Large v Higham & Ors [2010] NSWSC 104

Large v Higham & Ors [2010] NSWSC 104

The plaintiff was an eligible person and the income from his 12.5% life interest under the will was plainly inadequate for his proper maintenance, education and advancement in life, especially given his limited assets, chronic unemployment, marginal living conditions and low prospects of employment. Although the plaintiff was unlikely to be capable of successfully managing a viable commercial farm, his advancement in life would best be served by a capital legacy enabling him to purchase a small rural property in Tasmania and undertake small-scale growing or hobby farming without merely reducing his social security benefits. A further income-producing capital fund was inappropriate because...

Jurisdiction
Australia
Judgment Date
23 February 2010
Procedural Posture
Family Provision Application Concerning Provision Out of a Deceased Estate / Principal Judgment on Separate Questions Under UCPR R28.2
Outcome
Separate questions ordered to be decided; provision for the plaintiff was found inadequate and the Court found that proper provision should be a legacy of $400,000, with parties directed to bring in short minutes of order.
Legal Topics
['family Provision' 'adequacy of Testamentary Provision' 'maintenance, Education and Advancement in Life' 'notional Estate' 'testamentary Trusts' 'wills, Probate and Administration']
['succession' 'equity'] ['family Provision' 'adequacy of Testamentary Provision' 'maintenance, Education and Advancement in Life' 'notional Estate' 'testamentary Trusts' 'wills, Probate and Administration']

Case Brief

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Procedural Posture

Family Provision Application Concerning Provision Out of a Deceased Estate / Principal Judgment on Separate Questions Under UCPR R28.2

Legal Issues

  1. 1 ["Whether the provision made for the plaintiff by the deceased was adequate for the plaintiff's proper maintenance, education and advancement in life under Family Provision Act 1982 (NSW), s 9(2)." 'If the provision was inadequate, what further provision ought to be ordered for the plaintiff.' 'Whether proper provision should be structured as income under the existing trust, a lump sum to acquire rural property, or other capital provision.']

Ratio Decidendi

The plaintiff was an eligible person and the income from his 12.5% life interest under the will was plainly inadequate for his proper maintenance, education and advancement in life, especially given his limited assets, chronic unemployment, marginal living conditions and low prospects of employment. Although the plaintiff was unlikely to be capable of successfully managing a viable commercial farm, his advancement in life would best be served by a capital legacy enabling him to purchase a small rural property in Tasmania and undertake small-scale growing or hobby farming without merely reducing his social security benefits. A further income-producing capital fund was inappropriate because...

Court Disposition

Separate questions ordered to be decided; provision for the plaintiff was found inadequate and the Court found that proper provision should be a legacy of $400,000, with parties directed to bring in short minutes of order.

Orders

  • ["Pursuant to UCPR r28.2 order that the following questions be decided separately: (a) Whether the provision made for the plaintiff by the deceased was adequate for the plaintiff's proper maintenance, education and advancement in life: Family Provision Act, s 9(2); (b) In the event that the question in (a) be...