Milewski v Holben [2014] NSWSC 388

Milewski v Holben [2014] NSWSC 388

The plaintiff's legitimate need for assistance, ongoing though irregular relationship with the deceased, promises made to her by the deceased, absence of any property settlement following divorce, and the fact that provision could be made without substantial injustice to the defendant or her children warranted family provision. The application was allowed out of time, notional estate designated, and a legacy of $200,000 plus costs ordered.

Jurisdiction
Australia
Judgment Date
26 March 2014
Procedural Posture
Family Provision Application / Final Judgment After Hearing
Outcome
Application allowed; orders made in favour of plaintiff
Legal Topics
['family Provision' 'notional Estate' 'adequacy of Provision' 'extension of Time']
['succession Law'] ['family Provision' 'notional Estate' 'adequacy of Provision' 'extension of Time']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Family Provision Application / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff, as former wife, is eligible and whether there are factors warranting a family provision order' 'Whether leave to apply out of time should be granted' "Whether the deceased's distributed property should be designated notional estate" 'Whether and what provision should be made for the plaintiff']

Ratio Decidendi

The plaintiff's legitimate need for assistance, ongoing though irregular relationship with the deceased, promises made to her by the deceased, absence of any property settlement following divorce, and the fact that provision could be made without substantial injustice to the defendant or her children warranted family provision. The application was allowed out of time, notional estate designated, and a legacy of $200,000 plus costs ordered.

Court Disposition

Application allowed; orders made in favour of plaintiff

Orders

  • ['Extension of time for plaintiff to apply for family provision order' 'Plaintiff permitted to file amended summons without further service' "Defendant's Bendigo Bank term deposit designated as notional estate to satisfy provision and costs" 'Plaintiff granted legacy of $200,000 out of notional estate' 'Interest on...