Hill v Buckley [2008] NSWSC 1374

Hill v Buckley [2008] NSWSC 1374

Although the plaintiff's evidence about affection and her financial position was sparse, there was just enough evidence that she had been treated like a daughter and lived in the testator's household for about ten years, and the previous will indicated that the testator had strongly contemplated her as a beneficiary before the separation. As she received nothing under the will, the provision for her was inadequate. Balancing her financial vulnerability against the legitimate needs of the brother and sister beneficiaries, a wise and just testator should have provided the plaintiff with one third of the residue of the estate.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Application for Provision Under S 7 of the Family Provision Act 1982 by a Stepchild / Ex Tempore Principal Judgment
Outcome
Application allowed; plaintiff awarded one third of the residue of the estate.
Legal Topics
['stepchild Eligibility' 'factors Warranting Application' 'adequacy of Testamentary Provision' 'assessment of Provision From Estate' 'competing Claims of Beneficiaries' 'relevance of Previous Will']
['succession' 'family Provision'] ['stepchild Eligibility' 'factors Warranting Application' 'adequacy of Testamentary Provision' 'assessment of Provision From Estate' 'competing Claims of Beneficiaries' 'relevance of Previous Will']

Case Brief

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

Application for Provision Under S 7 of the Family Provision Act 1982 by a Stepchild / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff, as a former stepdaughter, was an eligible person within class (d) of the definition of eligible person in s 6 of the Family Provision Act 1982.' 'Whether there were factors warranting the making of the application under s 9 of the Family Provision Act 1982.' 'Whether the absence of provision for the plaintiff in the will was inadequate.' 'What provision, if any, a wise and just testator should have made for the plaintiff having regard to the estate and the needs of other beneficiaries.']

Ratio Decidendi

Although the plaintiff's evidence about affection and her financial position was sparse, there was just enough evidence that she had been treated like a daughter and lived in the testator's household for about ten years, and the previous will indicated that the testator had strongly contemplated her as a beneficiary before the separation. As she received nothing under the will, the provision for her was inadequate. Balancing her financial vulnerability against the legitimate needs of the brother and sister beneficiaries, a wise and just testator should have provided the plaintiff with one third of the residue of the estate.

Court Disposition

Application allowed; plaintiff awarded one third of the residue of the estate.

Orders

  • ['Direct that the plaintiff receive a benefaction of one third of the residue of the estate.' 'The costs of the plaintiff and the defendants are to be paid out of the estate.' 'Otherwise usual order.']