Chodyko v Southern [2002] NSWSC 204

Chodyko v Southern [2002] NSWSC 204

The plaintiff was an eligible person and her financial and material circumstances justified significant provision from the estate. Given the small size of the distributable estate after costs, provision sufficient to discharge the mortgage and assist with ongoing shortfall between income and expenses could not be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 February 2002
Procedural Posture
Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate of the Plaintiff's Late Father / Judgment on Summons Filed 6 February 2001
Outcome
Plaintiff awarded the entirety of the estate absolutely; costs ordered out of the estate.
Legal Topics
['eligible Person' 'provision for Maintenance, Education and Advancement in Life' 'competing Testamentary Beneficiaries' 'costs Out of Estate']
['succession' 'family Provision'] ['eligible Person' 'provision for Maintenance, Education and Advancement in Life' 'competing Testamentary Beneficiaries' 'costs Out of Estate']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate of the Plaintiff's Late Father / Judgment on Summons Filed 6 February 2001

Legal Issues

  1. 1 ["Whether the plaintiff, as the only child of the deceased, was entitled to provision out of the deceased's estate under the Family Provision Act 1982." 'What provision should be made for the plaintiff having regard to her financial and material circumstances, the size of the estate, and the competing claims of the beneficiaries named in the will.' 'Whether the plaintiff should receive the entirety of the estate or whether some benefit should remain for the four sisters named as beneficiaries in the will.']

Ratio Decidendi

The plaintiff was an eligible person and her financial and material circumstances justified significant provision from the estate. Given the small size of the distributable estate after costs, provision sufficient to discharge the mortgage and assist with ongoing shortfall between income and expenses could not be made while leaving a balance for the will beneficiaries. The plaintiff therefore had to receive the entirety of the estate absolutely.

Court Disposition

Plaintiff awarded the entirety of the estate absolutely; costs ordered out of the estate.

Orders

  • ['Order that the plaintiff receive the entirety of the estate of the late Archibald Edward Arthur Southern absolutely.' 'Order that the costs of the plaintiff on the party and party basis and the costs of the defendants on the indemnity basis be paid out of the estate of the deceased.']