Hadfield v Hadfield [2010] NSWSC 561

Hadfield v Hadfield [2010] NSWSC 561

The plaintiff is precluded by acquiescence from relying on the defendant's failure to meet the occupancy requirement within eight months; however, sufficient cause for leave to bring an out-of-time Family Provision Act claim is established, and proper provision requires adjustment of the will by acceleration of sale of the property with a 35 per cent share to the plaintiff, 65 per cent to the defendant, after adjustment for a debt owed by the defendant to the estate.

Parties
Plaintiff: Graham James Hadfield; Defendant: Lynette Hadfield
Jurisdiction
Australia
Judgment Date
28 May 2010
Procedural Posture
Equity Application Succession/family Provision / Final Judgment
Outcome
Plaintiff's claim under will rejected due to acquiescence; leave granted for Family Provision Act claim out of time; orders for sale of property with a 35:65 distribution and mortgage adjustment; costs out of estate.
Legal Topics
Construction of Will, Conditional Gifts, Family Provision Application, Extension of Time, Acquiescence, Laches
Succession Wills and Estates Equity Construction of Will Conditional Gifts Family Provision Application Extension of Time Acquiescence +1 more

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Parties

Graham James Hadfield

Plaintiff

Lynette Hadfield

Defendant

Procedural Posture

Equity Application Succession/family Provision / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to an order for sale of the property due to breach of occupancy and maintenance requirements in the will
  2. 2 Whether leave should be granted to bring a Family Provision Act 1982 (NSW) claim out of time
  3. 3 Whether sufficient provision was made for the plaintiff under the will and if an adjustment/acceleration should be ordered

Ratio Decidendi

The plaintiff is precluded by acquiescence from relying on the defendant's failure to meet the occupancy requirement within eight months; however, sufficient cause for leave to bring an out-of-time Family Provision Act claim is established, and proper provision requires adjustment of the will by acceleration of sale of the property with a 35 per cent share to the plaintiff, 65 per cent to the defendant, after adjustment for a debt owed by the defendant to the estate.

Court Disposition

Plaintiff's claim under will rejected due to acquiescence; leave granted for Family Provision Act claim out of time; orders for sale of property with a 35:65 distribution and mortgage adjustment; costs out of estate.

Orders

  • Leave granted to bring Family Provision Act 1982 (NSW) claim out of time.
  • The property at 32 Mindarie Street, Lane Cove to be sold.