Davy v Black [2011] NSWSC 1416

Davy v Black [2011] NSWSC 1416

Although the plaintiff had already received $500,000 from assets transferred by the deceased to the first defendant, the size of the available notional estate, the plaintiff's financial circumstances, her mortgage, education-related responsibilities and appropriate provision for contingencies meant that she had been left without adequate and proper provision for her maintenance and advancement in life. A further legacy of $475,000 was appropriate, requiring designation of specified real estate as notional estate to meet the total legacy of $975,000 and costs.

Jurisdiction
Australia
Judgment Date
16 November 2011
Procedural Posture
Application Under the Succession Act 2006 for a Family Provision Order / Principal Judgment
Outcome
Application allowed; further provision ordered for the plaintiff from the deceased's notional estate.
Legal Topics
['family Provision' 'notional Estate' 'intestacy as to Residue' 'adequate and Proper Provision' 'adult Child Claim']
['wills and Estates' 'succession'] ['family Provision' 'notional Estate' 'intestacy as to Residue' 'adequate and Proper Provision' 'adult Child Claim']

Case Brief

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Procedural Posture

Application Under the Succession Act 2006 for a Family Provision Order / Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff had been left without adequate and proper provision for her maintenance, education or advancement in life.' "Whether further provision should be made for the plaintiff from the deceased's notional estate." 'Whether property transferred to the defendants should be designated as notional estate to meet the legacy and costs.']

Ratio Decidendi

Although the plaintiff had already received $500,000 from assets transferred by the deceased to the first defendant, the size of the available notional estate, the plaintiff's financial circumstances, her mortgage, education-related responsibilities and appropriate provision for contingencies meant that she had been left without adequate and proper provision for her maintenance and advancement in life. A further legacy of $475,000 was appropriate, requiring designation of specified real estate as notional estate to meet the total legacy of $975,000 and costs.

Court Disposition

Application allowed; further provision ordered for the plaintiff from the deceased's notional estate.

Orders

  • ['The plaintiff receive a legacy out of the notional estate of the deceased of $975,000, of which $500,000 has already been paid.' "The plaintiff's costs on the ordinary basis and the defendants' costs on an indemnity basis be paid or retained out of the notional estate designated." 'The property in Howe Street,...