Christopher Edmund Lumb and Anor -v- Diana Faye McMillan and Anor [2007] NSWSC 386

Christopher Edmund Lumb and Anor -v- Diana Faye McMillan and Anor [2007] NSWSC 386

Both plaintiffs were children of the deceased and eligible persons under the Family Provision Act 1982. They established that, given their modest circumstances and the large estate, the will did not provide adequate provision for their proper maintenance. The form of order as a lump sum in lieu of any benefit under the will was appropriate to achieve proper provision without unduly affecting other residuary beneficiaries.

Parties
First Plaintiff: Christopher Edmund Lumb; Second Plaintiff: Judith Anne Eslick; First Defendant: Diana Faye McMillan; Second Defendant: William McMillan
Jurisdiction
Australia
Judgment Date
23 April 2007
Procedural Posture
Family Provision Act 1982 Proceedings / Judgment After Hearing
Outcome
Plaintiffs awarded legacies in lieu of will entitlements; costs to be paid out of estate.
Legal Topics
Family Provision, Estate Distribution, Testator's Duty, Adequate Provision, Competing Claims Between Family Members
Succession Law Family Provision Estate Distribution Testator's Duty Adequate Provision Competing Claims Between Family Members

Case Brief

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Parties

Christopher Edmund Lumb

First Plaintiff

Judith Anne Eslick

Second Plaintiff

Diana Faye McMillan

First Defendant

William McMillan

Second Defendant

Procedural Posture

Family Provision Act 1982 Proceedings / Judgment After Hearing

Legal Issues

  1. 1 Whether the plaintiffs, as children of the deceased, have been left without adequate provision for their proper maintenance by the will of Frederick Cecil Lumb
  2. 2 Whether the form and quantum of provision for each plaintiff is appropriate in light of their circumstances and those of the estate

Ratio Decidendi

Both plaintiffs were children of the deceased and eligible persons under the Family Provision Act 1982. They established that, given their modest circumstances and the large estate, the will did not provide adequate provision for their proper maintenance. The form of order as a lump sum in lieu of any benefit under the will was appropriate to achieve proper provision without unduly affecting other residuary beneficiaries.

Court Disposition

Plaintiffs awarded legacies in lieu of will entitlements; costs to be paid out of estate.

Orders

  • Christopher Edmund Lumb is to receive a legacy of $1,170,000 in lieu of will benefits, not bearing interest if paid on or before 23 May 2007, and bearing interest thereafter at statutory rates.
  • Judith Anne Eslick is to receive a legacy of $1,180,000 in lieu of will benefits, not bearing interest if paid on or before 23 May 2007, and bearing interest thereafter at statutory rates.