health, as already noted, was poor. In December 2013, the deceased was diagnosed with depression. Thereafter Vickie assumed primary responsibility of looking after Warren, and, after his death, the deceased herself.
According to Vickie, she received little, if any, help from her siblings. They wanted the deceased to go into a nursing home but she did not. It was only through Vickie’s efforts that she was able to continue to live at the St Clair property. Vickie deposed that the deceased expressed dissatisfaction with Phillip and decided to leave the St Clair property to her in recognition of her efforts in looking after her parents.
In an affidavit made in late July, Ms Antcliffe provided some updated financial information about the estate. The executors have been trying to obtain release of the funds in the deceased’s bank account from ANZ, so far without success, but there was no reason to think that they would not eventually do so. A bank cheque has however been obtained (but not, it seems, cashed) for the $5,600 from Warren’s estate. The sum of $43,028 remained outstanding under the loan referred to in clause 6 of the deceased’s will. The total value of the estate assets (leaving aside the St Clair property, but including the debt owing by Phillip) as at 2 July was $446,000.
Ms Antcliffe also provided up-to-date information about the estate’s liabilities. A reimbursement of $1,700 is owed for burial expenses and other bills of the deceased. Probate costs are $6,300. Costs incurred in Annette’s proceedings are $36,000. Costs incurred in these proceedings are $53,000. Two interlocutory costs orders have been made against Phillip; Ms Antcliffe estimates the costs recoverable under those orders as $5,000-$10,000.
The will provides (cl [5(c)]) that Mr Snelgrove is entitled to charge for work undertaken as executor according to the standard rate for his professional fees. Ms Antcliffe deposed that the current estimate of his costs for acting as executor is $12,000. Although not mentioned by Ms Antcliffe, the will also provides (cl [5(a)]) that Vickie is entitled to commission for acting as executor.

On 7 May, Mr Russo wrote to Ms Antcliffe asking, given Phillip’s “impecuniosity”, that Vickie “release part of [his] entitlement under the will”. Mr Russo estimated the residue as approximately $600,000 and noted that $42,000 was owing under the loan referred to in clause 6. He requested an “interim distribution” for Phillip of $150,000 so as to fund the proceedings and provide for daily “necessities of life”.
On the following day, Ms Antcliffe responded. She stated that, on current figures, the net value of the residue was $445,000. She pointed to the estimates of costs in Phillip’s proceedings ($60,000-70,000) and the proceedings brought by Annette ($55,000). It was unclear how much of the residue would ultimately be available for distribution and “as such the executors are unable to distribute any funds from the estate”. She invited Phillip to reconsider his position and withdraw his application.
By letter dated 11 May, Mr Russo rejected this proposal. Ms Antcliffe was assuming that the gift of the St Clair property to Vickie would not be disturbed but this was “an unreasonable proposition given the size of the estate”. The assumption that the two applications for family provision would be unsuccessful was also “clearly unrealistic”.
Phillip’s notice of motion was filed on 15 June. It sought an order that Vickie “cause the Estate to pay” $150,000 to Phillip (via Mr Russo’s trust account).
On 19 June, Ms Antcliffe responded to the filing of the notice of motion. She stated that the net value of the estate, including the $43,000 debt referred to clause 6 of the will, and allowing for liabilities incurred to date, was less than $400,000. The maximum distribution which could be made to the three children as beneficiaries of the residue therefore did not exceed $133,000 each. The clause 6 debt would have to be deducted from Phillip’s share, so he would receive, at most, $90,000.
Furthermore, Ms Antcliffe stated, the ongoing litigation gave rise to additional potential liabilities of the estate. Those liabilities had to be determined before a distribution of funds could responsibly be made by the executors. Nothing could therefore be paid. Ms Antcliffe invited Mr Russo to withdraw the application.
Ms Antcliffe’s proposal was rejected by Mr Russo. He replied that Ms Antcliffe’s calculations indicated that Phillip was “entitled to a minimum of $133,000”, and this would be accepted “at this point in time”, but only “on a without prejudice basis to settle the notice of motion”. Ms Antcliffe demurred, and, following an unsuccessful mediation, Phillip’s lawyers pressed on with the motion.
At the hearing, Phillip’s personal circumstances were put in the forefront of his application by his counsel. Counsel referred to Phillip’s lack of income and assets, and to his poor health, submitting that the interim payment as sought would alleviate, in part, the financial hardship Phillip was experiencing.
Counsel referred me to the recent decision by Slattery J in Re Shoushani [2025] NSWSC 1335 at [99]-[100], concerning the circumstances of which an executor may have a duty to make an interim distribution of pecuniary legacies or interest in residue even though the administration of the estate has not been completed. In turn, his Honour relied on the statement of principle by JC Campbell J in Gonzales v Claridades (2003) 58 NSWLR 188 at [47]-[50].
In Gonzales Campbell J relevantly stated (at [47]-[48] and [50]):

Apparently picking up on the reference to consent in the passage quoted from In Re Ralphs; Ralphs v District Bank Ltd [1968] 1 WLR 1522, counsel noted that no application in the present case had been made by the executors for judicial advice from the Court. Counsel submitted that a distribution could be made from the plaintiff’s share or residue under the will (taking into account the money that he was “said to owe” the estate). There was “no likely prospect” that that distribution would be reduced as a result of further developments in the administration of the estate. Counsel submitted that there was “little to do” in the administration, apart from dealing with the family provision claims.
Part of counsel’s argument that there was little to do in the administration of the estate involved noting that the St Clair property had already been distributed to Vickie. But at the same time counsel criticised the executors for having taken this step. They had not followed the public notice procedure set out in s 92 of the Probate and Administration Act 1898 (“PAA”) and s 93 of the Succession Act. Counsel submitted: “Rhetorically ... the transfer of the property would appear to be inconsistent with the fiduciary duties owed” to Phillip and Annette.
The relief claimed in Phillip’s summons is an order that “provision” be made for him “in such amount as the Court determines”, “out of the estate and/or notional estate” of the deceased. For reasons given in Theocharous v Theocharous [2025] NSWSC 45 at [45]-[50], I considered that inadequate. The provisions in ss 92 and 93, discussed below, reinforce the point.
I therefore asked counsel to specify the order for provision actually sought on behalf of Phillip. Counsel replied that, in lieu of the gift of one third of the residue, a legacy in a fixed amount would be sought. Counsel identified the figure as $400,000. For practical purposes, as counsel accepted, the residue would not be enough, and the house would have to be sold. Although counsel did not identify precisely how the claimed legacy would be borne, Phillip would clearly have to override the gift of the St Clair property to Vickie.
In light of the reference in counsel’s submissions to the cl 6 debt being “said to be owed” to the estate, I asked counsel whether or not Phillip accepted that he was liable to pay the debt to the estate. Counsel suggested that the debt went back to Warren’s lifetime and was, or at least might be, statute barred. At other points in the argument, counsel appeared to accept that the debt was owing, or at least should be deducted from Phillip’s legacy.
Counsel for Vickie likewise invited me to apply the principles stated by Campbell J in Gonzales. But in counsel’s submission, the application of those principles led to the opposite result to that for which counsel for Phillip had contended.
Counsel submitted that the estate’s ultimate position was uncertain because the two family provision claims might succeed or fail. As to Phillip’s claim, it was submitted that Vickie’s financial circumstances were poor and that the gift to her under the will should not be disturbed. If the claim failed, then, on Phillip’s own evidence, he would be unable to meet any costs liability from his own assets; if it succeeded, the residue would be further eroded. Similar considerations applied to Annette’s claim, about which the Court had little evidence.
Counsel also referred me to the following statement by Young CJ in Eq in Indyk v Wiernike [2006] NSWSC 868 at [23]:

Before addressing the application itself, I will say something about two issues in the administration which arise out of the argument.
Transmission of St Clair property: In suggesting that the transmission of the property involved a breach of fiduciary duty on the part of the executors, counsel for Phillip referred to case law on self-dealing by executors. That case law does not apply here. The duty of the executors was, and remains, to distribute the assets of the estate as rapidly as that may reasonably be done: Ford v Princehorn; Estate of Ford [2012] NSWSC 1165 at [28], citing Mavrideros v Mack (1998) 45 NSWLR 80 at 88 [104].
Nevertheless, it seems that the executors failed to follow the procedure of giving public notice of distribution of the property before going ahead with the transmission. PAA s 92 provides that if due notice has been given, the time specified has expired, and the assets are distributed at least six months after the death of the deceased, the executors are not liable “in respect of” those assets unless the executors had notice of the claim at the time of the distribution. SA s 93 makes specific provision where the same conditions are satisfied with respect to applications for a family provision order “affecting the estate”.
It is true, as counsel for Vickie pointed out, that ss 92 and 93 impose no prohibition on executors distributing estate assets without following the notice of procedure. The transmission of the St Clair property to Vickie was valid and effective. All the failure to use the notice of procedure means is that the transmission took place at the executors’ risk.
Of course it was desirable for the executors to transfer the property to Vickie as quickly as that could reasonably be done. But I do not think that the accrual of outgoings necessarily provided a justification for what was done.
I would have thought that, at least ordinarily, payment for utility services such as electricity and gas should be made by the occupant of the property rather than the estate. And while it is true that rates and other outgoings attributable to ownership of the property fall on the estate, during the period of administration, the executors also have the right to let the property out. There seems to be no reason to think that the market rental value of the property would have been less than the council rates.
Nor do I think it is completely accurate to say that the property has somehow passed out of the estate. The estate has not been fully administered and Vickie remains one of the executors. Should the administration expenses ultimately exceed the available revenue, those expenses would need to be defrayed out of the property. Presumably, in that event, Vickie could not resist making the property available to the extent necessary to meet those expenses. It seems to me that, if he has not already done so, Mr Snelgrove should obtain undertakings from Vickie that, if necessary, she will transfer the property back into the name of Mr Snelgrove and herself for that purpose, and that she will not encumber the property in the meantime.
What I have just said about Vickie being required to make the St Clair property available applies to expenses of administering the estate (including the costs of the proceedings) for which Vickie is jointly and severally liable as executor. It does not strictly speaking apply to Vickie in her capacity as beneficiary. But the Court may in any event, should it make an order for further provision in favour of Phillip or Annette, designate the property in Vickie’s hands as notional estate: SA s 79.
Clause 6 debt: As already noted, there appears to be some question about whether Phillip is actually liable to repay the sum of $43,028 specified in the will. While the effect of clause 6 appears to be that the executors are required to deduct the sum from Phillip’s share of the estate, whether he is legally liable or not, the question of liability still has some, albeit minor, significance for the purposes of the administration.
Although counsel for Phillip referred to the statute of limitations, and the will suggests that the loan was originally made when Warren was alive, it does not necessarily follow that the loan is statute barred. The cause of action may have been confirmed by acknowledgement or part-payment: Limitation Act 1969, s 54. Indeed, Phillip himself claims to have repaid part of the loan before the deceased’s death, although it is not clear whether that repayment took place before the will was made.
If the debt is repayable independently of the will, failure to pay it may give rise to a liability for interest, at least from the date when it fell due, at court rates. And Phillip would be obliged to pay it now. Although the executors may choose to allow him to set the debt (together with an appropriate charge for interest) off against his ultimate legacy, there is no obligation to do so.
It seems to me that, if the executors have not already done so, they should give consideration to whether Phillip is liable to repay the debt independently of clause 6 of the will. If agreement cannot be reached on this question, the executors should consider bringing it to a head by making a cross claim in these proceedings.
Interim distribution: The Court’s power to order an interim distribution arises in its jurisdiction over the administration of estates. The Court has power to make any order which could be made in administration proceedings, including an order requiring the executors to do any act which the Court may consider appropriate for the conduct of the administration: Uniform Civil Procedure Rules 2005 r 54.3.
The fact that the application is made in the Court’s administrative jurisdiction has a number of consequences for present purposes.
As Campbell J made clear in Gonzales, the question is whether, and if so, how much of, the beneficiaries’ entitlements under the will can be satisfied by way of interim payment before the administration has been completed. If there are monies which will not be needed, they should be paid out. If no monies can be made available, then the beneficiaries must wait. Factors personal to the beneficiaries, such as their financial circumstances, are of little, if any, relevance.
Where what is sought is a distribution of part of the residuary assets, the executors’ duty to treat beneficiaries equally means that the amount distributed should be shared between them in the proportions set out in the will. There would be no justification for making an interim distribution in favour of Phillip alone, whether because of his personal circumstances, or for any other reason.
The interim distribution must be an interim distribution of entitlements under the will. Phillip’s claim to have a provision made in his favour out of the St Clair property is irrelevant. Any interim distribution can only be an advance of Phillip’s share on the residue of the estate.
For similar reasons, the executors will be obliged to give effect to clause 6 in making any interim distribution. The outstanding amount of the debt (together with any interest for which Phillip may be liable) must be deducted from any distribution which is made to him.
On the evidence before me, the value of the residue is less than $450,000. Even if the executors are wholly successful in the proceedings, they may not recover all of the costs they have, and will in future, incur. Furthermore, to the extent that either Phillip’s or Annette’s claim succeeds it is reasonable to suppose that the Court would focus the terms of any orders for provision so that the residue was exhausted before there had to be recourse to the St Clair property (to the extent that this was consistent with the entitlements which the Court considered appropriate).
In these circumstances I think that the executors are clearly justified in taking the position, at least at this point, that making an interim distribution out of the residue presents an unacceptable risk. In this regard, I note that unless the Court is satisfied that at least $150,000 could be distributed, Phillip would receive no substantial cash benefit from the distribution in any event.
Interim provision: SA s 62(1) provides:

Counsel for Phillip did not refer to this provision in his submissions. Nevertheless, I will consider whether the application can be supported by reference to it.
The power under SA s 62(1) is a power to be exercised in aid of Phillip’s substantive application for provision. It is therefore not constrained by the terms of the will or by the executors’ duties to treat beneficiaries equally. Moreover, Phillip’s personal circumstances are clearly a relevant discretionary factor.
The only express condition imposed by s 62(1) is that the Court be satisfied that the final order made by the Court “would be” no less favourable than the interim order proposed. That requires some consideration of the prospects of success of Phillip’s claim as articulated in his counsel’s submissions.
Phillip cannot realistically claim to have made any substantial contribution to the assets forming part of the deceased’s estate. Nor does he claim to have forgone any economic opportunities in providing financial or personal assistance to the deceased of a type which might give rise to a moral obligation to make some sort of provision to him on that account.
Phillip does allege that an equal division of the estate was something that, during Warren’s lifetime, Warren wanted and the deceased agreed to. If that were in fact so, and there had been no later relevant change of circumstances, there might be an argument about whether, at least as far as the deceased’s estate derived from assets paid for or contributed to by Warren, this would be a relevant factor.
But Phillip has not put his case in that way. He does not seek to have the alleged agreement for equal distribution reinstated, but rather seeks a lump sum payment. Depending on the result of Annette’s claim and the incidence of costs, this might easily prove to be more than the amount he would have received on a one-third distribution of the estate.
In reality, Phillip’s claim is simply that the gift in his favour of one third of the residue is not, or may not be, enough to satisfy his “needs”.
The Court may of course take Phillip’s financial circumstances, and his “needs”, into account under SA s 60(2)(d). Whether it does so, and if it does, the weight of those considerations, is another matter. It is wrong to think that, once Phillip has demonstrated that he was sufficiently “impecunious”, the Court will necessarily conclude that the provision made for him in the will was inadequate and should be replaced by a provision which will cover his “needs”.
It would be quite possible for the Court to conclude that, if (as it appears) the deceased bore no responsibility for Phillip’s financial position, his unmet “needs” are not enough to require a departure from the balance struck by the deceased in the will. And even if “needs” were to be treated as the touchstone, there will be a competing claim at least from Vickie based on her own “needs”.
In these circumstances, the confident assertions in Mr Russo’s correspondence about Phillip’s claim succeeding and extending to the St Clair property were ill-judged. It is notable that in his submissions, counsel for Phillip did not support those assertions and instead submitted only that Phillip’s claim had reasonable prospects of success. In effect he accepted that I could not be satisfied that Phillip’s claim will necessarily succeed at all.
Of course, if the claim fails, Phillip will retain his entitlement under the will to one third of the residue. I will assume for the sake of argument that, in that event, that entitlement would fall within the “provision” made in Phillip’s favour “in the final order” for the purposes of s 62(1). But for the reasons I have already given, I cannot be satisfied that, if his claim fails, Phillip will necessarily receive anything after payment of the clause 6 debt and the costs already awarded against him, or which may be awarded in future.
For these reasons, Phillip’s application cannot be supported under SA s 62(1). It is unnecessary to go into the discretionary questions which arise from his dissipation of the TPD payment he received last year.

Holley v Holley

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Background and procedural history

Application for interim payment

Evidence

Grounds for application and parties’ submissions

Conclusions

Orders

Parties

Legislation Cited (7)

Cases Cited (6)