Moon v Abrahams [2010] NSWSC 69

Moon v Abrahams [2010] NSWSC 69

The plaintiff, although assisted in life by previous gifts from the deceased, was left without adequate and proper provision for her maintenance and advancement in life due to a failure by the deceased to sever the joint tenancy in the Perthville property, which created a prescribed transaction for notional estate purposes; accordingly, an order for a $60,000 legacy to the plaintiff, with plaintiff’s costs capped at $60,000 and the defendants’ property designated as notional estate, was appropriate.

Jurisdiction
Australia
Judgment Date
17 February 2010
Procedural Posture
Family Provision Application / Judgment After Trial
Outcome
Order for legacy to plaintiff with costs capped at $60,000; parties to bring in short minutes; defendants’ costs to be paid out of estate; defendants’ property designated as notional estate.
Legal Topics
['family Provision Act 1982' 'notional Estate' 'joint Tenancy' 'adequate Provision']
['succession Law' 'equity'] ['family Provision Act 1982' 'notional Estate' 'joint Tenancy' 'adequate Provision']

Case Brief

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Procedural Posture

Family Provision Application / Judgment After Trial

Legal Issues

  1. 1 ['Whether the plaintiff, an adult daughter, has been left without adequate and proper provision for her maintenance and advancement in life out of the estate and notional estate of the deceased' "Whether the deceased's interest in the proceeds of sale of the Perthville property forms the notional estate" 'Whether the failure to sever a joint tenancy is a prescribed transaction under the Family Provision Act']

Ratio Decidendi

The plaintiff, although assisted in life by previous gifts from the deceased, was left without adequate and proper provision for her maintenance and advancement in life due to a failure by the deceased to sever the joint tenancy in the Perthville property, which created a prescribed transaction for notional estate purposes; accordingly, an order for a $60,000 legacy to the plaintiff, with plaintiff’s costs capped at $60,000 and the defendants’ property designated as notional estate, was appropriate.

Court Disposition

Order for legacy to plaintiff with costs capped at $60,000; parties to bring in short minutes; defendants’ costs to be paid out of estate; defendants’ property designated as notional estate.

Orders

  • ['Order for a legacy of $60,000 in favour of the plaintiff' "Plaintiff's costs capped at $60,000" "Burden to fall on plaintiff's sons' legacies and any shortfall to be paid from defendants' savings" "Defendants' savings/property designated as notional estate" "Defendants' costs on indemnity basis to be paid from...