Bogan v Macorig [2004] NSWSC 993

Bogan v Macorig [2004] NSWSC 993

The plaintiff was not in a de facto relationship with the deceased after 1988 and was not in a close personal relationship at the time of death because, although she provided domestic support in the final months, the evidence did not establish personal care. However, because the admitted 1981 to 1988 de facto relationship made her part of the deceased's household and dependent on him for accommodation, and because the long relationship and the deceased's expressed wish to provide for her supplied factors warranting the application, she was an eligible person. In light of her need for a replacement car and contingencies, the deceased's contemplated provision for her, the estate, and the...

Jurisdiction
Australia
Judgment Date
28 October 2004
Procedural Posture
Application Under the Family Provision Act 1982 (nsw) in Respect of the Estate of Raymond Walter Ham Deceased / Judgment
Outcome
Application allowed; plaintiff ordered to receive a legacy of $60,000 out of the estate.
Legal Topics
['eligibility of Former De Facto Partner' 'domestic Relationship' 'close Personal Relationship' 'member of Household' 'dependency' 'legacy From Estate']
['succession' 'family Provision'] ['eligibility of Former De Facto Partner' 'domestic Relationship' 'close Personal Relationship' 'member of Household' 'dependency' 'legacy From Estate']

Case Brief

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Procedural Posture

Application Under the Family Provision Act 1982 (nsw) in Respect of the Estate of Raymond Walter Ham Deceased / Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was an eligible person because she was living in a domestic relationship with the deceased at the time of death.' "Whether the plaintiff and the deceased were in a de facto relationship after 1988 and up to the deceased's death." "Whether the plaintiff and the deceased were in a close personal relationship from August 2002 until the deceased's death." "Whether the plaintiff was a member of the deceased's household and at some time dependent upon him, and whether there were factors warranting the making of the application." "Whether the deceased's will made inadequate provision for the plaintiff's proper maintenance, education and advancement in life, and what provision should be ordered."]

Ratio Decidendi

The plaintiff was not in a de facto relationship with the deceased after 1988 and was not in a close personal relationship at the time of death because, although she provided domestic support in the final months, the evidence did not establish personal care. However, because the admitted 1981 to 1988 de facto relationship made her part of the deceased's household and dependent on him for accommodation, and because the long relationship and the deceased's expressed wish to provide for her supplied factors warranting the application, she was an eligible person. In light of her need for a replacement car and contingencies, the deceased's contemplated provision for her, the estate, and the...

Court Disposition

Application allowed; plaintiff ordered to receive a legacy of $60,000 out of the estate.

Orders

  • ['The plaintiff to receive a legacy out of the estate of the deceased in the sum of $60,000.00.' "The plaintiff's costs on the party and party basis and the defendants' costs on an indemnity basis be paid or retained out of the estate of the deceased." "The plaintiff's costs be paid in priority to the costs of the...