Sharkey v Andrew [2007] NSWSC 28

Sharkey v Andrew [2007] NSWSC 28

The plaintiff did not establish that he was a member of the deceased's household. His childhood stays were only visits and lacked the continuity and permanency required for household membership, and the Court was not satisfied that he resided with the deceased from 1981 to 1983 as alleged. Because he was not an eligible person, the Court had no power to make a family provision order in his favour, and the summons was dismissed.

Jurisdiction
Australia
Judgment Date
12 March 2007
Procedural Posture
Application Under the Family Provision Act in Respect of the Estate of the Late Mary Isabell Sharkey / Hearing and Ex Tempore Judgment on Eligibility and Dismissal of Summons
Outcome
Summons dismissed; plaintiff ordered to pay the defendant's costs on the ordinary basis.
Legal Topics
['eligible Person' 'member of Household' 'dependency' "nephew's Claim Against Deceased Estate" 'costs']
['succession Law' 'family Provision' 'equity'] ['eligible Person' 'member of Household' 'dependency' "nephew's Claim Against Deceased Estate" 'costs']

Case Brief

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Procedural Posture

Application Under the Family Provision Act in Respect of the Estate of the Late Mary Isabell Sharkey / Hearing and Ex Tempore Judgment on Eligibility and Dismissal of Summons

Legal Issues

  1. 1 ['Whether the plaintiff, a nephew of the deceased, was an eligible person within paragraph (d) of the Family Provision Act.' "Whether the plaintiff was a member of the deceased's household during childhood visits from 1958 to 1963 or during the alleged period from 1981 to early 1983." 'Whether the plaintiff was wholly or partly dependent upon the deceased.' 'Whether the Court had power to make a family provision order in favour of the plaintiff.']

Ratio Decidendi

The plaintiff did not establish that he was a member of the deceased's household. His childhood stays were only visits and lacked the continuity and permanency required for household membership, and the Court was not satisfied that he resided with the deceased from 1981 to 1983 as alleged. Because he was not an eligible person, the Court had no power to make a family provision order in his favour, and the summons was dismissed.

Court Disposition

Summons dismissed; plaintiff ordered to pay the defendant's costs on the ordinary basis.

Orders

  • ['The summons be dismissed.' "The plaintiff pay the defendant's costs on the ordinary basis."]