Johnston & Anor v McCallum [2005] NSWSC 17

Johnston & Anor v McCallum [2005] NSWSC 17

The will made substantially greater provision for the deceased's sons than for his daughters, while both plaintiffs had demonstrated financial needs. Joan had limited remaining working life, health problems, liabilities and needs for renovations and replacement of her car. Helen had a remaining mortgage and substantial repair needs for the Deniliquin home. Although the defendants' properties would not themselves provide a living, they had equipment enabling them to earn other income. In those circumstances, the provision made for the plaintiffs was inadequate and further legacies of $250,000 for Joan and $175,000 for Helen were appropriate, charged on the property passing under clause...

Jurisdiction
Australia
Judgment Date
18 February 2005
Procedural Posture
Family Provision Application Under the Family Provision Act 1982 / Hearing and Judgment
Outcome
Further provision granted to the plaintiffs.
Legal Topics
['family Provision' 'adequate Provision' 'proper Maintenance, Education and Advancement in Life' 'deceased Estate' 'testamentary Provision for Adult Children']
['succession' 'equity'] ['family Provision' 'adequate Provision' 'proper Maintenance, Education and Advancement in Life' 'deceased Estate' 'testamentary Provision for Adult Children']

Case Brief

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Procedural Posture

Family Provision Application Under the Family Provision Act 1982 / Hearing and Judgment

Legal Issues

  1. 1 ["Whether the provision made for Joan Elizabeth Johnston under the deceased's will was inadequate for her proper maintenance, education and advancement in life." "Whether the provision made for Helen Margaret Attwell under the deceased's will was inadequate for her proper maintenance, education and advancement in life." 'What further provision, if any, should be made for the plaintiffs from the estate having regard to their circumstances, the estate, and the claims of the defendants.']

Ratio Decidendi

The will made substantially greater provision for the deceased's sons than for his daughters, while both plaintiffs had demonstrated financial needs. Joan had limited remaining working life, health problems, liabilities and needs for renovations and replacement of her car. Helen had a remaining mortgage and substantial repair needs for the Deniliquin home. Although the defendants' properties would not themselves provide a living, they had equipment enabling them to earn other income. In those circumstances, the provision made for the plaintiffs was inadequate and further legacies of $250,000 for Joan and $175,000 for Helen were appropriate, charged on the property passing under clause...

Court Disposition

Further provision granted to the plaintiffs.

Orders

  • ['That in addition to the provision made for them in the will of the deceased, that Joan Elizabeth Johnston receive a legacy of $250,000 and that Helen Margaret Attwell receive a legacy of $175,000.' 'That the legacies in order 1 above be charged upon the property passing under clause 8(b) of the will of the...