Sim v Public Trustee, White v Public Trustee [2005] NSWSC 751

Sim v Public Trustee, White v Public Trustee [2005] NSWSC 751

Neither Plaintiff demonstrated that she had been left without adequate provision for her proper maintenance. Carolyn and her husband had income exceeding disclosed expenditure and could meet mortgage commitments, and her quantified surgery cost did not take account of private health and Medicare refunds. Lynette and her husband had substantial net assets, superannuation, income, investment properties and a comfortable lifestyle. Because the threshold requirement was not satisfied for either Plaintiff, both summonses were dismissed. The Court also stated that, if it had been necessary to exercise discretion, the deliberate estrangement from the Deceased would have led the Court to refuse...

Jurisdiction
Australia
Judgment Date
28 July 2005
Procedural Posture
Family Provision Claims Under the Family Provision Act 1982 / Judgment After Hearing of Two Summonses Heard Together
Outcome
Both summonses dismissed.
Legal Topics
['claims by Adult Children' 'adequate Provision for Proper Maintenance' 'estrangement From Deceased' 'testamentary Beneficence' 'applicant Financial Circumstances' 'costs of Family Provision Proceedings']
['succession' 'family Provision'] ['claims by Adult Children' 'adequate Provision for Proper Maintenance' 'estrangement From Deceased' 'testamentary Beneficence' 'applicant Financial Circumstances' 'costs of Family Provision Proceedings']

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Procedural Posture

Family Provision Claims Under the Family Provision Act 1982 / Judgment After Hearing of Two Summonses Heard Together

Legal Issues

  1. 1 ['Whether Carolyn Dianne Sim was left without adequate provision for her proper maintenance out of the estate of Rose Ellen Jones.' 'Whether Lynette Helen White was left without adequate provision for her proper maintenance out of the estate of Rose Ellen Jones.' "Whether each Plaintiff's estrangement from the Deceased was relevant to the exercise of the Court's discretion to make a family provision order." 'Whether the financial and material circumstances of each Plaintiff justified provision from the estate.']

Ratio Decidendi

Neither Plaintiff demonstrated that she had been left without adequate provision for her proper maintenance. Carolyn and her husband had income exceeding disclosed expenditure and could meet mortgage commitments, and her quantified surgery cost did not take account of private health and Medicare refunds. Lynette and her husband had substantial net assets, superannuation, income, investment properties and a comfortable lifestyle. Because the threshold requirement was not satisfied for either Plaintiff, both summonses were dismissed. The Court also stated that, if it had been necessary to exercise discretion, the deliberate estrangement from the Deceased would have led the Court to refuse...

Court Disposition

Both summonses dismissed.

Orders

  • ['In each proceeding, the summons be dismissed.' 'In each proceeding, the Plaintiff pay the costs of the Defendant, such costs to be on the party and party basis.' 'In each proceeding, the Defendant be entitled to recoup out of the estate of the late Rose Ellen Jones the difference between the foregoing costs which...