Drury v Smith [2012] NSWSC 1067

Drury v Smith [2012] NSWSC 1067

The plaintiff was at the date of the deceased's death living in a de facto relationship with the deceased and was therefore an 'eligible person' under s 57(1)(b) of the Succession Act 2006. The will made no provision for her. There was a long and close intimate relationship, mutual commitment, and the deceased by...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 September 2012
Procedural Posture
Family Provision Originating Summons / Final Judgment/principal Judgment
Outcome
Family provision order made for the plaintiff; orders as to lump sum, burden on estate, possible interest, and costs to be dealt with subsequently.
Legal Topics
['family Provision' 'de Facto Relationships' 'eligibility for Family Provision Order' 'adequacy of Provision by Will' 'discretionary Orders Under Succession Act 2006']
['succession Law' 'equity'] ['family Provision' 'de Facto Relationships' 'eligibility for Family Provision Order' 'adequacy of Provision by Will' 'discretionary Orders Under Succession Act 2006']

Source-derived case record

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Procedural Posture

Family Provision Originating Summons / Final Judgment/principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff was an 'eligible person' under the Succession Act 2006 at the time of the deceased's death" 'Whether there are factors warranting the making of an application for a family provision order for the plaintiff' "Whether adequate provision was made for the proper maintenance or advancement in life of the plaintiff by the deceased's will" 'If not, what provision (if any) ought to be made out of the estate for the plaintiff']

Ratio Decidendi

The plaintiff was at the date of the deceased's death living in a de facto relationship with the deceased and was therefore an 'eligible person' under s 57(1)(b) of the Succession Act 2006. The will made no provision for her. There was a long and close intimate relationship, mutual commitment, and the deceased by implication recognised an obligation to provide for her. The plaintiff had financial needs that had not been met by the will, and having regard to the competing claims of the deceased's independent adult children and the overall circumstances, adequate provision was not made. A lump sum of $300,000 from the estate was determined to constitute proper provision.

Court Disposition

Family provision order made for the plaintiff; orders as to lump sum, burden on estate, possible interest, and costs to be dealt with subsequently.

Orders

  • ['The plaintiff, Elaine Gibson Drury, shall receive a lump sum of $300,000 out of the estate of the deceased.' 'The burden of the provision for the plaintiff is to be borne out of the residuary estate and the three children of the deceased shall bear it equally.' 'No interest is payable if paid within 28 days;...