David George BOOTH v John Robert BOOTH; Estate of the late George Aubrey Hugh BOOTH [2002] NSWSC 836

David George BOOTH v John Robert BOOTH; Estate of the late George Aubrey Hugh BOOTH [2002] NSWSC 836

The plaintiff failed to establish that the $25,000 legacy was inadequate or that he had any particular need warranting further provision. His evidence showed limited means, pension income and rent, but gave little evidence of expenses, risk to accommodation, attempts to find employment, future needs, or what he would do with further provision. Mere receipt of a pension and lack of property were insufficient, and the Court could not award a lump sum to provide accommodation. The summons was therefore dismissed, although the plaintiff's conduct was not treated as disentitling conduct.

Jurisdiction
Australia
Judgment Date
22 August 2002
Procedural Posture
Family Provision Act Application by Son of Deceased for Provision From Estate and Notional Estate / Final Judgment on Summons
Outcome
Summons dismissed; plaintiff to pay the defendant's costs.
Legal Topics
['family Provision Act 1982' 'adult Child Provision' 'estrangement' 'need' 'conduct' 'costs']
['succession' 'family Provision'] ['family Provision Act 1982' 'adult Child Provision' 'estrangement' 'need' 'conduct' 'costs']

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Procedural Posture

Family Provision Act Application by Son of Deceased for Provision From Estate and Notional Estate / Final Judgment on Summons

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff under the deceased's will was inadequate under the Family Provision Act 1982." 'Whether the plaintiff established any need justifying further provision from the estate or notional estate.' "Whether the plaintiff's conduct relating to the allegations against the deceased disentitled him to further provision."]

Ratio Decidendi

The plaintiff failed to establish that the $25,000 legacy was inadequate or that he had any particular need warranting further provision. His evidence showed limited means, pension income and rent, but gave little evidence of expenses, risk to accommodation, attempts to find employment, future needs, or what he would do with further provision. Mere receipt of a pension and lack of property were insufficient, and the Court could not award a lump sum to provide accommodation. The summons was therefore dismissed, although the plaintiff's conduct was not treated as disentitling conduct.

Court Disposition

Summons dismissed; plaintiff to pay the defendant's costs.

Orders

  • ['Summons dismissed.' "Plaintiff to pay the defendant's costs."]