Carruthers v MarshallCarruthers v Marshall and Marshall v Marshall [2001] NSWSC 665

Carruthers v MarshallCarruthers v Marshall and Marshall v Marshall [2001] NSWSC 665

Linda Carruthers was found to have been in a de facto relationship with the deceased from June 1995, had contributed to the estate and to the Herbert Street property, and her claim as de facto partner was superior to that of the son, although the estate was small. Kim Marshall also had a proper claim for a modest increase in funds for education, support and advancement. Margaret Lesley Marshall's personal claim was not appropriate once Kim brought his own claim. The appropriate provision was to give Linda Carruthers the deceased's half interest in Herbert Street and personalty at that property subject to conditions, and to give Kim Marshall a $20,000 legacy, with tailored costs orders...

Jurisdiction
Australia
Judgment Date
03 August 2001
Procedural Posture
Two Applications Under the Family Provision Act in Respect of the Estate of the Late Neil Marshall / Final Judgment After Hearing
Outcome
Family provision orders made for Linda Hope Carruthers and Kim Neil Marshall; costs ordered from the estate subject to priority and further argument as to the basis of the defendant's costs.
Legal Topics
['family Provision Claim by De Facto Partner' 'family Provision Claim by Adult Child' 'adequacy of Provision' 'small Estate' 'costs From Estate' 'de Facto Relationship']
['succession' 'family Provision' 'equity'] ['family Provision Claim by De Facto Partner' 'family Provision Claim by Adult Child' 'adequacy of Provision' 'small Estate' 'costs From Estate' 'de Facto Relationship']

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Procedural Posture

Two Applications Under the Family Provision Act in Respect of the Estate of the Late Neil Marshall / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether Linda Hope Carruthers was in a de facto relationship with the deceased from June 1995 until his death' 'Whether the provision made for Linda Hope Carruthers and Kim Neil Marshall was inadequate for their proper maintenance, education and advancement in life' 'What provision should be made for Linda Hope Carruthers and Kim Neil Marshall from a small estate' 'How costs should be ordered given the value and possible variation of the estate']

Ratio Decidendi

Linda Carruthers was found to have been in a de facto relationship with the deceased from June 1995, had contributed to the estate and to the Herbert Street property, and her claim as de facto partner was superior to that of the son, although the estate was small. Kim Marshall also had a proper claim for a modest increase in funds for education, support and advancement. Margaret Lesley Marshall's personal claim was not appropriate once Kim brought his own claim. The appropriate provision was to give Linda Carruthers the deceased's half interest in Herbert Street and personalty at that property subject to conditions, and to give Kim Marshall a $20,000 legacy, with tailored costs orders...

Court Disposition

Family provision orders made for Linda Hope Carruthers and Kim Neil Marshall; costs ordered from the estate subject to priority and further argument as to the basis of the defendant's costs.

Orders

  • ["Linda Carruthers receive a specific bequest of the deceased's half interest in Herbert Street, Newtown subject to and conditional upon her assuming liability for the mortgage over the property, making no claim for debts against the estate or for the funeral account she has paid, and paying the estate the sum of...