FILLINGHAM v HARRISON & CARRETTE [2012] NSWSC 1145

FILLINGHAM v HARRISON & CARRETTE [2012] NSWSC 1145

The plaintiff was an eligible person because she remained married to the deceased at his death. The benefits provided at separation did not amount to an informal property settlement sufficient to end any moral duty, because the plaintiff had contributed significantly to the photography business and the benefits received after separation totalled at most $15,298.00, whereas an expected property settlement would have exceeded $50,000.00. Given the deceased made no provision for the plaintiff, her modest financial circumstances, her contributions to the business, and the competing needs of the deceased's children, adequate provision had not been made and a legacy of $125,000.00 was...

Jurisdiction
Australia
Judgment Date
05 October 2012
Procedural Posture
Application Pursuant to the Succession Act 2006 NSW in Respect of the Estate of Peter Stanley Carrette / Hearing; Principal Judgment
Outcome
Family provision order made for the plaintiff in the sum of $125,000.00, with costs and interest orders.
Legal Topics
['family Provision Claim' 'competing Claims or Interests' 'informal Property Settlement on Separation' 'moral Obligation to Separated Spouse' 'adequate and Proper Provision' 'notional Estate' 'costs From Estate']
['wills and Estates' 'succession' 'family Provision'] ['family Provision Claim' 'competing Claims or Interests' 'informal Property Settlement on Separation' 'moral Obligation to Separated Spouse' 'adequate and Proper Provision' 'notional Estate' 'costs From Estate']

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Procedural Posture

Application Pursuant to the Succession Act 2006 NSW in Respect of the Estate of Peter Stanley Carrette / Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff, as the deceased's widow, was an eligible person under the Succession Act 2006 NSW." 'Whether arrangements made at separation amounted to an informal property settlement such that no moral duty remained owing to the plaintiff.' "Whether the deceased made adequate provision for the plaintiff's proper maintenance, education and advancement in life." "What provision, if any, should be made for the plaintiff having regard to the estate, her circumstances, her contributions, and the claims of the deceased's children." 'Whether prior distributions from the estate were protected under s 94(1) of the Succession Act.']

Ratio Decidendi

The plaintiff was an eligible person because she remained married to the deceased at his death. The benefits provided at separation did not amount to an informal property settlement sufficient to end any moral duty, because the plaintiff had contributed significantly to the photography business and the benefits received after separation totalled at most $15,298.00, whereas an expected property settlement would have exceeded $50,000.00. Given the deceased made no provision for the plaintiff, her modest financial circumstances, her contributions to the business, and the competing needs of the deceased's children, adequate provision had not been made and a legacy of $125,000.00 was...

Court Disposition

Family provision order made for the plaintiff in the sum of $125,000.00, with costs and interest orders.

Orders

  • ['That the plaintiff receive a legacy out of the estate of the deceased in the sum of $125,000.00;' "The plaintiff's costs on the ordinary basis and the defendants' costs on the indemnity basis be paid or retained out of the estate of the deceased;" 'Interest is to run at the rate provided for under the Probate and...