Lesley TRITTON v Leslie David ROGERS; Estate of the late Christian Mark MULLER [2002] NSWSC 1169

Lesley TRITTON v Leslie David ROGERS; Estate of the late Christian Mark MULLER [2002] NSWSC 1169

The plaintiff gave a sufficient explanation for the delay because she did not become aware of her Family Provision Act rights until about mid-2000, lacked funds, unsuccessfully sought legal aid, and proceedings were commenced shortly after current solicitors were instructed. The sole beneficiary Axel would not suffer unacceptable prejudice because provision to his custodial mother would indirectly benefit him, and there was no unconscionable conduct. The plaintiff was eligible under s 6(1)(d) because she had lived in the same household as the deceased and was dependent on him during their approximately five-year de facto relationship. Additional factors existed under s 9, including her...

Jurisdiction
Australia
Judgment Date
09 December 2002
Procedural Posture
Family Provision Act 1982 Application for Provision Out of the Estate of the Late Christian Mark Muller / Judgment on Summons Seeking Provision Under S 7 and Extension of Time
Outcome
Time was extended and the plaintiff was awarded a lump sum of $25,000 out of the estate, with both parties' costs payable out of the estate on specified bases.
Legal Topics
['former De Facto Partner' 'extension of Time' 'eligible Person' 'dependency' 'section 9 Additional Factors' 'provision From Deceased Estate' 'costs From Estate']
['succession' 'family Provision'] ['former De Facto Partner' 'extension of Time' 'eligible Person' 'dependency' 'section 9 Additional Factors' 'provision From Deceased Estate' 'costs From Estate']

Case Brief

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Procedural Posture

Family Provision Act 1982 Application for Provision Out of the Estate of the Late Christian Mark Muller / Judgment on Summons Seeking Provision Under S 7 and Extension of Time

Legal Issues

  1. 1 ['Whether time for bringing the Family Provision Act 1982 application should be extended under s 16.' 'Whether the plaintiff was an eligible person under s 6(1)(d).' 'Whether there were additional factors under s 9 warranting an order in favour of the plaintiff.' "What provision, if any, should be made for the plaintiff out of the deceased's estate."]

Ratio Decidendi

The plaintiff gave a sufficient explanation for the delay because she did not become aware of her Family Provision Act rights until about mid-2000, lacked funds, unsuccessfully sought legal aid, and proceedings were commenced shortly after current solicitors were instructed. The sole beneficiary Axel would not suffer unacceptable prejudice because provision to his custodial mother would indirectly benefit him, and there was no unconscionable conduct. The plaintiff was eligible under s 6(1)(d) because she had lived in the same household as the deceased and was dependent on him during their approximately five-year de facto relationship. Additional factors existed under s 9, including her...

Court Disposition

Time was extended and the plaintiff was awarded a lump sum of $25,000 out of the estate, with both parties' costs payable out of the estate on specified bases.

Orders

  • ['Time for bringing these proceedings be extended up to and including 19 April 2001.' 'Out of the estate of the deceased the plaintiff be paid a lump sum of $25,000.00.' "The plaintiff's costs be paid out of the estate on a party/party basis." "The defendant's costs be paid out of the estate on an indemnity basis."]