Wolff v Deavin [2012] NSWSC 1315

Wolff v Deavin [2012] NSWSC 1315

The change from 'a' to 'the' household in s 57(1)(e) of the Succession Act 2006 does not mean a person can only be a member of one household; the established case law that a person can be a member of more than one household continues to apply. The facts of the plaintiff's relationship may not establish she was a member of the deceased's household, but it is not appropriate to summarily dismiss the proceedings at this early stage; the factual issues should be determined at trial.

Jurisdiction
Australia
Judgment Date
30 October 2012
Procedural Posture
Interlocutory Application / Application for Summary Dismissal (motion to Dismiss)
Outcome
Motion to dismiss proceedings summarily dismissed with costs
Legal Topics
['family Provision' 'summary Dismissal' 'statutory Interpretation' 'eligibility Under Succession Legislation']
['succession Law' 'equity'] ['family Provision' 'summary Dismissal' 'statutory Interpretation' 'eligibility Under Succession Legislation']

Case Brief

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Procedural Posture

Interlocutory Application / Application for Summary Dismissal (motion to Dismiss)

Legal Issues

  1. 1 ['Whether, under the Succession Act 2006, a person can only be a member of one household for eligibility to claim family provision' 'Whether the plaintiff was a member of the household of which the deceased was a member' 'Appropriateness of summary dismissal in family provision proceedings']

Ratio Decidendi

The change from 'a' to 'the' household in s 57(1)(e) of the Succession Act 2006 does not mean a person can only be a member of one household; the established case law that a person can be a member of more than one household continues to apply. The facts of the plaintiff's relationship may not establish she was a member of the deceased's household, but it is not appropriate to summarily dismiss the proceedings at this early stage; the factual issues should be determined at trial.

Court Disposition

Motion to dismiss proceedings summarily dismissed with costs

Orders

  • ['The motion filed on 4 September 2012 is dismissed with costs']