Margaret Prior v Tanya Lynne Kerrison [2017] NSWSC 1295

Margaret Prior v Tanya Lynne Kerrison [2017] NSWSC 1295

Although Brian John Moss wished to give Margaret Prior only a life interest in Number 143 and a small legacy, the conceded inadequacy of the will, her 30-year de facto relationship with him, her age and limited assets required further provision. A Crisp order would more closely reflect the testamentary wishes but was inappropriate because it would require a long-term tenancy in circumstances of hostility, would not provide funds for rates, insurance and maintenance, and would not provide enough money for future alternative accommodation. Balancing those matters against the parties' separated finances, the deceased's testamentary intentions, the small estate, and the competing claims of...

Jurisdiction
Australia
Judgment Date
14 August 2017
Procedural Posture
Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Principal Judgment
Outcome
Family provision relief granted for Margaret Prior in lieu of her entitlement under the will; the Court indicated it would hear the parties on the precise form of orders reflecting the provisions stated in the judgment.
Legal Topics
['family Provision Order' 'de Facto Partner' 'adequate Provision' 'crisp Order' 'testamentary Freedom' 'competing Claims of Adult Children']
['equity' 'succession'] ['family Provision Order' 'de Facto Partner' 'adequate Provision' 'crisp Order' 'testamentary Freedom' 'competing Claims of Adult Children']

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Procedural Posture

Family Provision Claim Under S 59 of the Succession Act 2006 (nsw) / Principal Judgment

Legal Issues

  1. 1 ["Whether Margaret Prior was entitled to a family provision order out of Brian John Moss's estate under s 59 of the Succession Act 2006 (NSW)." 'What provision ought to be made for Margaret Prior having regard to the will, her 30-year de facto relationship with the deceased, her financial circumstances, the testamentary intentions of the deceased, the separated finances of the relationship, and the competing claims of Tanya Lynne Kerrison and Craig John Moss.' "Whether a Crisp order should be made for Margaret Prior's benefit, including in circumstances of hostility between Margaret Prior and the defendants."]

Ratio Decidendi

Although Brian John Moss wished to give Margaret Prior only a life interest in Number 143 and a small legacy, the conceded inadequacy of the will, her 30-year de facto relationship with him, her age and limited assets required further provision. A Crisp order would more closely reflect the testamentary wishes but was inappropriate because it would require a long-term tenancy in circumstances of hostility, would not provide funds for rates, insurance and maintenance, and would not provide enough money for future alternative accommodation. Balancing those matters against the parties' separated finances, the deceased's testamentary intentions, the small estate, and the competing claims of...

Court Disposition

Family provision relief granted for Margaret Prior in lieu of her entitlement under the will; the Court indicated it would hear the parties on the precise form of orders reflecting the provisions stated in the judgment.

Orders

  • ['Number 143 should pass to Margaret Prior in fee simple.' 'The estate should provide Margaret Prior with a loan of $120,000 to enable her to create a fund to maintain Number 143, pay rates, taxes and insurance, and partly assist her in the future to obtain alternative accommodation.' 'Margaret Prior should charge...