Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572

Thomas v Pickering; Byrne & Anor v Pickering [2011] NSWSC 572

Adequate provision for the proper maintenance or advancement in life had not been made for Wendy Thomas or Leslie Byrne under the Will. A lump sum of $650,000 was ordered for the Defendant to purchase and hold accommodation for Wendy for life (with a Crisp order), and $165,000 was ordered in favour of Leslie in lieu of testamentary provision. Allan Byrne did not demonstrate inadequate provision or greater urgency than competing claims; his application was refused. The application for extension of time for Leslie was allowed; the estate's size limited further provision.

Jurisdiction
Australia
Judgment Date
08 September 2011
Procedural Posture
Family Provision; Succession / Principal Judgment—hearing and Determination of Family Provision Applications
Outcome
Orders for provision for Wendy Thomas and Leslie Byrne; application by Allan Byrne dismissed; directions for form of orders and further consideration of costs.
Legal Topics
['extension of Time for Application' 'provision for De Facto Partner' 'provision for Adult Children' 'bankruptcy and Succession' "testator's Moral Duty"]
['succession Law' 'family Provision' 'equity'] ['extension of Time for Application' 'provision for De Facto Partner' 'provision for Adult Children' 'bankruptcy and Succession' "testator's Moral Duty"]

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Procedural Posture

Family Provision; Succession / Principal Judgment—hearing and Determination of Family Provision Applications

Legal Issues

  1. 1 ['Whether adequate provision was made for the de facto partner (Wendy Thomas) under the Will' 'Whether Leslie Byrne and Allan Byrne were entitled to family provision and if so, what provision' 'Extension of time for filing family provision applications under Succession Act 2006' "Legal effect of applicant's bankruptcy on provision from deceased's estate"]

Ratio Decidendi

Adequate provision for the proper maintenance or advancement in life had not been made for Wendy Thomas or Leslie Byrne under the Will. A lump sum of $650,000 was ordered for the Defendant to purchase and hold accommodation for Wendy for life (with a Crisp order), and $165,000 was ordered in favour of Leslie in lieu of testamentary provision. Allan Byrne did not demonstrate inadequate provision or greater urgency than competing claims; his application was refused. The application for extension of time for Leslie was allowed; the estate's size limited further provision.

Court Disposition

Orders for provision for Wendy Thomas and Leslie Byrne; application by Allan Byrne dismissed; directions for form of orders and further consideration of costs.

Orders

  • ['Defendant to make available lump sum of $650,000 from the estate to purchase accommodation (and stamp duty/legal costs) for Wendy Thomas; provide her a Crisp order in lieu of Will provision.' "Upon Wendy's death, estate's share of proceeds from property to be divided equally between Allan Byrne, Carmen Sadler, and...