Costello v Martens [2009] NSWSC 1151

Costello v Martens [2009] NSWSC 1151

Tanya Costello, as an adult daughter, had been left without adequate provision for her proper maintenance and advancement under her late father's will, despite the near total estrangement. However, considering all circumstances, including her financial position, the value of the estate, her proposed future needs, and the impact of estrangement on the strength of her claim, the proper provision was determined to be a legacy of $350,000, not the larger amount claimed. This sum, added to her existing assets and savings, was considered sufficient for her advancement in life without being excessive in the context.

Parties
Plaintiff in 2026 of 2007: Tanya Costello; Plaintiff in 1013 of 2007: Michelle Lorraine Byrnes; Plaintiff in 2572 of 2007: Janine Robyn Peacock; Defendant in Each Proceeding: Esme Elizabeth Martens
Jurisdiction
Australia
Judgment Date
29 October 2009
Procedural Posture
Family Provision Proceeding / Final Judgment After Contested Hearing and Settlements
Outcome
Claim allowed in part; legacy ordered; costs ordered out of estate; settlements recorded for other plaintiffs.
Legal Topics
Family Provision, Testator's Family Maintenance, Provision for Child, De Facto Partner's Claim, Estrangement, Advancement in Life
Succession Law Family Provision Testator's Family Maintenance Provision for Child De Facto Partner's Claim Estrangement Advancement in Life

Case Brief

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Parties

Tanya Costello

Plaintiff in 2026 of 2007

Michelle Lorraine Byrnes

Plaintiff in 1013 of 2007

Janine Robyn Peacock

Plaintiff in 2572 of 2007

Esme Elizabeth Martens

Defendant in Each Proceeding

Procedural Posture

Family Provision Proceeding / Final Judgment After Contested Hearing and Settlements

Legal Issues

  1. 1 Whether the plaintiff, as an adult daughter, had been left without adequate provision for her proper maintenance and advancement in life under the will
  2. 2 The impact of estrangement between plaintiff and deceased on the quantum of provision
  3. 3 Interaction of competing claims: de facto partner and other children

Ratio Decidendi

Tanya Costello, as an adult daughter, had been left without adequate provision for her proper maintenance and advancement under her late father's will, despite the near total estrangement. However, considering all circumstances, including her financial position, the value of the estate, her proposed future needs, and the impact of estrangement on the strength of her claim, the proper provision was determined to be a legacy of $350,000, not the larger amount claimed. This sum, added to her existing assets and savings, was considered sufficient for her advancement in life without being excessive in the context.

Court Disposition

Claim allowed in part; legacy ordered; costs ordered out of estate; settlements recorded for other plaintiffs.

Orders

  • Plaintiff (Tanya Costello) to receive from the estate of the late William Alick Costello a legacy of $350,000, such legacy not to bear interest if paid on or before 29 January 2010, and if not so paid to bear interest at the prescribed rates under the Probate and Administration Act 1898.
  • The costs of the Plaintiff (Tanya Costello) on a party and party basis and costs of the Defendant on the indemnity basis to be paid out of the estate.