Bouttell v Rapisarda [2014] NSWSC 1192

Bouttell v Rapisarda [2014] NSWSC 1192

The will did not make adequate and proper provision for Ms Boutell’s maintenance; a right of residence is insufficient as it lacks certainty, flexibility, and security. The proper order is a legacy of $300,000 in place of the provision made by the will, taking into account Ms Boutell’s own resources, competing claims by adult children, and the size of the estate.

Jurisdiction
Australia
Judgment Date
27 August 2014
Procedural Posture
Succession Family Provision / Principal Judgment
Outcome
Plaintiff to have a legacy of $300,000 in place of the provision made for her by the deceased's will. Usual costs order. Parties to bring in short minutes of order.
Legal Topics
['family Provision Application' 'adequacy of Provision for Widow' 'lump Sum Legacy Versus Right of Residence']
['succession Law' 'equity'] ['family Provision Application' 'adequacy of Provision for Widow' 'lump Sum Legacy Versus Right of Residence']

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Procedural Posture

Succession Family Provision / Principal Judgment

Legal Issues

  1. 1 ['Whether the will made adequate and proper provision for the widow under the Succession Act 2006 (NSW)' 'Whether provision should be a lump sum legacy or other form' 'What amount of provision is appropriate for the widow']

Ratio Decidendi

The will did not make adequate and proper provision for Ms Boutell’s maintenance; a right of residence is insufficient as it lacks certainty, flexibility, and security. The proper order is a legacy of $300,000 in place of the provision made by the will, taking into account Ms Boutell’s own resources, competing claims by adult children, and the size of the estate.

Court Disposition

Plaintiff to have a legacy of $300,000 in place of the provision made for her by the deceased's will. Usual costs order. Parties to bring in short minutes of order.

Orders

  • ["Plaintiff to have a legacy of $300,000 in place of the provision made for her by the deceased's will." 'Costs: Ms Boutell to have her costs on the ordinary basis out of the estate; executor to have his on the indemnity basis (unless otherwise agreed).' 'Parties to bring in short minutes of order.']