Hardiman-Burt v Gordon [2008] NSWSC 395

Hardiman-Burt v Gordon [2008] NSWSC 395

The Plaintiff was an eligible person and, despite having obtained the matrimonial home by survivorship and a share of residue, was left without adequate provision for her proper maintenance because her income was inadequate to meet her outgoings and the Deceased had made his will under an incorrect belief that she would receive a far greater United Kingdom pension. Given her secure accommodation, the estate size, the competing claims of the Deceased's children, and the Plaintiff's circumstances including incomplete disclosure and gambling, the appropriate further provision was a legacy of $150,000 in addition to the benefit given by the will.

Jurisdiction
Australia
Judgment Date
01 May 2008
Procedural Posture
Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Plaintiff's Late Husband / Principal Judgment After Hearing
Outcome
Plaintiff awarded further family provision from the estate.
Legal Topics
["widow's Family Provision Claim" 'adequate Provision for Proper Maintenance' 'financial and Material Circumstances of Applicant' 'compulsive Gambling' 'mistaken Belief About Pension Entitlement' 'costs Out of Estate']
['succession' 'family Provision'] ["widow's Family Provision Claim" 'adequate Provision for Proper Maintenance' 'financial and Material Circumstances of Applicant' 'compulsive Gambling' 'mistaken Belief About Pension Entitlement' 'costs Out of Estate']

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

Proceedings Under the Family Provision Act 1982 for Provision Out of the Estate And/or Notional Estate of the Plaintiff's Late Husband / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Plaintiff, as widow of the Deceased, was an eligible person with standing to bring the proceedings.' "Whether the provisions of the Deceased's will left the Plaintiff without adequate provision for her proper maintenance." 'What further provision, if any, should be made for the Plaintiff from the estate.' "How the Plaintiff's financial circumstances, incomplete disclosure, gambling activities, the size of the estate, and the competing claims of the Deceased's children affected the claim."]

Ratio Decidendi

The Plaintiff was an eligible person and, despite having obtained the matrimonial home by survivorship and a share of residue, was left without adequate provision for her proper maintenance because her income was inadequate to meet her outgoings and the Deceased had made his will under an incorrect belief that she would receive a far greater United Kingdom pension. Given her secure accommodation, the estate size, the competing claims of the Deceased's children, and the Plaintiff's circumstances including incomplete disclosure and gambling, the appropriate further provision was a legacy of $150,000 in addition to the benefit given by the will.

Court Disposition

Plaintiff awarded further family provision from the estate.

Orders

  • ['In addition to the benefit given to her by the will of the late Leslie Gordon Burt, the Plaintiff receive a legacy in the sum of $150,000, not to bear interest if paid on or before 29 May 2008, and if not so paid to bear interest at the rates prescribed for unpaid legacies under the Probate and Administration Act...