Campbell v Campbell [2010] NSWSC 863

Campbell v Campbell [2010] NSWSC 863

The plaintiff had not been left with adequate provision for his proper maintenance, education and advancement in life given his current circumstances. Adequate provision in this case required an amount sufficient to give plaintiff reasonable prospects of retaining his current home. The estate was sufficient to make such provision, and accordingly the plaintiff should receive 50% of the proceeds of sale of the Gladesville property after deducting costs.

Parties
Plaintiff: Mark Hunter Campbell; Defendant: Archie Campbell
Jurisdiction
Australia
Judgment Date
06 August 2010
Procedural Posture
Family Provision Application / Judgment After Hearing (no Appearance by Defendant)
Outcome
Application granted in part; orders made for provision to plaintiff from estate, costs ordered on party/party basis, liberty to apply granted.
Legal Topics
Family Provision Act 1982, Adequacy of Provision for Adult Child, Testamentary Disposition
Family Provision Succession Law Family Provision Act 1982 Adequacy of Provision for Adult Child Testamentary Disposition

Case Brief

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Parties

Mark Hunter Campbell

Plaintiff

Archie Campbell

Defendant

Procedural Posture

Family Provision Application / Judgment After Hearing (no Appearance by Defendant)

Legal Issues

  1. 1 Whether the will made adequate provision for the plaintiff's proper maintenance, education, and advancement in life under s 7 Family Provision Act 1982
  2. 2 What provision should be ordered if the will is inadequate

Ratio Decidendi

The plaintiff had not been left with adequate provision for his proper maintenance, education and advancement in life given his current circumstances. Adequate provision in this case required an amount sufficient to give plaintiff reasonable prospects of retaining his current home. The estate was sufficient to make such provision, and accordingly the plaintiff should receive 50% of the proceeds of sale of the Gladesville property after deducting costs.

Court Disposition

Application granted in part; orders made for provision to plaintiff from estate, costs ordered on party/party basis, liberty to apply granted.

Orders

  • Plaintiff to receive 50% of proceeds of sale of Gladesville house (after deducting costs of sale and costs of proceedings), in place of any gift under the will.
  • Plaintiff's costs on party/party basis paid out of the proceeds of sale of the Gladesville property.