Carter v Stapleton [2002] NSWSC 695

Carter v Stapleton [2002] NSWSC 695

The plaintiff established eligibility under s 6(1)(d) because between 1974 and 1981 she and the deceased lived in a de facto relationship, were members of the same household, and she was partly financially and emotionally dependent on him. The history of the relationship, continuing friendship and support, and admissible evidence of the deceased's statements that the plaintiff would be his beneficiary showed factors warranting the application. Given the plaintiff's limited income, assets, debts and retraining needs, but the limited estate, provision of $40,000 was appropriate.

Jurisdiction
Australia
Judgment Date
09 August 2002
Procedural Posture
Application Under S 7 of the Family Provision Act 1982 (nsw) for Provision Out of a Deceased Estate / Judgment After Hearing
Outcome
Application granted; provision ordered for the plaintiff out of the deceased's estate.
Legal Topics
['dependency' 'eligible Person' 'member of Same Household' 'de Facto Relationship' 'intestacy' 'admissibility of Oral Statements Made by Deceased']
['succession' 'family Provision'] ['dependency' 'eligible Person' 'member of Same Household' 'de Facto Relationship' 'intestacy' 'admissibility of Oral Statements Made by Deceased']

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Procedural Posture

Application Under S 7 of the Family Provision Act 1982 (nsw) for Provision Out of a Deceased Estate / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff was an eligible person under s6 (1)(d) of the Family Provision Act 1982 (NSW).' 'Whether the plaintiff and the deceased had lived in a de facto relationship and had been members of the same household.' 'Whether there were factors warranting the making of the application under s 9 of the Family Provision Act 1982 (NSW).' 'Whether oral statements made by the deceased were admissible under s 32 of the Family Provision Act 1982 (NSW).' "What provision, if any, should be made for the plaintiff out of the deceased's estate."]

Ratio Decidendi

The plaintiff established eligibility under s 6(1)(d) because between 1974 and 1981 she and the deceased lived in a de facto relationship, were members of the same household, and she was partly financially and emotionally dependent on him. The history of the relationship, continuing friendship and support, and admissible evidence of the deceased's statements that the plaintiff would be his beneficiary showed factors warranting the application. Given the plaintiff's limited income, assets, debts and retraining needs, but the limited estate, provision of $40,000 was appropriate.

Court Disposition

Application granted; provision ordered for the plaintiff out of the deceased's estate.

Orders

  • ["Provision is to be made out of the deceased's estate for the plaintiff in the sum of $40,000." "Defendant to pay plaintiff's costs on a party party basis." "Defendant's costs to be paid out of the estate on an indemnity basis."]