Russell v NSW Trustee and Guardian [2013] NSWSC 370

Russell v NSW Trustee and Guardian [2013] NSWSC 370

The Plaintiff was not an eligible person under s 57(1)(e) Succession Act 2006 as he was not a member of the household of the deceased but only a temporary, impermanent visitor; even if there was partial dependency for accommodation, the lack of household membership is fatal to eligibility. Consequently, his claim fails.

Parties
Plaintiff: Tim Russell; Defendant: NSW Trustee & Guardian
Jurisdiction
Australia
Judgment Date
18 April 2013
Procedural Posture
Family Provision Application / Final Judgment
Outcome
Plaintiff's Summons dismissed; Defendant's costs to be paid out of estate
Legal Topics
Family Provision Order, Eligibility Under Succession Act 2006, Proper Maintenance and Advancement, Testamentary Disposition, Member of Household, Partial Dependency
Succession Law Equity Family Provision Order Eligibility Under Succession Act 2006 Proper Maintenance and Advancement Testamentary Disposition Member of Household Partial Dependency

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Parties

Tim Russell

Plaintiff

NSW Trustee & Guardian

Defendant

Procedural Posture

Family Provision Application / Final Judgment

Legal Issues

  1. 1 Whether the Plaintiff is an eligible person under s 57(1)(e) of the Succession Act 2006
  2. 2 Whether there are factors warranting the making of the application under s 59(1)(b)
  3. 3 Whether adequate provision was made for the Plaintiff's proper maintenance, education, or advancement in life

Ratio Decidendi

The Plaintiff was not an eligible person under s 57(1)(e) Succession Act 2006 as he was not a member of the household of the deceased but only a temporary, impermanent visitor; even if there was partial dependency for accommodation, the lack of household membership is fatal to eligibility. Consequently, his claim fails.

Court Disposition

Plaintiff's Summons dismissed; Defendant's costs to be paid out of estate

Orders

  • Order that the Plaintiff's Summons be dismissed.
  • No order as to the Plaintiff's costs so that he will bear his own costs.