Sharon Ann McCarthy and Anor v Royce Alphonsus Dorney [2007] NSWSC 742

Sharon Ann McCarthy and Anor v Royce Alphonsus Dorney [2007] NSWSC 742

The plaintiffs are not eligible persons under s 6(1)(d) of the Family Provision Act 1982 as they were not in fact partly dependent on the deceased; the support received was to their parents and did not amount to dependency. Even if eligible, there are no factors warranting the making of the application. Accordingly, the proceedings are to be dismissed.

Parties
Plaintiff: Sharon Ann McCarthy; Plaintiff: Trevor Francis Dorney; Defendant: Royce Alphonsus Dorney
Jurisdiction
Australia
Judgment Date
10 July 2007
Procedural Posture
Succession Family Provision Application / Judgment After Hearing
Outcome
Dismissal of summons; costs orders against plaintiffs
Legal Topics
Eligibility of Grandchildren, Dependency Requirements Under Family Provision Act 1982, Factors Warranting Application, Proper Maintenance and Advancement, Competing Claims of Beneficiaries
Succession Law Family Provision Eligibility of Grandchildren Dependency Requirements Under Family Provision Act 1982 Factors Warranting Application Proper Maintenance and Advancement Competing Claims of Beneficiaries

Case Brief

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Parties

Sharon Ann McCarthy

Plaintiff

Trevor Francis Dorney

Plaintiff

Royce Alphonsus Dorney

Defendant

Procedural Posture

Succession Family Provision Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the plaintiffs are 'eligible persons' under s 6(1)(d) Family Provision Act 1982
  2. 2 Whether plaintiffs were partly dependent on the deceased
  3. 3 Whether factors warranting the making of the application exist

Ratio Decidendi

The plaintiffs are not eligible persons under s 6(1)(d) of the Family Provision Act 1982 as they were not in fact partly dependent on the deceased; the support received was to their parents and did not amount to dependency. Even if eligible, there are no factors warranting the making of the application. Accordingly, the proceedings are to be dismissed.

Court Disposition

Dismissal of summons; costs orders against plaintiffs

Orders

  • The summons be dismissed.
  • The Plaintiffs pay the costs of the Defendant, such costs to be on the party and party basis.