White v Long [2005] NSWSC 1369

White v Long [2005] NSWSC 1369

The plaintiff was granted an extension of time because probate had only just been granted after rectification proceedings, the major asset had not been distributed, there was no possible prejudice to the defendant beyond having to meet the claim, and the claim was not manifestly hopeless. Although no provision had been made for the plaintiff and she was in needy circumstances, the defendant's strong competing claim as the deceased's long-term spouse and source of the estate assets meant that the full claim to share the Cammeray unit should not be allowed. Appropriate provision was an immediate legacy of $100,000 plus a remainder interest of $80,000.

Jurisdiction
Australia
Judgment Date
04 February 2005
Procedural Posture
Application Under S7 of the Family Provision Act 1982 for Provision Out of a Deceased Estate / Judgment on Extension of Time and Family Provision Application
Outcome
Extension of time granted and family provision awarded to the plaintiff.
Legal Topics
['extension of Time' 'adequate Provision for Maintenance and Advancement' 'competing Claims of Adult Child and Surviving Spouse' 'deceased Estate']
['succession' 'family Provision'] ['extension of Time' 'adequate Provision for Maintenance and Advancement' 'competing Claims of Adult Child and Surviving Spouse' 'deceased Estate']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Application Under S7 of the Family Provision Act 1982 for Provision Out of a Deceased Estate / Judgment on Extension of Time and Family Provision Application

Legal Issues

  1. 1 ['Whether an extension of time should be granted for the plaintiff to bring the family provision application.' "Whether adequate provision had been made for the plaintiff's maintenance and advancement in life." "What provision, if any, should be made for the plaintiff having regard to the competing claim of the defendant as the deceased's long-term spouse."]

Ratio Decidendi

The plaintiff was granted an extension of time because probate had only just been granted after rectification proceedings, the major asset had not been distributed, there was no possible prejudice to the defendant beyond having to meet the claim, and the claim was not manifestly hopeless. Although no provision had been made for the plaintiff and she was in needy circumstances, the defendant's strong competing claim as the deceased's long-term spouse and source of the estate assets meant that the full claim to share the Cammeray unit should not be allowed. Appropriate provision was an immediate legacy of $100,000 plus a remainder interest of $80,000.

Court Disposition

Extension of time granted and family provision awarded to the plaintiff.

Orders

  • ['Provision for the plaintiff as an immediate legacy in the sum of $100,000.' 'The plaintiff to have an interest in the remainder in a further sum of $80,000.' 'Interest at legacy rates be paid on the sum of $100,000 from 4 June 2005.' 'Orders made in accordance with the short minutes of order initialled by the...