Barna v Barna [2008] NSWSC 1402

Barna v Barna [2008] NSWSC 1402

The plaintiff, as an eligible person who was left with inadequate provision under the deceased's will, should receive a proportionate share (20/75) of the estate, with the remaining 55/75 to be divided equally between the other two adult children, having regard to their respective needs and benefits previously received.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Family Provision Application (succession) / Final Judgment
Outcome
Provision made for plaintiff; property to be held on trust by executor as to 20/75 for plaintiff and 27.5/75 for each defendant; plaintiff's costs to be paid out of estate.
Legal Topics
['family Provision' 'testamentary Freedom' 'adequate Provision' 'ademption' 'proper Maintenance' 'discretionary Powers Under Family Provision Act']
['succession Law' 'equity'] ['family Provision' 'testamentary Freedom' 'adequate Provision' 'ademption' 'proper Maintenance' 'discretionary Powers Under Family Provision Act']

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Procedural Posture

Family Provision Application (succession) / Final Judgment

Legal Issues

  1. 1 ["Whether the plaintiff was left without adequate provision for proper maintenance and advancement in life under the deceased's will" 'What provision, if any, should be made for the plaintiff from the estate']

Ratio Decidendi

The plaintiff, as an eligible person who was left with inadequate provision under the deceased's will, should receive a proportionate share (20/75) of the estate, with the remaining 55/75 to be divided equally between the other two adult children, having regard to their respective needs and benefits previously received.

Court Disposition

Provision made for plaintiff; property to be held on trust by executor as to 20/75 for plaintiff and 27.5/75 for each defendant; plaintiff's costs to be paid out of estate.

Orders

  • ['In lieu of the provisions of the Will, executor to hold 12 Darley Street, Marrickville on trust: 20/75 shares for plaintiff, 27.5/75 shares for first defendant, 27.5/75 shares for second defendant.' "Plaintiff's costs to be paid out of the estate." 'Liberty to apply in the event of difficulty in implementation.']