Flick v Moore; Estate of Shirley Elaine Moore [2006] NSWSC 356

Flick v Moore; Estate of Shirley Elaine Moore [2006] NSWSC 356

The plaintiff had lived with the testatrix for much of 30 years, had limited income and assets, and the only substantial estate asset was the Mayfield property. Because estate and litigation costs meant the property would have to be sold, the will's provision of a right to reside did not provide adequate accommodation even on the testatrix's own stated intentions. In the circumstances of the small estate and the lack of goodwill necessary for a Crisp order, proper provision was a legacy of $130,000 in lieu of the will provision.

Jurisdiction
Australia
Judgment Date
27 April 2006
Procedural Posture
Application Under the Family Provision Act 1982 / Ex Tempore Judgment
Outcome
Application allowed; family provision order made in favour of the plaintiff.
Legal Topics
["testator's Family Provision and Maintenance" 'de Facto Partner Provision' 'adequacy of Provision Under Will' 'right to Reside' 'costs From Estate']
['succession'] ["testator's Family Provision and Maintenance" 'de Facto Partner Provision' 'adequacy of Provision Under Will' 'right to Reside' 'costs From Estate']

Case Brief

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Procedural Posture

Application Under the Family Provision Act 1982 / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff under the testatrix's will was adequate for his proper maintenance." 'What provision, if any, should be made for the plaintiff in lieu of the right to reside and quarter share provided by the will.' 'Whether the plaintiff should receive a capital legacy to obtain accommodation rather than a right to reside in the Mayfield property.']

Ratio Decidendi

The plaintiff had lived with the testatrix for much of 30 years, had limited income and assets, and the only substantial estate asset was the Mayfield property. Because estate and litigation costs meant the property would have to be sold, the will's provision of a right to reside did not provide adequate accommodation even on the testatrix's own stated intentions. In the circumstances of the small estate and the lack of goodwill necessary for a Crisp order, proper provision was a legacy of $130,000 in lieu of the will provision.

Court Disposition

Application allowed; family provision order made in favour of the plaintiff.

Orders

  • ['In lieu of the provision made for him under the will of the late Shirley Elaine Moore the plaintiff is to receive a legacy of $130,000.' 'The legacy is not to carry interest if paid within 28 days of the plaintiff vacating 16 Ida Street, Mayfield but thereafter is to carry interest as if it were a legacy in the...