Cashen v Cashen [2001] NSWSC 469

Cashen v Cashen [2001] NSWSC 469

The plaintiff was an eligible person because from 1988 he lived as part of the deceased's household, performed domestic work, provided companionship and was at least partly dependent on the deceased. Factors warranted the application because the deceased had indicated an intention to benefit him and the plaintiff had worked for many years on the property without payment, giving up more remunerative opportunities. Balancing those contributions against the limited but real needs of the deceased's brothers, the appropriate provision was for the plaintiff to receive the residue of the estate subject to pecuniary legacies to the second and third defendants and costs orders.

Jurisdiction
Australia
Judgment Date
05 June 2001
Procedural Posture
Application Under the Family Provisions Act in Respect of the Estate of Edward John Cashen / Judgment and Orders
Outcome
Application allowed; family provision order made in favour of the plaintiff subject to legacies to the second and third defendants.
Legal Topics
["eligibility as Member of Deceased's Household and Dependent" 'factors Warranting the Making of the Application' 'adequate Provision for Proper Maintenance, Education and Advancement in Life' "contributions to Deceased's Estate" 'intestacy']
['succession Law' 'family Provision'] ["eligibility as Member of Deceased's Household and Dependent" 'factors Warranting the Making of the Application' 'adequate Provision for Proper Maintenance, Education and Advancement in Life' "contributions to Deceased's Estate" 'intestacy']

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Procedural Posture

Application Under the Family Provisions Act in Respect of the Estate of Edward John Cashen / Judgment and Orders

Legal Issues

  1. 1 ['Whether the plaintiff nephew was an eligible person as part of the household of the deceased and wholly or partly dependent on the deceased.' 'Whether there were factors warranting the making of the application under section 9(1) of the Family Provisions Act.' "Whether provision should be made for the plaintiff out of the deceased's estate and in what amount or form." "How the plaintiff's contributions and the circumstances of the deceased's brothers should be balanced."]

Ratio Decidendi

The plaintiff was an eligible person because from 1988 he lived as part of the deceased's household, performed domestic work, provided companionship and was at least partly dependent on the deceased. Factors warranted the application because the deceased had indicated an intention to benefit him and the plaintiff had worked for many years on the property without payment, giving up more remunerative opportunities. Balancing those contributions against the limited but real needs of the deceased's brothers, the appropriate provision was for the plaintiff to receive the residue of the estate subject to pecuniary legacies to the second and third defendants and costs orders.

Court Disposition

Application allowed; family provision order made in favour of the plaintiff subject to legacies to the second and third defendants.

Orders

  • ['Upon condition that the plaintiff releases the estate of the late Edward John Cashen and the defendants from any claims against them as executors of the estate, and the executors release any claims against the plaintiff for use of the estate assets since the date of death, the plaintiff is to receive the residue...