Barter v Barter [2011] NSWSC 393

Barter v Barter [2011] NSWSC 393

Having regard to the small net estate, the joint debts, the practical need to repay the bank, the plaintiff's circumstances, and the financial circumstances and testamentary claims of the deceased's sons, the will's provision was unrealistic in giving the sons the gross value of Gunyama Crescent, but Shannon and Slade Barter should each receive a legacy of $40,000, funded by designating sufficient of Gai Barter's share portfolio as notional estate.

Jurisdiction
Australia
Judgment Date
09 May 2011
Procedural Posture
Application Under the Succession Act 2006 for Family Provision in Respect of the Estate of Donald Arthur Barter / Principal Judgment After Hearing
Outcome
The Court directed the parties to bring in short minutes to reflect the judgment, including provision that Shannon Barter and Slade Barter each receive a $40,000 legacy and sufficient of Gai Barter's share portfolio be designated as notional estate.
Legal Topics
['family Provision Claim' 'nature and Extent of Estate' 'notional Estate' 'administration of Estate' 'legacies to Adult Children' 'provision for Surviving Spouse']
['wills and Estates' 'succession'] ['family Provision Claim' 'nature and Extent of Estate' 'notional Estate' 'administration of Estate' 'legacies to Adult Children' 'provision for Surviving Spouse']

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Procedural Posture

Application Under the Succession Act 2006 for Family Provision in Respect of the Estate of Donald Arthur Barter / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the provision made for Gai Barter under the deceased's will was inadequate for her proper maintenance, education and advancement in life." "How the deceased's estate and relevant notional estate should be dealt with after the proceeds of Gunyama Crescent were applied to estate liabilities rather than paid to the deceased's sons." 'Whether sufficient property should be designated as notional estate to fund provision for Shannon Barter and Slade Barter.']

Ratio Decidendi

Having regard to the small net estate, the joint debts, the practical need to repay the bank, the plaintiff's circumstances, and the financial circumstances and testamentary claims of the deceased's sons, the will's provision was unrealistic in giving the sons the gross value of Gunyama Crescent, but Shannon and Slade Barter should each receive a legacy of $40,000, funded by designating sufficient of Gai Barter's share portfolio as notional estate.

Court Disposition

The Court directed the parties to bring in short minutes to reflect the judgment, including provision that Shannon Barter and Slade Barter each receive a $40,000 legacy and sufficient of Gai Barter's share portfolio be designated as notional estate.

Orders

  • ['I direct the parties to bring in short minutes.']