Lewis-Boardman v Adams & anor [2000] NSWSC 1050

Lewis-Boardman v Adams & anor [2000] NSWSC 1050

Proper provision for the adequate maintenance of the Plaintiff, given his age, frailty, dependency, and caring family environment, requires a lump sum of $250,000 from the Deceased's estate in lieu of the right of residence provided in the will, thereby enabling him to remain with his son and daughter-in-law, rather than forcing him into a nursing home. Strict arithmetical assessment overstates the requisite sum; a realistic estimate based on three years in a family setting is appropriate.

Parties
Plaintiff: John Geoffrey Lewis-Boardman; Defendant: Brian Adams; Defendant: Susan Louise Adams
Jurisdiction
Australia
Judgment Date
15 November 2000
Procedural Posture
Family Provision / Judgment
Outcome
Plaintiff's claim allowed in part; order for legacy of $250,000 in lieu of right of residence, plus costs to be paid out of the estate.
Legal Topics
Maintenance of Widower, Adequate Provision From Estate, Right of Residence, Application of Family Provision Act 1982
Succession Law Family Provision Maintenance of Widower Adequate Provision From Estate Right of Residence Application of Family Provision Act 1982

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Parties

John Geoffrey Lewis-Boardman

Plaintiff

Brian Adams

Defendant

Susan Louise Adams

Defendant

Procedural Posture

Family Provision / Judgment

Legal Issues

  1. 1 Whether the Plaintiff was left without adequate provision for his proper maintenance by the will of the Deceased under the Family Provision Act 1982.
  2. 2 Whether the Plaintiff should be enabled to remain in a home environment with his son and daughter-in-law or be restricted to nursing home care.
  3. 3 Appropriate quantification of provision to be made for the Plaintiff from the estate.

Ratio Decidendi

Proper provision for the adequate maintenance of the Plaintiff, given his age, frailty, dependency, and caring family environment, requires a lump sum of $250,000 from the Deceased's estate in lieu of the right of residence provided in the will, thereby enabling him to remain with his son and daughter-in-law, rather than forcing him into a nursing home. Strict arithmetical assessment overstates the requisite sum; a realistic estimate based on three years in a family setting is appropriate.

Court Disposition

Plaintiff's claim allowed in part; order for legacy of $250,000 in lieu of right of residence, plus costs to be paid out of the estate.

Orders

  • In lieu of the right of residence, the Plaintiff is to receive a legacy of $250,000 from the estate, not bearing interest if paid by 15 December 2000, otherwise interest at Supreme Court rates.
  • The costs of the Plaintiff (party and party) and of the Defendants (indemnity) are to be paid from the estate.