Rogers v Roe (Estate of the Late Irene Clipsham) [2010] NSWSC 1141

Rogers v Roe (Estate of the Late Irene Clipsham) [2010] NSWSC 1141

In the context of a small estate and both daughters having significant needs, and despite the plaintiff's estrangement and limited contact with the deceased, the Court held it appropriate to divide the estate equally between the plaintiff and defendant. The estrangement, while relevant, was not sufficient to wholly exclude the plaintiff from provision given her attempts at reconciliation and the needs involved.

Parties
Plaintiff: Elizabeth Helen Rogers; Defendant: Susan Irene Roe
Jurisdiction
Australia
Judgment Date
01 October 2010
Procedural Posture
Family Provision Application / Judgment
Outcome
Estate divided equally between plaintiff and defendant; plaintiff and defendant's legal costs paid from the estate with differing bases.
Legal Topics
Family Provision, Estrangement, Distribution of Small Estates
Succession Law Equity Family Provision Estrangement Distribution of Small Estates

Case Brief

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Parties

Elizabeth Helen Rogers

Plaintiff

Susan Irene Roe

Defendant

Procedural Posture

Family Provision Application / Judgment

Legal Issues

  1. 1 Whether the deceased made adequate provision for the proper maintenance of the plaintiff under the Family Provision Act 1982 (NSW)
  2. 2 Effect of long-term estrangement upon entitlement to provision

Ratio Decidendi

In the context of a small estate and both daughters having significant needs, and despite the plaintiff's estrangement and limited contact with the deceased, the Court held it appropriate to divide the estate equally between the plaintiff and defendant. The estrangement, while relevant, was not sufficient to wholly exclude the plaintiff from provision given her attempts at reconciliation and the needs involved.

Court Disposition

Estate divided equally between plaintiff and defendant; plaintiff and defendant's legal costs paid from the estate with differing bases.

Orders

  • In lieu of the provision of clause 3 of the will the estate of the deceased be held for the plaintiff and the defendant equally.
  • The plaintiff's costs on an ordinary basis and the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased.