Large v Higham [No 2] [2010] NSWSC 560

Large v Higham [No 2] [2010] NSWSC 560

The Sylvania Waters Fund (one half of the proceeds of sale of the property known as Sylvania Waters) is designated as notional estate under the Family Provision Act 1982 (NSW), as the testator had the power to sever the joint tenancy and did not do so. There was no concurrent express or implied contractual restriction preventing severance, and Maria Large did not provide full valuable consideration to exclude the operation of the notional estate rules. Provision for the plaintiff in the sum of $400,000 (in lieu of provision in the will) is to be paid out of this notional estate, and residual estate entitlements are realigned for the remaining beneficiaries. Costs are apportioned with the...

Jurisdiction
Australia
Judgment Date
28 May 2010
Procedural Posture
Family Provision / Succession / Consequential Orders After Final Judgment
Outcome
Provision for plaintiff granted; Sylvania Waters Fund designated notional estate; consequential orders and costs orders made
Legal Topics
['family Provision' 'notional Estate' 'joint Tenancy' 'costs' 'superannuation Fund' 'wills and Probate']
['succession' 'equity'] ['family Provision' 'notional Estate' 'joint Tenancy' 'costs' 'superannuation Fund' 'wills and Probate']

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Procedural Posture

Family Provision / Succession / Consequential Orders After Final Judgment

Legal Issues

  1. 1 ['Whether one-half of the Sylvania Waters property is notional estate under the Family Provision Act 1982 (NSW)' "Whether the testator's omission to sever joint tenancy constitutes a prescribed transaction" "Whether Maria Large's interest is protected as full consideration under the Act" 'Whether the residual estate interests and other beneficiaries (especially Oliver Scott) require adjustment due to the order for provision' 'Appropriate apportionment of costs between parties']

Ratio Decidendi

The Sylvania Waters Fund (one half of the proceeds of sale of the property known as Sylvania Waters) is designated as notional estate under the Family Provision Act 1982 (NSW), as the testator had the power to sever the joint tenancy and did not do so. There was no concurrent express or implied contractual restriction preventing severance, and Maria Large did not provide full valuable consideration to exclude the operation of the notional estate rules. Provision for the plaintiff in the sum of $400,000 (in lieu of provision in the will) is to be paid out of this notional estate, and residual estate entitlements are realigned for the remaining beneficiaries. Costs are apportioned with the...

Court Disposition

Provision for plaintiff granted; Sylvania Waters Fund designated notional estate; consequential orders and costs orders made

Orders

  • ['One-half of the proceeds of sale of the Sylvania Waters property be designated as notional estate to the extent necessary to satisfy the following orders.' 'The second defendant pay to the plaintiff out of the notional estate the sum of $400,000 such amount being in lieu of the provision for the plaintiff...