Perry v Perry [2009] NSWSC 212

Perry v Perry [2009] NSWSC 212

The plaintiff, an eligible adult son living on a disability support pension with poor prospects of employment, was in need of present relief, but in a small estate where the main competing beneficiary had limited capital and had lived with, assisted, and contributed to the deceased and the home, it was inappropriate to provide the plaintiff with funds for an unencumbered home. The least disruptive order was to accelerate the plaintiff's testamentary entitlement by replacing his postponed interests with an immediate legacy of $48,333.

Jurisdiction
Australia
Judgment Date
31 March 2009
Procedural Posture
Family Provision Application Concerning the Estate of the Late Elsie Florence Perry / Judgment and Orders
Outcome
Application allowed to the extent of substituting an immediate legacy for the plaintiff's postponed testamentary interests and varying the will accordingly.
Legal Topics
['family Provision' 'adult Child Claim' 'adequacy of Testamentary Provision' 'acceleration of Testamentary Benefit' 'costs Out of Estate']
['succession' 'equity'] ['family Provision' 'adult Child Claim' 'adequacy of Testamentary Provision' 'acceleration of Testamentary Benefit' 'costs Out of Estate']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Family Provision Application Concerning the Estate of the Late Elsie Florence Perry / Judgment and Orders

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff under the deceased's will was inadequate for his proper maintenance, education and advancement in life." 'Whether further provision should be made for the plaintiff, including whether he should receive funds for housing, a replacement car, household items and support while on a disability support pension.' "Whether the appropriate relief was to disturb the will by providing funds for accommodation or to accelerate the plaintiff's entitlement under the will."]

Ratio Decidendi

The plaintiff, an eligible adult son living on a disability support pension with poor prospects of employment, was in need of present relief, but in a small estate where the main competing beneficiary had limited capital and had lived with, assisted, and contributed to the deceased and the home, it was inappropriate to provide the plaintiff with funds for an unencumbered home. The least disruptive order was to accelerate the plaintiff's testamentary entitlement by replacing his postponed interests with an immediate legacy of $48,333.

Court Disposition

Application allowed to the extent of substituting an immediate legacy for the plaintiff's postponed testamentary interests and varying the will accordingly.

Orders

  • ['In lieu of the provision in favour of the plaintiff in clauses 6.4, 6.5 and 8 of the will of the deceased, the plaintiff receive a legacy of $48,333.' 'The legacy is to be paid within three months of 31 March 2009 and, if not paid, is to carry interest at the rate provided for under the Succession Act from the...