Marshall v Public Trustee [2006] NSWSC 402

Marshall v Public Trustee [2006] NSWSC 402

Victor's delay was sufficiently explained by his lack of notice of time limits and the unproductive conduct of the solicitor he had approached, with no identified prejudice or unconscionable conduct, so time was extended. Both plaintiffs were eligible stepsons because they had been part of the deceased's household and partly dependent on him, and their relationships with the deceased gave rise to factors warranting their applications. Having regard to their lack of assets, dependence on pensions or limited work, health and personal difficulties, Victor's contribution to the deceased's property, the estate size, and the limited claims of next of kin who had no contact with the deceased...

Jurisdiction
Australia
Judgment Date
08 May 2006
Procedural Posture
Application Under the Family Provision Act in Respect of an Intestate Estate / Substantive Hearing of Two Proceedings Heard Together, Including an Extension of Time Application for Victor Atamanjuk Marshall
Outcome
Family provision orders made; time extended; provision ordered for both plaintiffs with a protective trust for Peter Marshall.
Legal Topics
['intestacy' 'stepchildren' 'eligible Persons' 'factors Warranting the Making of an Application' 'extension of Time' 'adequate and Proper Provision' 'protective Trust']
['succession' 'family Provision'] ['intestacy' 'stepchildren' 'eligible Persons' 'factors Warranting the Making of an Application' 'extension of Time' 'adequate and Proper Provision' 'protective Trust']

Case Brief

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Procedural Posture

Application Under the Family Provision Act in Respect of an Intestate Estate / Substantive Hearing of Two Proceedings Heard Together, Including an Extension of Time Application for Victor Atamanjuk Marshall

Legal Issues

  1. 1 ['Whether Victor Atamanjuk Marshall should be granted an extension of time to bring his Family Provision Act application.' "Whether each plaintiff, as a stepson, was an eligible person who had been a member of the deceased's household and partly dependent on the deceased." 'Whether there were factors warranting the making of each application under s 9(1) of the Family Provision Act.' 'Whether the plaintiffs had been left without adequate and proper provision for their maintenance, education and advancement in life.' "What provision should be made from the estate, and whether Peter Marshall's share should be managed through a protective trust."]

Ratio Decidendi

Victor's delay was sufficiently explained by his lack of notice of time limits and the unproductive conduct of the solicitor he had approached, with no identified prejudice or unconscionable conduct, so time was extended. Both plaintiffs were eligible stepsons because they had been part of the deceased's household and partly dependent on him, and their relationships with the deceased gave rise to factors warranting their applications. Having regard to their lack of assets, dependence on pensions or limited work, health and personal difficulties, Victor's contribution to the deceased's property, the estate size, and the limited claims of next of kin who had no contact with the deceased...

Court Disposition

Family provision orders made; time extended; provision ordered for both plaintiffs with a protective trust for Peter Marshall.

Orders

  • ["Time in Peter's claim was extended to the date of filing of the summons." 'The three next of kin, Nikolaj Vasiljevich Atamanjuk, Fedor Danilovich Atamanjuk and Vasilej Danilovich Atamanjuk, shall each receive a legacy of $5,000.' 'The balance of the estate will be divided between Peter Marshall and Victor...