Nicholas v Nicholas [2006] NSWSC 1244

Nicholas v Nicholas [2006] NSWSC 1244

Each of the Plaintiffs, as eligible persons, has established entitlement to provision for advancement in life, and Karley and Tony are entitled to provision for maintenance. Provision is to be made by way of legacies from the notional estate, given the competing claim of the Defendant and the facts that all significant assets passed by survivorship. The Court is satisfied its powers under the Family Provision Act allow designation of the Defendant's current assets as notional estate to satisfy these legacies.

Parties
First Plaintiff: Alana Kim Nicholas; Second Plaintiff: Karley Sherie Nicholas; Third Plaintiff: Tony Alan Nicholas; Defendant: Shareena Mae Nicholas
Jurisdiction
Australia
Judgment Date
22 November 2006
Procedural Posture
Family Provision Proceeding / Judgment on Entitlement and Provision, Standing Over for Short Minutes and Costs
Outcome
Parties entitled to provision under the Family Provision Act from notional estate; matter stood over for preparation of short minutes and costs arguments.
Legal Topics
Family Provision, Notional Estate, Prescribed Transaction, Testamentary Dispositions
Succession Law Equity Family Provision Notional Estate Prescribed Transaction Testamentary Dispositions

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Parties

Alana Kim Nicholas

First Plaintiff

Karley Sherie Nicholas

Second Plaintiff

Tony Alan Nicholas

Third Plaintiff

Shareena Mae Nicholas

Defendant

Procedural Posture

Family Provision Proceeding / Judgment on Entitlement and Provision, Standing Over for Short Minutes and Costs

Legal Issues

  1. 1 Whether the Plaintiffs, as adult children, have been left without adequate provision for their maintenance or advancement in life
  2. 2 Whether provision should be made from the notional estate due to insufficient estate assets
  3. 3 Competing claim of estranged widow

Ratio Decidendi

Each of the Plaintiffs, as eligible persons, has established entitlement to provision for advancement in life, and Karley and Tony are entitled to provision for maintenance. Provision is to be made by way of legacies from the notional estate, given the competing claim of the Defendant and the facts that all significant assets passed by survivorship. The Court is satisfied its powers under the Family Provision Act allow designation of the Defendant's current assets as notional estate to satisfy these legacies.

Court Disposition

Parties entitled to provision under the Family Provision Act from notional estate; matter stood over for preparation of short minutes and costs arguments.

Orders

  • Karley Sherie Nicholas and Tony Alan Nicholas each entitled to a legacy of $40,000 from notional estate
  • Alana Kim Nicholas entitled to a legacy of $20,000 from notional estate